**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

Office of the Chief Administrative Law Judge

1331 Pennsylvania Avenue, N.W., Suite 520N

Washington, D.C. 20004

 

 

|                                                                                                                                                                                                                                                                                                                                                                                          |                                                                                                                                                                               |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| SECRETARY OF  LABOR,

      MINE  SAFETY AND HEALTH

      ADMINISTRATION  (MSHA),

                                    Petitioner,

 

                        v.

 

HEIDELBERG  MATERIALS SOUTHWEST AGGREGATES, LLC,

                                    Respondent.                                                                                                        | :     CIVIL  PENALTY PROCEEDING

:

:     Docket No.  CENT 2023-0165-M

:     A.C. No.  41-00025-574949

:

:     

:

:     Mine: Bridgeport  Plant 

:

:                    |

 

**ORDER DENYING RESPONDENT’S MOTION FOR PARTIALSUMMARY DECISION******

**AND**

**DENYINGTHE SECRETARY’S CROSS-MOTION FOR SUMMARY DECISION**

 

This case isbefore me upon the Petition for the Assessment of Civil Penalty filed by theSecretary of Labor (“Secretary”) pursuant to section 105 of the Federal MineSafety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. TheSecretary alleges in Citation No. 9644299 thatHeidelbergMaterials Southwest Aggregates, LLC (“Heidelberg” or“Respondent”) violated 30 C.F.R. § 56.14105 by not blocking the hotwater and steam inside an 18-inch flex pipe that burned four miners trying tounclog the slurry line. On June 14, 2023, Chief Judge Glynn F. Voisin assigned me this case and attached a copy of my prehearing order, whichrequired the parties either to settle the matter or position it for hearing byAugust 23, 2023. The parties sought extensions of the deadlines, which Igranted. The parties timely filed their prehearing reports, and pursuant to myNovember 30, 2023, notice and order, I set this case for a hearing to be held onApril 9–10, 2024, in Dallas, Texas. 

 

OnDecember 8, 2023, Heidelberg filed Respondent’s Motion for Partial SummaryDecision. The motion argues that section 56.14105, 30 C.F.R. § 56.14105, doesnot apply to Citation No. 9644299, one of the two violations contained in thisdocket, and thus the citation should be vacated. In response, the Secretary onDecember 20, 2023, filed her Acting Secretary’s Response to Respondent’s Motionfor Summary Decision and Cross-Motion for Summary Decision, which requests thatI determine the cited standard is appropriate for the circumstances describedin Citation No. 9644299.[1] Heidelberg filed Respondent’sOpposition to the Secretary’s Cross-Motion for Summary Decision on January 2,2024.[2]

CommissionProcedural Rule 67(b) provides that 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) [t]hat there is no genuine issue as to any material fact; and(2) [t]hat the moving party is entitled to summary decision as a matter oflaw.” 29 C.F.R. § 2700.67(b). The Commission has consistently heldthat summary decision is an “extraordinary procedure” and analogizes it to Rule56 of the Federal Rules of Civil Procedure. *Lakeview Rock Prods., Inc.*,33 FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The SupremeCourt, as the Commission observes, has determined that summary judgment is onlyappropriate “upon proper showings of the lack of a genuine, triable issue ofmaterial fact.” *Id*. at 2987–88 (citing *Celotex Corp. v. Catrett*,477 U.S. 317, 327 (1986)). The Supreme Court has also held that both the recordand “inferences to be drawn from the underlying facts” are viewed in the lightmost favorable to the party opposing the motion. *Id*. at 2988 (quoting *UnitedStates v. Diebold, Inc.*,**369 U.S. 654, 655 (1962)).

 

In reviewing thesecross-motions for summary decision, I must determine whether there is no issueas to any material fact before determining which moving party is entitled tosummary decision as a matter of law. Counsel for the parties stated in aconference call with my law clerk their belief that the facts surrounding the allegedviolation were undisputed. The parties have submitted stipulations and attachedaffidavits, which I discuss at length below. 

