FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th St., Suite 443
Denver, CO 80202-2536
(303) 844-5267/Fax: (303) 844-5268
November 30, 2012
|
UNITED STEEL WORKERS, |
: : : : : : : : : : |
COMPENSATION PROCEEDING
Mine: Lucky Friday |
ORDER DENYING HECLA’S MOTION FOR PARTIAL
SUMMARY DECISION
This compensation proceeding is before me pursuant to section 111 of the Federal Mine Safety and Health Act of 1977, 30 U.S. C. § 821 (the “Mine Act” or “Act”), upon a complaint for compensation filed by the United Steel Workers, Local 5114 (“USW”), against Hecla Limited (“Hecla”). In its complaint, USW relies upon the fourth sentence of section 111 which provides that “[w]henever an operator violates or fails or refuses to comply with any order issued under section 103, section 104, or section 107 of this Act, all miners employed at the affected mine who would have been withdrawn from, or prevented from entering, such mine or area thereof as a result of such order shall be entitled to full compensation by the operator at their regular rates of pay . . . for the period beginning when such order was issued and ending when such order is complied with, vacated, or terminated.” 30 U.S.C. § 821. USW contends that Hecla violated this provision of section 111 because Hecla failed to comply with a section 103(k) order and that order has not been vacated or terminated by MSHA. Hecla opposes the complaint for compensation and also filed a motion for partial summary decision on the basis that the section 103(k) order at issue was terminated as a matter of law when MSHA issued a subsequent section 103(k) order. USW opposes the motion for partial summary decision.
I. BACKGROUND
On November 16, 2011, a rock burst occurred
at Hecla’s Lucky Friday Mine. Hecla
reported the fall to MSHA. The same day,
MSHA Inspector Scott Amos issued Order No. 8605614 pursuant to section 103(j)
of the Act. The order, as originally
issued, withdrew miners from specific underground areas of the mine. A large number of miners were idled as a
result. MSHA modified the order to a
103(k) order and allowed essential personnel entry into certain portions of the
withdrawn area to, among other things, assess damage, conduct surveys, and begin
repairing the affected areas. Under this
order, Hecla was required to establish survey points in the affected area of
the mine and to monitor these points for pressure changes twice a day. The purpose of the monitoring was to detect
movement or pressure building in the area being repaired so that miners
performing repair work could be removed from the area if movement or a change
in pressure were detected.
On December 14, 2011, another rock burst
occurred in the area being repaired, injuring seven miners. USW alleges that, upon investigation, it was
determined that the required survey was not conducted and pressure readings
were not taken in the period immediately prior to the rock burst. On December 21, 2011, MSHA issued Citation
No. 8565565 under section
104(a) of the Mine Act for violating the terms of the section 103(k)
order. The citation alleges that Hecla
allowed work to be performed in the affected area and that, on December 14,
2011, it “failed to take the last reading just prior to another violent rock
burst that resulted in serious injuries to seven miners.” Because the required survey was not
conducted, MSHA determined that Hecla allowed work to be undertaken “in the
face” of the 103(k) order.
MSHA also issued Order No. 8605622 under
section 103(j) on December 14, 2011.
This order covered the entire mine.
The order was subsequently modified to a section 103(k) order and was subsequently modified several other
times to allow certain repair work to be performed.
USW alleges that its miners at the Lucky
Friday Mine have been idled as a result of the issuance of Order No. 8605614
and that Hecla worked in the face of that order. Accordingly, USW has requested compensation
for affected employees from November 16, 2011, the date of issuance of Order
No. 8605614, until such time as Order No. 8605614 is terminated, vacated, or
complied with. Order Nos. 8605614 and
8605622 have not yet been terminated by MSHA.
II. PARTIES’
ARGUMENTS
Hecla argues that it is entitled to
partial summary decision as a matter of law.
Specifically, Hecla asserts that Order No. 8605614 was terminated as a
matter of law when MSHA issued Order No. 8605622. (Hecla Mot. 1). Beginning on December 14, 2011, Order No.
8605622 “prohibit[ed] all activity in all underground areas of the mine[.]” Id. at 2. As a result of the prohibitions set forth in
Order No. 8605622, “it became impossible for Hecla to comply with the
requirements of Order No. 8605614.” Id. at 3. Accordingly, “Order No. 8605614 was
effectively terminated by the issuance of Order No. 8605622.” Id.
Hecla, via affidavits of its own
personnel, avers that subsequent discussions with MSHA confirmed that “MSHA
considered Order No 8605614 to be ‘superseded’ and ‘terminated’ by the issuance
of Order No. 8605622.” Id. at 4. While Hecla has requested that MSHA formally
terminate Order No. 8605614, MSHA has not done so. Id. Hecla argues that MSHA’s “refusal to
terminate Order No. 8605614 is incorrect as a matter of law” given that “the
issuance of Order No. 8605622 has made compliance with Order No. 8605614
impossible.” Id. “The defense of
impossibility has been found to be consistent with ‘principles that are
implicit in the . . . Act.’ ” Id. (citing Sewell Coal Co. v. FMSHRC, 686 F. 2d 1066, 1070 (4th Cir.
