**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

Officeof Administrative Law Judges

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

Washington,D.C. 20004

 

| IMI AGGREGATES, LLC,

                                    Contestant,

 

                        v.

 

SECRETARY OF LABOR,

      MINE SAFETY AND HEALTH

      ADMINISTRATION (MSHA),

                                    Respondent,                                                                                                        | :     CONTEST PROCEEDING

:

:     Docket No. LAKE 2023-0249-RM

:     Citation No. 9547190; 07/18/2023

:

:

:     Cambridge City Pit

:     Mine ID 12-01034

:

                     |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

**ORDER DENYINGMOTION FOR EXPEDITED CONSIDERATION**

 

This docket is before me upon the Notice of Contest filed by IMI Aggregates, LLC (“Contestant” or “the operator”) undersection 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),30 U.S.C. § 815(d). The Secretary timely filed her answer. Contestanthas filed a Motion for Expedited Consideration, requesting an expedited hearingon this matter.

 

**I.  BACKGROUND**

 

On July 18, 2023, MSHA Inspector KeithDuncan issued Citation No. 9547190 at the CambridgeCity Pit mine under section 104(a) of the Mine Act alleging that “[t]heoperator failed to provide nonconductive material at the E-stop button for the#1 conveyor,” thus exposing miners to possible “fatal electrical shock injury”in violation of section 56.12020, 30 C.F.R. § 56.12020. (Mot., Ex. 1.) Inspector Duncandesignated the citation as potentially fatal to one miner (though unlikely tosignificantly and substantially contribute to the cause and effect of a minesafety or health hazard) and as the result of low negligence on the part of theoperator. (Mot., Ex. 1.) Contestant filed its notice of contest on August 7,2023, denying any violation occurred and requesting the citation be vacated. (*See*Mot. at 2.)

 

The following day on August 8, 2023,Contestant filed its Motion for ExpeditedConsideration. On August 11, 2023, counsel for the Secretary filed theResponse of Secretary of Labor in Opposition to Contestant’s Motion to Expedite.Thereafter, Chief Judge Glynn Voisin assigned me this docket on August 17,2023.

 

**II.  MOTION FOREXPEDITED HEARING AND RESPONSE**

 

In Contestant’sMotion for Expedited Consideration, the operator requests an expedited hearingof its contest of Citation No. 9547190. (Mot. at 1.) Contestant asserts that inaddition to the citation at issue in this case, MSHA “is threatening to writesimilar citations at its 21 other mines,” and, therefore, the operator “is beingasked to correct this alleged hazard at its 22 locations or risk receiving highgravity/negligence 104(d) citations/orders.” (Mot. at 2.) Contestant includes adeclaration from Safety Manager Brad Wales and claims “this unnecessaryabatement would entail roughly $40,000 in repairs, and each facility would bedown 1 to 2 days if no issues arise with the repairs.” (Mot. at 2; Mot., Ex. 2at 2.) The operator’s mines would supposedly need to be shut down for at leastone day, resulting in approximately $1,540,000.00 in lost production while 300miner employees would lose work. (Mot. at 2; Mot., Ex. 2 at 2.) The operatorasserts that “[t]his alleged hazardous condition has existed for over 5 yearsand over 10 MSHA inspections.” (Mot. at 2; Mot., Ex. 2 at 1.) Contestant alsoasserts that “Inspector Duncan stated that he agreed with [the operator’s]position that there was no violation, but he had been told that he must writethe citation.” (Mot. at 2.) Contestant thus “seeks immediate review of thisissue” through an expedited hearing and decision. (Mot. at 2.)

 

In response, the Secretary notesthat the crux of Contestant’s argument is theoretical—that MSHA may findsimilar conditions at other mines, that MSHA may issue violations of section 104(d),and that Contestant may have to do additional wiring to terminate anytheoretical citations even though rewiring was unnecessary to abate the currentcitation. (Resp. at 2.) The Secretary points out that production was notstopped when the citation was issued or terminated, and that within fiveminutes of its issuance the operator abated the citation by placing a woodenpallet at the location with no further action to terminate the violation beingordered or taken. (Resp. at 2.) Thus, per the Secretary, “one of thetraditional reasons for seeking an expedited hearing (i.e., to resolve a legalissue that has caused the cessation or curtailment of [mine] production) is notat issue in this matter.” (Resp. at 2.) The Secretary emphasizes that Contestantis not being asked to correct this alleged hazard at its other mines to abatethis citation, because “[n]o further abatement is required.” (Resp. at 2–3.)