 

**I.  STIPULATIONSAND FACTUAL STATEMENTS**

** **

**A.        Stipulations**

 

The following stipulations aretaken from the parties’ filings as follows:

1.    At all times relevant to these proceedings, Respondent was an“operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d). (Resp’tPrehr’g Statement at 2; Sec’y Prehr’g Statement at 1.) 

2.    With respect to these proceedings, Respondent is subject to the jurisdictionof the Mine Act, 30 U.S.C. § 801, et seq. (Resp’t Prehr’g Statement at 2; Sec’yPrehr’g Statement at 1.) 

3.    The Administrative Law Judge has jurisdiction over theseproceedings, pursuant to Section 105 of the Mine Act. (Resp’t Prehr’g Statementat 2; Sec’y Prehr’g Statement at 1.) 

4.    The individual whose signature or name appears in Block 22 of theCitation at issue in this proceeding is an authorized representative of theSecretary of Labor. The inspector was acting in an official capacity when heissued the Citation. (Resp’t Prehr’g Statement at 2–3; Sec’y Prehr’g Statementat 1.) 

5.    The Citation at issue in this proceeding was properly served uponRespondent, as required by the Mine Act. (Resp’t Prehr’g Statement at 3; Sec’yPrehr’g Statement at 2.)

6.    The Citation in this proceeding may be admitted into evidence forthe purpose of establishingits issuance but not necessarily for the truthfulness or relevancy of anystatements asserted therein. (Resp’t Prehr’g Statement at 3; Sec’y Prehr’gStatement at 2.) 

7.    Theproposed penalty will not affect Respondent’s ability to remain in business. (Resp’tPrehr’g Statement at 3; Sec’y Prehr’g Statement at 2.) 

8.    Respondentdemonstrated good faith in abating the alleged violation. (Resp’t Prehr’gStatement at 3; Sec’y Prehr’g Statement at 2.) 

 

**B.        Factual Statements**

 

The relevant, uncontested, and material facts taken from Respondent’smotion and the parties’ filings are as follows:

 

1.     On August 5, 2022,a slurry line at the Plant was clogged. (Mot., Ex. A at 1: Citation No.9644299; Resp’t Prehr’g Statement at 3; Sec’y Prehr’g Statement at 2.) 

2.     The slurry line isbetween the 10SU001 Tank and the 70SU001 Tank. (Mot., Ex. B at ¶ 2: Affidavit of Robert Branch.)

3.     A pump connectedto the slurry line has a rotating impeller that creates suction to move theslurry down the line. (Mot., Ex. B at ¶ 3: Affidavit of Robert Branch.) 

4.     The impeller isthe only mechanical moving part of the pump on the slurry line. (Mot., Ex. B at¶ 4: Affidavit of Robert Branch.) 

5.     When the pump isoff, the impeller does not move, and no material can pass through the pipe orpast the pump. (Mot., Ex. B at ¶ 5: Affidavit of Robert Branch.) 

6.     The pump is nearthe suction flex hose, but the impeller sits deeper into the connecting pipeand away from anyone working to remove the suction flex hose. (Mot., Ex. B at ¶6: Affidavit of Robert Branch; Mot., Ex. C at 1: Photograph of Slurry Line withSuction Flex Hose Removed and Next to Pump Connector.) 

7.     Four miners—threeHeidelberg employees and one contractor—attempted to clear the clog. (Mot., Ex.A at 1; Resp’t Prehr’g Statement at 3; Sec’y Prehr’g Statement at 2.) 

8.     In a firstattempt, the miners ran the pump connected to the slurry line, but this attemptwas not successful. (Mot., Ex. A at 1; Resp’tPrehr’g Statement at 3; Sec’y Prehr’g Statement at 2.) 

9.     In a secondattempt, the miners proceeded to remove a suction flex hose to access thematerial and clean it out. (Mot., Ex. A at 1; Mot., Ex. C at 1; Resp’t Prehr’gStatement at 3; Sec’y Prehr’g Statement at 2.) 

