FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

December 29, 2011

ORDER DENYING CONTESTANT’S MOTION TO DISMISS

AND MOTION FOR SUMMARY DECISION

             This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (“the Act”). Pattison Sand Company, LLC (“Pattison”) is contesting Citation No. 8660155 issued by an inspector for the Department of Labor’s Mine Safety and Health Administration (MSHA) for a violation of the standard at 30 C.F.R. § 57.3200. That standard provides as follows:

Ground conditions that create a hazard to persons shall be taken down or supported before other work or travel is permitted in the affected area. Until corrective work is completed, the area shall be posted with a warning against entry and, when left unattended, a barrier shall be installed to impede unauthorized entry.

            The citation was issued on October 20, 2011 and the case was thereafter scheduled for expedited hearings to commence on November 8, 2011. The citation was terminated however on October 25, 2011 after the alleged violative conditions were abated. Since expedited hearings were no longer necessary, the hearings were cancelled.

            Contestant thereafter filed the motion to dismiss and motion for summary decision now before me. Under Commission Rule 67(b) “[a] motion for summary decision shall be granted only if the entire record including the pleadings, depositions, answers to interrogatories, admissions and affidavits, shows: (1) That there is no genuine issue as to any material fact; and (2) That the moving party is entitled to summary decision as a matter of law.”

            In connection with its motion for summary decision Contestant set forth the following alleged undisputed facts:

            1. On October 20, 2011, Inspector Anthony D. Runyon, a designated representative of MSHA, issued the Citation to Pattison Sand for an alleged violation at the Pattison Sand Company Mine. Exhibit A (omitted).

            2. The Citation was issued under Section 104(a) of the Mine Act. It alleges moderate negligence, an S&S violation of 30 C.F.R. § 57.3200, a reasonable likelihood of injury or illness, and a reasonable expectation of lost of workdays or restricted duty. Id

            3.         The Citation alleges:

Ground conditions that create a hazard to miner were not taken down or supported before work and travel active was allowed to presume between isle 4AI and 4AF. Multiple cracks and loose material is visible in this area. The south side of 4AF shows visible signs of separation and loose material. The crack then travels from 4AF to 4AG north side showing in some area approximately 4 inch deep cracks into the back continuing on to south side of 4AG to a brow where multiple cracks exist ranging from 4 to 12 inch into the back and approximately 6 inch wide, the crack continues to the south side of 4AH with a single crack to north side of 3AI where multiple crack exit from the single crack to the south side of 3AI. The total length of the crack is approximately 242 feet long.

Spalling or commonly known as pinch out as also occurred on the north half of pillar 4AI where the rib and back meet for approximately 25 feet. The pinch out measured approximately 6 feet down from the back and 3 feet into the pillar giving it a V shape at the top of the pillar.

This area was mechanical scale 7 days ago and has been hand scaled since then giving an impression that not only scaling will be enough to control this material from cracking an falling.

A daily inspection from a high lift has not been conducted as required by ground control plan.

This mine has strong history of back and rib falls causing injuries to miners.

                                    Id

            4.                     The Citation set the termination due date as October 28, 2011. Id     

            5.                     In reference to the termination due date, Inspector Runyon wrote the following on the Citation: 

The termination due date has been extended to allow the Mine Operator time to correct the cited condition on the basis that only miners correcting the condition are allowed in the cited area.

            6.                     Inspector Runyon modified the Citation on October 20, 2011 correcting typographical errors and deleting entirely the allegations in the second and third paragraphs of the Citation narrative. Id.

            7.                     Inspector Runyon terminated the Citation on October 20, 2011. Id

            While these facts (except for the date the citation was terminated) indeed appear to be undisputed, Contestant, in its arguments, then intermingles other alleged material facts which are clearly in dispute, including its assertion that the subject citation was actually a withdrawal order closing down the entire mine. The Secretary has submitted an affidavit and documentation to dispute the latter allegations. Underlying both motions is Contestant’s argument that the provisions of the citation limiting access to the cited hazardous area to “only miners correcting the condition” closed the entire mine and, as such, is not permitted under section 104(a) of the Act.

            Since both motions are premised on the same disputed factual allegations both motions must be denied and the disputed issues reserved for full evidentiary hearings.

                                                                        Order

            Contestant’s motion to dismiss and motion for summary decision are denied.

                                                                        /s/ Gary Melick

                                                                        Gary Melick

                                                                        Administrative Law Judge

                                                                        202-434-9977

Distribution: (Certified Mail)

Jamison P. Milford, Esq., Office of the Regional Solicitor, U.S. Department of Labor, Two Pershing Square Bldg., 2300 Main Street, Suite 1020, Kansas City, MO 64108

David Farber, Esq., Henry Chajet, Esq., and Brian Hendrix, Esq., Patton Boggs, LLP, 2550 M. Street, NW, Washington, DC 20037

/to