 

**III.  PRINCIPLESOF LAW**

 

            CommissionProcedural Rule 52, 29 C.F.R. § 2700.52, sets forth the procedures for requesting andscheduling expedited proceedings, but it does not address the criteria underwhich such requests are to be evaluated. However,this rule contemplates circumstances exigent enough to permit scheduling ahearing on as little as five days of notice. 29 C.F.R. § 2700.52(b). Under Commission case law, Commission Judges are taskedwith using “informed discretion” and considering all the facts when determiningwhether an expedited hearing is appropriate.  *Wyo. Fuel Co.*, 14 FMSHRC1282, 1287 (Aug. 1992). In *Wyoming Fuel*, the Commission held thatthe Mine Act does not mandate immediate hearings in all circumstances, nor doesit require that a party’s motion to expedite proceedings be granted on theterms sought. *Wyo. Fuel Co.*, 14 FMSHRC at 1287. Rather, a hearing by aCommission Judge must only be held “within a period of time reasonable underthe circumstances of each case.” *Id.*

 

            CommissionJudges have generally held that an expedited hearing iswarranted upon a showing of “extraordinary or uniquecircumstances resulting in continuing harm or hardship.” *Southwestern Portland Cement Co.*, 16 FMSHRC 2187,2187 (Oct. 1994) (ALJ). Commission Judges have determined, however, thatthe mere threat of mine closure is not an extraordinary or unique circumstancewarranting an expedited hearing. *See, e.g.*,*Wis. Indus. Sand Co.*, 36 FMSHRC 2789, 2789–90 (Oct.2014) (ALJ) (denying motion for expedited hearing where only a section 104(a)citation, and no section 104(d) withdrawal order or section 104(b) order, wasat issue); *Consolidation Coal Co.*, 16 FMSHRC 495, 495–96 (Feb. 1994)(ALJ) (noting contestant’s request for an expedited hearing was speculativewhere no closure order was in effect and the alleged citations and withdrawalorder were promptly abated); *Energy West Mine Co.*, 15 FMSHRC 2223,2223–24 (Oct. 1993) (ALJ) (denying expedited hearing because the operatorcontesting the section 104(d)(1) order was “not in a unique position,” as everyoperator receiving such an order is under a continuing threat of closure and facesthe possibility of a subsequent withdrawal order).

 

**IV.  ANALYSIS**

 

First, Contestant’s primaryargument for its need to hold an expedited hearing is the parade of horribles,including financial hardship and work disruption, that will occur if itsrequest is not granted. (Mot. at 2–3; Mot., Ex.2 at 2.) Contestant argues that an expedited hearing is appropriate becausecorrecting similar violations at its other mines will be expensive and/orunnecessary. (Mot. at 4.) Indeed, Contestant asserts that MSHA “isthreatening to write similar citations at its 21 other mines,” and, therefore, Contestant“is being asked to correct this alleged hazard at its 22 locations . . . .” (Mot.at 2.) 

 

Although Contestantworries about the *threat* of section 104(d) orders at its other mines,such worries are speculative when considering all the facts before me. Here, the evidence establishes that Contestant abated, and MSHAInspector Duncan terminated, the citation within seven minutes after its issuancewithout shutting down the mine by placing a dry wooden pallet at thelocation for miners to stand on when operating theE-stop switch. (Mot., Ex. 1.) Indeed, these facts run counter to theassertions made by Brad Wales. In Wales’s declaration nothing indicates Contestantis being compelled to fix the grounding issue under any section 104(d)citations or orders. (Mot., Ex.2 at 2.) And Contestantprovides no evidence why its other mines would need to be shut down to performthe same work that only took seven minutes to abate. As the Secretary points out, nothing—other thanthe operator’s unsubstantiated assertion that a shutdown would berequired—suggests that Contestant would need to stop production for 1–2 days. (Resp.at 2.) As the Secretary correctly points out regardingCitation No. 9547190 which is the only alleged violation before me, “[n]ofurther abatement is required.” (Resp. at 2–3.) 