1982)). Moreover, the defense has been
“recognized [by another Commission ALJ] in relation to the issuance of an order
under § 103(k)[.]” Id. (citing Jim Walters
Resources, 25 FMSHRC 435 (July 2003)(ALJ)).
Finally, Hecla argues that the
“continued effectiveness of Order No. 8605622 meets the full intent and
purposes of § 103(k),” i.e., “to ensure the safety of any person in a mine[,]”
and to protect against all the hazards that Order No. 8605614 covered. Id.
at 4-5.
USW argues that material facts remain in
dispute and that partial summary decision on the issue of termination of Order
No. 8605614 is not appropriate. (USW
Opp. 2). USW contends that Order No.
8605614 has not been terminated and remains in effect. Id.
at 3-4. The “underlying facts relating
to [Hecla’s] assertion of ‘effective termination’ are in dispute[.]” Specifically, USW has no knowledge regarding
the alleged discussions between MSHA and mine management. Id.
at 4. Further, there is no submission or
statement from MSHA in the motion to verify what may have been discussed
between MSHA and mine management. Id.
USW asserts that additional material
facts were not addressed in Hecla’s motion.
Id. at 5.
USW states that the statutory
compensation period extends from the time MSHA issued Order No. 8605614 until
such time that the order is “complied with, vacated, or terminated.” Id.
at 7. In light of the fact that none of
these “ending events” has occurred, the court should not curtail the
compensation period “without the aid of a hearing on all of the facts and
circumstances surrounding the citations and orders at issue.” Id.
at 6-8.
USW next argues that nothing in the
plain language of the Act, or Commission case law, supports Hecla’s argument
that Order No. 8605614 was “effectively terminated” when Order No. 8605622
allegedly made compliance with the earlier order “impossible.” Id.
at 8. “[T]he impossibility defense . . .
is applied on a case-by-case basis.” Id. (citing Sewall Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir.
1982)). “Given the broad remedial nature
of the fourth sentence of section 111, application of the impossibility defense
is not available in the instant case.” Id. at 10. Unlike the first three sentences of section
111, the fourth sentence of section 111, which gives miners the right to
compensation when the mine operator violates a 103(k) order, “allows for an
expansive compensation period[.]” Id. at 9. The subject section “ensures that miners are
not economically penalized due to the operator’s reckless disregard of the Mine
Act when the operator is found to be ‘working in the face of an outstanding
order.’ ” Id.
USW argues that, even if the
impossibility defense can be raised, it is an affirmative defense, and Hecla
has not met its burden of establishing the defense for purposes of summary
decision. Id. at 10. The two
affidavits that Hecla relies upon to demonstrate MSHA’s purported agreement
with Hecla’s position are based on hearsay.
Id. MSHA has not corroborated these affidavits
and the court should not infer that MSHA has accepted Hecla’s impossibility
defense. Id. Moreover, the affidavit
of miner’s representative Rick Valerio indicates that MSHA had not terminated
Order No. 8605614 and that Order No. 8605622 did not operate to “effectively
terminate” or supersede Order No. 8605614.
Id. at 11. Procedurally it makes more sense for the
court to first consider the legitimacy of the underlying citations and orders
that were issued following the rock bursts.
Id. at 2. The issue presented in Hecla’s motion “should
not be resolved until MSHA presents evidence addressing whether 103(k) Order
No. 8605614 was ‘effectively terminated’ on December 14, 2011, by the issuance
of a second 103(k) Order . . . due to impossibility of compliance.” Id.
at 11.
III.
DISCUSSION
Commission Procedural Rule 67 sets forth
the grounds for granting summary decision as follows:
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.
29
C.F.R. § 2700.67(b). The Commission has long recognized that “summary decision is
an extraordinary procedure.”’ Energy West Mining Co., 16 FMSHRC 1414,
1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov.
1981). The Commission has also
analogized Commission Procedural Rule 67 to Federal Rule of Civil Procedure
56. Hanson
Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007); See Also Energy West Mining Co., 16 FMSHRC at 1419 (citing Celotex Corp v. Cartrett, 477 U.S.
317,237 (1986)).[1]
When the Commission reviews a
summary decision under Comm. P. R. 67, it looks “ ‘at the record on summary
judgment in the light most favorable to . . . the party opposing the motion,’
and that ‘the inferences to be drawn from the underlying facts contained in
[the] materials [supporting the motion] must be viewed in the light most
favorable to the party opposing the motion.’ ”
Hanson Aggregates New York Inc.,
29 FMSHRC at 9 (quoting Poller v. Columbia Broadcasting Sys., Inc., 368
U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)).
I
find that Hecla is not entitled to partial summary decision under Comm.
P. R. 67 because there are genuine issues concerning
the facts in this case. The record is
simply not complete enough for me to grant Hecla’s motion for partial summary
decision. I
have broken Hecla’s arguments down into three sections: Hecla’s impossibility defense, effective
termination, and duplication.
