FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N.W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9933

November 14, 2011

ORDER ON RESPONDENT’S MOTION FOR SUMMARY DECISION

            Respondent Austin Powder Company (“Austin”), has filed a motion for summary decision, pursuant to 29 C.F.R. § 2700.67, pertaining to two violations cited by MSHA, Citation Number 8237123, (hereinafter “Citation”), a section 104(d)(1) citation and Order Number 8235035, (hereinafter “Order”), a section 104(d)(1) order. Reduced to their essence, both matters involve alleged ground control violations; the Citation asserting that flyrock was ejected beyond the permit blast area; and the Order asserting that there was a failure to have highwalls “presplit.” Austin contends that “[b]ecause a flyrock event alone is not a violation of the Ground Control Plan, and because Austin Powder complied with every provision of [its] Ground Control Plan, the Orders (sic) must be vacated as a matter of law.” Motion at 2. For the reasons which follow, Austin’s Motion is DENIED.

            In a motion for summary decision, the moving party must meet its initial burden of demonstrating an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response. U.S. v. $92,203.00 in U.S. Currency, 537 F.3d 504,507 (5^th Cir. 2008). Upon review of Austin’s Motion, it became clear to the Court that Respondent failed in its burden of establishing that there is no genuine issue of any material fact and further failed to demonstrate that it is entitled to summary decision as a matter of law. Here, the Motion was deficient to the point that there was no need for the Court to wait for MSHA’s response.

Austin Powder’s Motion

            Austin relates that on August 28, 2009 a blasting at its mine caused a rock to exit the mine property, damaging a nearby home. A revised ground control plan resulted and, among other aspects, that revised plan “required that shots be designed and fired so as to not have ‘direct backpressures towards any outside areas or open faces that do not have sufficient support to prevent material from being ejected from the permitted area or producing flyrock.’” Motion at 2-3. Respondent declares that “the plan was silent as to whether pre-split holes were required to be drilled and shot.” Id. at 3. Austin further asserts that, after the remedial plan was in place, MSHA was present during “initial detonations” in which no pre-splitting was done and that MSHA did not inform Austin that pre-splitting was required. Id.

            Respondent admits that less than 2 months after the August 2009 blasting event, as described above, another event occurred in which flyrock struck a home, causing a hole in the home’s roof. However, Austin denies that hole in the home’s roof was created by flyrock. That disputed event at least resulted in MSHA’s issuance of Citation Number 8237123, the section 104 (d)(1) citation, issued on October 28, 2009. Then, two days later, MSHA issued Order Number 8235035, alleging the failure to pre-split before blasting.

            As Respondent also admits, the remedial blast plan “begins on page 8 of [its] Revised Ground Control Plan.” (“Revised Plan”) Id. at 4. Austin then proceeds to relate various aspects of the Revised Plan. In that process, it describes paragraph 13 of the Revised Plan as “[p]erhaps most pertinent to the case at hand.” Id. at 5. As referred to above, Austin acknowledges that the provision states, “[T]he Blaster will neither design nor fire any blast with direct backpressures towards any outside areas or open faces that do not have sufficient support to prevent material from being ejected from the permitted area or producing flyrock.” Id. (emphasis added). Not exactly accomplishing the presumed goal of Respondent’s Motion, as the Court sees it, Respondent’s quoted provision from the Revised Plan suggests that a motion for summary judgment indeed may be in order, but against Austin.

            Elaborating upon its arguments, Austin revisits Order number 8235035, and notes that several pages of the Ground Control Plan, pages 2, 3 and 4, all make reference to ‘pre-splitting,’ b but Austin’s key point is that the Remedial Blast Plan makes no reference to ‘pre-splitting.’ Id. at 7-8. The obvious point of Austin is that because the Remedial Blast Plan does not refer to ‘pre-splitting,’ it no longer applies. To demonstrate that the plan no longer carried over the requirement for pre-splitting, Austin points again to “[t]estimony” of its employees that the Remedial Plan applied. Id. at 8-9. There, it relates that its witnesses stated that no MSHA representative told Austin that pre-splitting was required during the initial blasts following the implementation of the remedial blast plan. Id.

            Later in its Motion, Austin shifts the direction that its argument had been taking, to “evidence in the record” that the blast responsibility lies with the “blaster in charge,” not Austin. Id. Austin does not point to the location of that “evidence.” Similarly, it refers to “evidence in the record [which] demonstrates that it is the responsibility of the blaster in charge . . .” Id. at 5. Later in the same paragraph the Motion refers to the blaster’s failure to notify Austin, with no cite to a deposition or any other evidentiary source and, regarding whether flyrock constitutes a violation, and acknowledges there is “testimony” to the contrary. Id. Conflicts in testimony are anathema to a motion for summary judgment.