 

            Here,the section 104(a) citation before me has already been abated and the minecontinues production, so the mere possibility of a section 104(d) withdrawalorder being issued to Contestant at the Cambridge Clay Pit mine or any of its other21 mines is not an extraordinary or uniquecircumstance resulting in continuing harm or hardship. *See**Wis. Indus.Sand Co.*, 36 FMSHRC at 2790; *Southwestern Portland Cement Co.*, 16FMSHRC at 2187; *see also**Mountain Cement Co.*, 23 FMSHRC694, 694 (June 2001) (ALJ) (ruling that “[t]hepossibility that an operator could be subject to future withdrawal orders undersection 104(d) is neither extraordinary nor unique under the Mine Act.”). Strippeddown to its essence, this matter simply involves arun-of-the-mill section 104(a) citation, which does not warrant theextraordinary remedy of an expedited hearing.

 

            Second, Contestant argues that an expedited hearing isproper because of a possibility that MSHA abused its discretion. Specifically, Contestantasserts that “Inspector Duncan stated that he agreed with our position thatthere was no violation, but he had been told that he must write the citation”;thus, Contestant believes the inspector abused his discretion. (Mot. at 2; Mot.Ex.2 at 2.) In support, Contestant cites to *Mountain Cement* arguing that“the court granted the operator’s request for an expedited hearing afterfinding, as it should in this case, that there was ‘a very real possibilitythat the MSHA inspector abused his discretion or seriously misapplied the law .. . .’ and that the operator would experience substantial economic hardship ifrequired to comply with the citations.” *Mountain Cement Co.*, 23 FMSHRC694–95 (June 2001) (ALJ). 

 

            The allegedstatement by Inspector Duncan, if true, is troubling but these circumstancesare substantially different from the facts in *Mountain Cement*. In *Mountain Cement*the Commission Judge was concerned thatMSHA abused its discretion because 20 violations were issued as section 104(d)(2)orders, yet most were subsequently modified to section 104(a) citations during asubsequent conference. *Mountain Cement Co.*, 23 FMSHRC at 695. Unlike the20 withdrawal orders in *Mountain Cement*, I have before me a single section104(a) citation. More importantly, despite MSHA Inspector Duncan’s allegedstatement, the operator does not contradict the underlying factual allegationsthat led to the issuance of Citation No. 9547190,as the Secretary points out. (Resp. at 3.) The operator’s disagreement withMSHA citing it for an alleged electrical grounding violation does not rise tothe level of extraordinary or unique circumstances resulting in continuing harmor hardship. 

 

Lastly, Contestant argues this citation should be vacatedboth because the Secretary is estopped from citing this condition because shedid not cite it in the prior five years, and because the condition did not violatethe regulations. (Mot. at 2.) Contestant’s estoppel argument isunpersuasive given recent Mine Act case law. *See Cactus Canyon Quarries, Inc.v. Fed. Mine Safety and Health Rev. Comm’n*, 64 F.4th 662, 666 (5th Cir.2023). Likewise, Contestant’s argument that it didnot violate section 56.12020 is unpersuasive because, as the Secretary points out, Contestant fails to provideevidence to support this. (Resp. at 3.) In any event, neither of thesearguments are relevant to the issue of an expedited hearing, as they do notrise to the level of unique or extraordinary circumstances.

 

Forthe above reasons and upon considering all thefacts in exercising my informed discretion, I determine that Contestant allegesno extraordinary or unique circumstances resulting in continuing harm orhardship. Therefore, I conclude an expedited hearing is not warranted.

 

**V.  ORDER**

** **

In light of the foregoing, Contestant’sMotion for Expedited Consideration is**DENIED**. The parties will alert myLaw Clerk when both the penalty petition and answer have been filed, so I canconsolidate this contest case with the penalty case for hearing and decision.

 

 

 

/s/ Alan G. Paez

                                                                              AlanG. Paez

                                                                              AdministrativeLaw Judge

 

 

 

 

Distribution: (Via Electronic Mail Only)

 

Donna Vetrano Pryor, Esq., HuschBlackwell LLP, 1801 Wewatta Street, 

Suite 1000, Denver, CO 80202-6321

(Donna.Pryor@huschblackwell.com)

 

Suzanne F. Dunne, Esq., U.S. Department of Labor, Office ofthe Solicitor, 

230 South Dearborn Street, 8th Floor, Chicago, IL 60604-1505

(dunne.suzanne@dol.gov)