Concerning Hecla’s impossibility
defense, one of the cases that Hecla depends upon as justification for its defense,
Jim Walter Resources, resulted in the
judge’s denial of the operator’s motion for summary decision. Jim
Walter Resources, 25 FMSHRC 435, 443 (July 2003) (ALJ
Barbour). The judge acknowledged that “for me to make these determinations, the record must be
complete.” Id. at 443. Although factually distinct from the present
case, the impossibility defense in Jim
Walter Resources required numerous underlying factual determinations, just
as the present case does. This
fact-intensive quality common to the impossibility defense is the very reason
that “case-by-case adjudication” is the appropriate approach for dealing with the
impossibility defense. Sewell Coal Co., 686 F.2d 1066, 1070
(4th Cir. 1984). Unless the necessary
facts are fully stipulated to, assessing the merits of an impossibility defense
upon summary decision is difficult.
If
the only reason that Hecla could not comply with Order No. 8605614 was because
MSHA ordered it not to do so through the issuance of Order No. 8695622, then
MSHA’s position on this issue is certainly a material fact.[2] The parties acknowledge the importance of
this material fact by focusing their efforts on proving MSHA’s position on this
issue through their affidavits, but these affidavits simply offer conflicting
accounts of discussions with MSHA officials.
Construed most favorably to the non-moving party, the fact that MSHA did
not terminate Order No. 8605614 and the existence of contradictory affidavits
make it possible that Order No. 8605614 was not terminated and was not impossible
to comply with. At the very least,
there is an issue of material fact. In
short, the record does not contain the factual foundation necessary to analyze
the legal questions raised by Hecla with regard to their impossibility defense.
Hecla also argues that the issuance of Order No. 8695622
“effectively terminated” Order No. 8605614.
USW, however, disputes this assertion, as well as Hecla’s main
supporting claim that MSHA officials told Hecla that Order No. 8695622
effectively terminated Order No. 8605614.
The parties present conflicting affidavits concerning the issue of
effective termination, all of which rely solely on hearsay to show that MSHA
officials agree with their respective positions. Neither party, however, presents any direct
evidence concerning the topic of effective termination. In a summary decision, I cannot rule upon an
issue when the only information before me is conflicting second-hand interpretations
of material fact.
Hecla’s argument that continued
compliance with Order No. 8695622 renders the requirements of Order No, 8605614
moot also fails. Relying on Western Fuels, Hecla essentially argues
that Order Nos. 8695622 and 8605614 are duplicative. Western
Fuels, however, does not relate to the termination of an order by a
subsequent order, but rather deals with duplicative, over-lapping safety
standards. Western Fuels-Utah, Inc., 19 FMSHRC at 1004. Considering
the record before me, I cannot grant Hecla’s Motion for Partial Summary Decision
based upon the argument that Order No. 8695622 renders the requirements of
Order No. 8605614 moot or that the two orders are duplicative.
As far as I can determine, this is a
case of first impression seeking an interpretation of the fourth sentence of
section 111 of the Mine Act under these circumstances. Based upon the facts before me, I cannot rule
that Order No. 8605614 was terminated as a matter of law on December 14, 2011,
at the time that Order No. 8695622 was issued.
In reaching this conclusion, I am not denying Hecla’s position on the
merits; I am merely holding that Hecla is not entitled to summary decision on
the issues raised because too many genuine issues of fact have not been
resolved.
IV. ORDER
Accordingly, Hecla’s Partial
Motion for Summary Decision is DENIED
on the basis that there are genuine issues of material fact.
/s/
Richard W. Manning
Richard
W. Manning
Administrative
Law Judge
Distribution
Susan
J. Eckert, Santarella & Eckert, LLC, 7050 Puma Trail, Littleton, CO 80125 (susaneckert.sellc@comcast.net;
First Class Mail)
Karen
L Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150,
Denver, CO 80202-1958 (KJohnston@jacksonkelly.com;
First Class Mail)
Matthew Vadnal, Esq., Office of
the Solicitor, U.S. Department of Labor, 300 Fifth Avenue, Suite 1120, Seattle,
WA 98104-6761 (Vadnal.Matthew@DOL.GOV;
First Class Mail)
RWM
[1] Federal Rule of
Civil Procedure 56(c)(A) states, in pertinent part, that a motion for summary
judgment should be granted if
“citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials” show that there
is no issue of material fact and the movant is entitled to summary decision as a matter of
law. Fed. R. Civ. P. 5(c)(A).
[2] Order Nos. 8605614
and 8695622 are currently before me in contest cases brought by Hecla, WEST
2012-353-RM and WEST 2012-354-RM.
Citation No. 8565565 is before me in WEST 2012-355-RM. The Secretary and Hecla are currently
conducting discovery in these cases. The
Secretary has not yet proposed a penalty for Citation No. 8565565, but she
should be doing so in the near future.