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[DOCID: f:kt200188o.wais]
EXCEL MINING LLC
July 11, 2001
KENT 2001-88
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041
July 11, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2001-88
Petitioner : A. C. No. 15-14324-03511
v. :
: Preparation Plant
EXCEL MINING LLC, :
Respondent :
ORDER DENYING MOTION
FOR PARTIAL SUMMARY DECISION
This case is before me on a Petition for Assessment of
Penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 815(d). The Respondent has
filed a motion seeking summary decision on two of the three
citations at issue in the case. The Secretary opposes the
motion. For the reasons set forth below, the motion is denied.
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 (November 1981)
(footnote omitted). It "is authorized only `upon proper
showings of the lack of a genuine, triable issue of material
fact.'" Energy West Mining Co., 16 FMSHRC 1414, 1419 (July
1994) [quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986)]. Here, the company has failed to show that there is
no genuine issue as to any material fact.
Excel asserts that summary decision should be granted
for Citation Nos. 7367802 and 7367805. Citation No. 7367802
alleges a violation of section 77.210 of the Secretary's
regulations, 30 C.F.R. � 77.210, because:
Taglines or other devices were not used
to guide a suspended load that required
guidance during a material hoisting
operation. While reaching out to guide a
suspended chemical barrel from the open
hoistway [sic] onto the third floor of the
preparation plant, an employee fell
approximately 55 feet to the ground,
sustaining fatal injuries.
Section 77.210 provides, in pertinent part, that: "(c) Taglines
shall be attached to hoisted materials that require steadying
or guidance."
Citation No. 7367805 alleges a violation of section
77.1713(a), 30 C.F.R. � 77.1713(a), in that:
Inadequate daily inspections were
conducted on the third floor of the
preparation plant. The metal supports and
other structural members of the railing
surrounding the open material hoistway [sic]
had corroded to the point that the railing
was ineffective. Although daily on-shift
inspections were conducted, the condition was
not reported or corrected.
Section 77.1713(a) requires that:
At least once during each working shift,
or more often if necessary for safety, each
active working area and each active working
surface installation shall be examined by a
certified person designated by the operator
to conduct such examinations for hazardous
conditions and any hazardous conditions noted
during such examinations shall be reported to
the operator and shall be corrected by the
operator.
With respect to Citation No. 7367802, the company argues
that no violation can be proved because the regulation only
requires taglines "when hoisted materials require guidance or
steadying and . . . there is no evidence that the load in
question required guidance or steadying." (Motion at 8.) On the
other hand, the Secretary asserts that the facts available to
her, as attested to in the declaration of Robert Bates,
"establish that a tagline was necessary to steady or guide the
barrel in question so that the employee would not put himself in
a position of peril as happened in this accident." (Response at
4.) I find from the evidence apparently available to the
Secretary that there clearly is a material question of fact as
to whether a tagline was necessary in this case.
Turning to Citation No. 7367802, Excel agrees that "if an
examination is required, it must be accomplished in a manner
that would reveal hazards that would be discernable to a
reasonably prudent miner who is looking out for the safety of
his fellow works and himself." (Motion at 11-12.) However, it
maintains that "it was not reasonable to expect an on-shift
examiner to see the corrosion that MSHA concluded was the cause
of the accident." (Motion at 12.) I find that whether it was
reasonable to expect the on-shift examiner to see the corrosion
and whether the examination was carried out in a reasonably
prudent manner are material questions of fact which must be
decided in this case.
Accordingly, the Motion for Partial Summary Decision is
DENIED. Counsel for the Secretary shall initiate a telephone
conference call with the Respondent's counsel and the judge, at
any time convenient to the parties, but not later than July 19,
2001, for the purpose of setting a hearing date.
T. Todd Hodgdon
Administrative Law Judge
(703) 756-6213
Distribution: (Certified Mail)
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215
Timothy M. Biddle, Esq., Crowell & Moring, LLP, 1001
Pennsylvania Avenue, N.W., Washington, DC 20004-2595
/nt