10.  The pump was offduring this second attempt. (Mot., Ex. A at 1; Mot., Ex. B at ¶ 8: Affidavit ofRobert Branch; Resp’t Prehr’g Statement at 3; Sec’y Prehr’g Statement at 2.) 

11.  When the minersremoved the suction flex hose, a sudden release of hot water and steam injuredthe miners. (Mot., Ex. A at 1; Resp’t Prehr’g Statement at 3; Sec’y Prehr’gStatement at 2.) 

12.  On October 11,2022, the Secretary issued Citation No. 9644299 alleging that Heidelbergviolated the safety standard at 30 C.F.R. § 56.14105 “by not blocking the hotwater or steam from the slurry line.” (Mot., Ex. A at 1.) 

 

**C.        CitationNo. 9644299 Allegations**

 

MSHA InspectorJames D. Redwine, who issued Citation No. 9644299 on October 11, 2022,designated the alleged violation as highly likely to result in fatal injury tofour miners. (Mot. at Ex. A.) He made the following allegations in the “Conditionor Practice” section of Citation No. 9644299:

 

A serious accident occurred at this mine involving 3miners and 1 contractor, while attempting to unplug a slurry line the minershad ran the slurry pump for several minutes trying flush out the slurry lineout. With no success in unplugging the line, they decided to break the lineloose by the 18-inch flex pipe after removing the 30 bolts that holds the linetogether. They then connected a come-a-long to pull the flex pipe out, in thisprocess maintenance of machinery or equipment shall be performed only after thepower is off, and the machinery or equipment blocked against hazardous motion.This condition exposed miners to serious injuries by not blocking the hot wateror steam from the slurry line.

Standard 56.14105 was cited 1 time in two years atmine 4100025 (1 to the operator, 0 to a contractor.)

 

(Mot., Ex. 1.)

 

**D.        Affidavitof Heidelberg’s Robert Branch**

 

I, Robert Branch, based on my personal knowledge andbelief, do hereby declare and state as follows:

 

1.     My name is RobertBranch, and I am a leadman at the plant. I have been in the mining industrysince 1986. I have worked with the type of slurry pump at the Bridgeport Plantfor over two decades, and I am familiar with how the system operates.

2.     There is a slurryline between the 10SU001 Tank to the 70SU001 Tank.

3.     A pump connectedto the slurry line has a rotating impeller that creates suction to move theslurry down the line.

4.     The impeller isthe only mechanical moving part on the slurry line.

5.     When the pump isoff, the impeller does not move, and no material can pass through the pipe orpast the pump.

6.     The pump is nearthe suction flex hose the crew removed on August 5, 2022, but the impeller sitsdeeper into the connecting pipe and away from anyone working to remove thesuction flex hose.

7.     On August 5, 2022,I was periodically with the four-man crew attempting to clear the clogged line.

8.     I saw the four-mancrew while they were in the processes of removing the suction flex hose. Atthat time, the pump was off.

9.     I was not with thefour-man crew when they removed the suction flex hose. 

 

(Mot., Ex. B.)

 

**E.        Declarationof MSHA’s James D. Redwine**

 

I, James D.Redwine, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746 thatthe following is true and correct:

 

1.     I am an employeeof the Mine Safety and Health Administration (“MSHA”), United States Departmentof Labor, where I serve as a Mine Safety and Health Specialist. I am fullyfamiliar with the facts and circumstances of the above-captioned case.

2.     The informationcontained in this Declaration was obtained from my personal knowledge and frommy inspection of the Bridgeport Plant on August 5, 2022.

3.     I have been aninspector for 11 years.

4.     Prior to workingfor MSHA, I worked at Texas Industries in Bridgeport, Texas for 28 years.

5.     In total, I have39 years of experience in the mining industry.

6.     It is not uncommonfor slurry lines, like the one in this incident, to become clogged and requiremaintenance or repair, including breaking the line loose to remove the cloggedmaterial.

