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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

March 19, 2024

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.

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 Heidelberg filed Respondent’s Opposition to 

the Secretary’s Cross-Motion for Summary Decision on January 2, 2024.2

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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. 
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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.)

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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”).
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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 

attempt was 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.)
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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-along 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.
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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. 
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(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. 
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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 CrossMot. 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.

 

Alan G. Paez

Administrative Law Judge
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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