FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

May 13, 2014

SECRETARY OF LABOR   MINE SAFETY AND HEALTH                        ADMINISTRATION (MSHA),    Petitioner           v. ALDEN RESOURCES, LLC,     Respondent

CIVIL PENALTY PROCEEDINGS              Docket No. KENT 2013-959              A.C. No. 15-17691-325489-01              Docket No. KENT 2013-960              A.C. No. 15-17691-325489-02              Docket No. KENT 2013-563              A.C. No. 15-17691-313350              Docket No. KENT 2013-118              A.C. No. 15-17691-331536              Mine: No. 3

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION

Before:            Judge McCarthy

            These cases are before me upon four Petitions for Assessment of Civil Penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). This matter is set for hearing in London, Kentucky on June 24, 2014.

            On April 28, 2014, Respondent filed a Motion for Summary Decision concerning Citation No. 8378384 in Docket No. KENT 2013-960.[1] Respondent alleges that on undisputed facts, the defective lifeline violation of 30 C.F.R. § 75.380(d)(7)(vii) cited in Citation No. 8378384 does not form the basis for an “inadequate pre-shift examinations” violation under 30 C.F.R. § 75.360(b)(1) because it does not involve the presence of methane, lack of oxygen and/or improper airflow, and does not involve hazardous conditions and/or violations relating to the nine mandatory health or safety standards in paragraph 75.360(b)(11). R. Mot., 2.

            On May 5, 2014, the Secretary filed a Response in Opposition. The Secretary alleges that the mine’s lifeline was missing several components for nine days, that the defective and deficient lifeline was a hazardous condition that exposed miners to fatal injuries, and that mine examiners did not recognize the hazardous conditions and were not performing adequate examinations as required by 30 C.F.R. § 75.360(b)(1). The Secretary argues that 30 C.F.R. § 75.360(b)(1) requires Respondent to look for hazardous conditions and not simply for the presence of methane, lack of oxygen and/or improper airflow (and/or the violations of the nine standards referenced in § 75.360(b)(11)), as Respondent contends. Sec’y Opp., 2-3.

            Commission Rule 67(b), 29 C.F.R. § 2700.67(b), provides that: “[a] motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, 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.” The Commission has long held that:

Summary decision is an extraordinary procedure. If used improperly it denies litigants their right to be heard. Under our rules, a party must move for summary decision and it may be entered only when there is no genuine issue as to any material fact and when the party in whose favor it is entered is entitled to it as a matter of law.

Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981) (footnote omitted). It “is authorized only ‘upon proper showings of the lack of a genuine, triable issue of material fact.’” Energy W. Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).

            Genuine issues of material fact and law exist, including the legal issue of whether the Secretary’s interpretation of 30 C.F.R. § 75.360(b)(1) is entitled to Auer deference. See Auer v. Robbins, 519 U.S. 452, 461 (1997). Accordingly, Respondent’s Motion for Summary Decision is DENIED.

/s/ Thomas P. McCarthy     

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution:

Ryan Pardue, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5710

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N. Eagle Creek Drive, Suite 310, Lexington, KY 40509

Peggy Langley, CLR, U.S. Dept. Of Labor, MSHA, 3837 S. U.S. Hwy 25E, Barbourville, KY 40906

Adron Wilson, CLR, U.S. Dept. Of Labor, MSHA, 3837 S. U.S. Hwy 25E, Barbourville, KY 40906      

Gary W. Oliver, CLR, U.S. Dept. Of Labor, MSHA, 3837 S. U.S. Hwy 25E, Barbourville, KY 40906    

Sam Brashears, Alden Resources, LLC, 332 W. Cumberland Gap Parkway, Ste. 100, Corbin, KY 40701

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^[1] Respondent mistakenly cited Citation No. 8378383 instead of the correct Citation Number 8378384.