7.     I have performedthis task at least 20 – 30 times during my career.

8.     The pump is anessential and integral part of the slurry line. The slurry line cannot functionwithout the pump.

9.     The pipe,including the flex hose used in this instance, is also an essential andintegral part of the slurry line. The pump serves no purpose without beingconnected to the pipeline.

10.  When the pump wasrun repeatedly to clear the clogged material, the limited volume of waterinside the part of the line had nowhere to go. As a result, the pump heatedthat water to boiling, and caused pressure and steam to build up in the pipe.

11.  The pressure andsteam was sealed inside the line, and it was all released suddenly when thecome-along pulled the piece of flex hose off the line.

 

(Sec’yCross-Mot., Ex. 1.)

 

**II. ARGUMENTS AND ISSUES**

 

In Respondent’smotion for partial summary decision and in its opposition to the Secretary’scross-motion for partial summary decision, Heidelberg argues that there is nogenuine issue as to any material fact and that it did not violate section56.14105 as a matter of law. (Mot. at 7; Resp’t Opp’n at 1.) Heidelberg arguesthat the language of the standard is unambiguous, and therefore the Secretary’sinterpretation should not be entitled to deference. (Mot. at 7; Resp’t Opp’n at1.) Heidelberg also argues that the Secretary, in her cross-motion, omittedanalysis of whether her interpretation is reasonable and instead skipped towhether the notice provided by the regulations satisfies due process. (Resp’tOpp’n at 5–7.) 

 

The Secretaryfiled a combined Response to Heidelberg’s Motion for Summary Decision andCross-Motion for Summary Decision. The Secretary argues that (1) Heidelberg wasperforming maintenance and repair on the slurry line; (2) the cited standarddoes not require that the machinery or equipment be powered; (3) even if thestandard required the machinery or equipment to be powered, the standardapplies because the pump is powered machinery, and it is connected and integralto the function of the slurry line; (4) the release of hot water and/or steamis hazardous motion; and (5) the term “blocking” means to prevent or obstructmovement or progress. (Sec’y Cross-Mot. at 8–15.)

 

The issues theparties have put before me are: (1) whether section 56.14105 applies to thefacts presented by the parties in Citation No. 9644299; (2) whether thelanguage of the standard, on its face, isambiguous; and (3) whether either party is entitled to a ruling on theapplication of section 56.14105 as a matter of law.

 

For the reasonsdiscussed below, I **DENY** both parties’ requests for summary decision.

 

**III. DISCUSSION AND ANALYSIS**

 

Heidelberg attacksthe Secretary’s reading of the standard on multiple fronts. First, Heidelbergargues that the equipment or machinery cited in Citation No. 9644299 is notcovered by section 56.14105 because this standard applies only to “powered”equipment or machinery. (Mot. at 7–13; Resp’t Opp’n at 6–7.) In that vein,Heidelberg asks me to view the slurry line (i.e., the 18-inch pipe connectingtwo silos that use a pump to manage the flow of slurry) as an individual pieceof equipment, which Heidelberg argues is not powered in any way. (Mot. at 14.) Second,Heidelberg argues that “hazardous motion,” as that term is used in thestandard, can only be concerned with the actual movement of the equipment ormachinery – not with the movement of any substance or material within theequipment or machinery. (Mot. at 12; Resp’t Opp’n at 7.) Lastly, Heidelbergtakes issue with the terms “maintenance” and “repair” as they are used in thestandard, arguing that its miners were not involved in such activities asenvisioned under the standard. (Resp’t Opp’n at 4; Mot. at 13–14.) 

 

In response toHeidelberg’s arguments on powered machinery or equipment, the Secretary arguesthat Heidelberg’s motion “asks this court to dissect the specific pieces ofequipment and the process in such a way that the standard does not apply[, andthat s]uch a disjointed view undermines the purpose of the standard, which isto protect miners from the release of hazardous energy or motion duringmaintenance or repairs.” (Sec’y Cross-Mot. at 15.) 

Thus, whether the pipein Citation No. 9644299 is covered under this standard may hinge on whether thepipe is part of an integrated, powered pumping system.  