            Austin then moves to the second “Order,” Order number 8237126, this time referring to a section 104(b) Order, which was issued on November 13, 2009. That Order refers to a flyrock event, described in the Order as “flyrock . . . left the mine property, and struck the roof of a home in Ousley Branch” which event is alleged to have occurred on October 20, 2009. The is the Motion’s first reference to Order number 8237126, but at least it is the Order contained in Austin’s contest as set forth in KENT 2010 0249. Confusion aside, Austin makes two points. First it refers to the “testimony” of MSHA inspector Todd Belcher, who in his deposition apparently conceded that flyrock can occur under any Blast Plan. However, Mr. Belcher apparently also stated in his deposition that the blast in issue was not designed “with direct back pressures towards any outside area or open face.” Id. at 11. This issue, preventing “direct back pressures,” is part of the allegation within Citation No. 8237123. Accordingly, for this event too, Austin is maintaining that the Remedial Plan did not require pre-splitting and that, in any event, if blame is to be placed, it must be on the “blaster-in-charge,” which individual, Austin states, “was not an agent of the Operator.” Id. The problem for Austin is that, in its own Motion it acknowledges there is an evidentiary conflict.

            The final parts of Austin’s Motion, as contained in parts “V” and “VI,” entirely leave the realm of summary judgment, asserting that the unwarrantable failure findings in Order 8235035 and Order 8237126, should be vacated. Id. at 12- 16. Here, Austin submits that “[e]ven if the first seven pages of the plan are ultimately deemed valid, it was a reasonable interpretation on the part of Austin Powder to strictly follow the Remedial Blast Plan beginning on page 8.” Id. at 13. This claim, literally using Austin’s own words, as just described above, contains an incredible assertion, as Austin has contended that the Blast Plan, in its Remedial form, starts on page 8, the previous 7 pages having vanished. To support this aspect of its motion for summary decision, Austin points to the “belief” of Mr. Dean and a Mr. Allen, two Austin employees, that pre-splitting was no longer required. When those beliefs are combined with MSHA’s apparent failure to cite Austin for a violation for failure to pre-split, until the orders which are the subject of this proceeding were issued, Austin maintains that this demonstrates an absence of unwarrantable failure, as there was no “reckless disregard, intentional misconduct, indifference, or lack of reasonable care.” Id. at 14. A similar argument that there was no unwarrantable failure follows for Order 8237126. It is hard to see how the Court is to deal with challenges to unwarrantable failure findings in the context of dealing with a motion for summary judgment seeking to have the violations vacated.

            Reading Austin’s Motion, it became clear to the Court that Counsel had confused the requirements necessary to prevail in a motion for summary judgment and then proceeded to jumble into the mix claims which inferentially concede the violations while asserting they were not unwarrantable. Acknowledging, as Austin’s Motion does, conflicts in “testimony” are exactly the kind of problem that all summary judgment motions are to avoid. As Austin’s counsel admits in its Motion, “there must be no genuine issue as to any material fact.” Id. at 6. Further, Austin’s motion glides between deposition statements and other, unspecified “evidence in the record” when in fact there is no evidence in the record at this point. Statements made during a deposition are not alternative “testimony” and are useful only when offered to show uncontested facts.

            These contentions, as with Austin’s earlier arguments, are not appropriate for summary judgment. To be direct, through its own submission Austin has failed to establish that there are no genuine issues of dispute on these issues. Thus, as it concedes, there are facts in dispute.

            More importantly, as explained supra, Austin has, from the start to the finish of its Motion, completely failed to establish that summary judgment is appropriate. Given the insurmountable deficiencies in its Motion, there is no need for the Court to await a response from the Secretary of Labor as the Motion fails on its own terms. Accordingly, it is DENIED.

            The parties are directed to advise the Court not later than noon EST, Wednesday, November 16, 2011 as to whether these matters will still need to proceed to the hearing, as presently scheduled to commence on Monday, November 21^st in Pikeville, Kentucky. The parties are directed to so inform the Court at the Court’s email addresses, which addresses are known to them or they may arrange, also by email, for a conference call on November 16^th.

SO ORDERED.

                                                                                     /s/ William B. Moran                

                                                                                     William B. Moran

                                                                                    Administrative Law Judge

Distribution:

Mary Catherine Funk, Esq.

David J. Hardy, Esq.

Christopher D. Pence, Esq.

Guthrie & Thomas, PLLC

500 Lee Street, East, Suite 800

Charleston, WV 25301

Alisha I. Wyatt, Esq.

U.S. Department of Labor

Office of the Solicitor

211 7^th Avenue North

Suite 420

Nashville, TN 37219