 

However, after areview of the record before me, I determine that neither party is entitled tosummary decision because the parties disagree on a material factualdetermination—that is, whether the slurry pipe is an integral part of an overallslurry line system containing the pump. That factual determination is materialto determining whether Heidelberg’s plain reading of section 56.14105 entitlesit to summary decision. Likewise, that same factual determination affects theanalysis of the interpretation of the other language contained in section56.14105. 

 

Here, the partiessubmit a competing affidavit and declaration in support of arguments which areat odds factually. Heidelberg argues the pipe is an individual piece ofequipment that is not powered and points to the affidavit of Robert Branch tomake its claim.(Mot., Ex. B.) On the other hand, the Secretary argues the pipe is part of anintegrated slurry line system that includes the pump, essentially negatingHeidelberg’s reading of the standard, and points to the declaration of MSHAInspector James Redwine to make its claim. (Sec’y Cross-Mot., Ex. 1.)

 

The parties wantme to cast the die for one side based on a declaration or affidavit thatinherently conflicts on a material fact, which comes without the benefit of witnesstestimony that is subject to cross-examination. I decline their invitation whena fact material to the outcome is in dispute.  

** **

Furthermore, theparties argue over the terms “hazardous motion,” as well as the definitions of“maintenance” and “repair.” (Resp’t Opp’n at 4; Mot. at 8, 12–14; Sec’yCross-Mot. at 10–13.) Similarly, resolving the material fact of whether thepipe is part of a system may affect the analysis of these legal questions.   

 

Consequently, despitethe parties stating that no facts were in dispute, I determine that the partiesdo not agree on a material fact in this case, as they submitted competingaffidavits on the factual determination of whether the pipe in question may beconsidered part of an integrated system of machinery or equipment. I am boundby Commission Rule 69 to grant summary decision only when “the entirerecord, including the pleadings, depositions, answers to interrogatories,admissions, and affidavits, shows: (1) [t]hat there is no genuine issue as toany material fact.”29 C.F.R § 2700.69. I conclude that there is an issue of material fact and thusneither party can prevail as a matter of law.

 

**IV. ORDER**

** **

****Respondent Heidelberg MaterialsSouthwest Aggregates’Motion for Partial Summary Decision is hereby **DENIED**, and the ActingSecretary of Labor’s Cross-Motion for Summary Decision is **DENIED**. Theissues involving Citation No. 9644299, as well as the other citation containedin this docket, will be addressed in a decision issued after the scheduledhearing on April 9–10, 2024, in Dallas, Texas.

 

 

 

 /s/ Alan G. Paez

                                                                              AlanG. Paez

                                                                              AdministrativeLaw Judge

 

 

Distribution: (Via Electronic Mail Only)

 

Lacee Caitlyn Eakins, Esq., U.S. Department of Labor, Office ofthe Regional Solicitor, 

525 S. Griffin Street, Suite 501, Dallas, TX 75202-5092

(eakins.lacee.c@dol.gov)

(docket.dallas@dol.gov)

 

Margaret Lopez,Esq. & Zachary Byers, Esq., Ogletree, Deakins, Nash, Smoak & Stewart,P.C., 1909 K Street N.W., Suite 1000 Washington, DC 20006-1134 

(margaret.lopez@ogletree.com)

(zachary.byers@ogletree.com)

 

/gw

----

[1] I consider theSecretary’s cross-motion to be for partial summary decision to address the issueof whether the noted standard applies to the facts alleged. Respondent stillcontests the gravity and negligence determinations, thus requiring a hearing onthose issues. 

 

[2] In this decision Iuse the following abbreviations: Respondent’s Motion for Partial SummaryDecision (“Mot.”); Acting Secretary’s Response to Respondent’s Motion forSummary Decision and Cross-Motion for Summary Decision (“Sec’y Cross-Mot.”);Respondent’s Opposition to Secretary’s Motion for Summary Decision (“Resp’t Opp’n”).