Secretary of Labor v. Heidelberg Materials Northeast, LLC

Plain-English summary

Heidelberg's annual ventilation map showed airflow for two mine openings but omitted the direction and quantity for two other openings carrying large ambient airflows. The judge rejected Heidelberg's argument that only mechanically generated flows in primary or secondary entries were principal air flows. Reading the rule in context, she held that all significant flows needed for MSHA to understand and evaluate the mine's ventilation system must be shown. She affirmed the non-S&S citation, sustained moderate negligence, and assessed the proposed $147 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.8520(b)(1)
• Outcome: The citation was affirmed and a $147 penalty was assessed.
• Key point: A ventilation map must show significant ambient airflows, not only mechanically generated flows in primary and secondary entries.

Full text (FMSHRC public release)

FEDERA L MIN E SAFET Y AN D HEALT H REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE,
NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

SECRETAR Y O F LABOR                                   :                 CIVIL
PENALTY PROCEEDING

MIN E SAFET Y AN D
HEALTH                      :    

ADMINISTRATIO N
(MSHA),                         :                 Docket No. PENN 2024-0057

Petitioner,                                     :                 A.C.
No. 36-08484-596662

:

:

v.                                                   :    

:

:          

HEIDELBERG MATERIALS                             :                  Mine:
Torrance Mine

NORTHEAST, LLC,                                          :

Respondent  
                                  :                

SUMMARY DECISION

Before:                        Judge
Bulluck

This case is
before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration (“MSHA”), against Heidelberg
Materials Northeast, LLC ("Heidelberg"), pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977 ("Mine Act"), 30 U.S.C. § 815(d). The Secretary
seeks a civil penalty in the amount of
$147.00 for an alleged
violation of one of her mandatory safety standards requiring that ventilation
plans contain a current mine map showing the direction and quantity of
principal air flows. See 30 C.F.R. § 57.8520.

On September 17, 2024, the Secretary filed a Motion
for Summary Decision and Memorandum of Points and Authorities in Support of the
Acting Secretary’s Motion for Summary Decision (“Secretary’s Motion”), with
attached Exhibits A through F. [1]
Heidelberg filed a Motion for Summary Decision (“Heidelberg’s Motion”), with
attached Exhibits 1 through 5, on September 23. [2]

Based on a
thorough review of the cross-motions, I find that there is no genuine issue of
material fact. For the reasons set forth below, I conclude that the Secretary
is entitled to summary decision as a matter of law, affirm the Citation, and
assess a penalty against Heidelberg.

I.               
Legal
Standard for Summary Decision

Pursuant to Commission Rule 67(b), “[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.

It is well settled that summary decision is an extraordinary
measure and the Commission has analogized it to Rule 56 of the
Federal Rules of Civil
Procedure, which the Supreme Court
has construed to authorize summary judgment only “upon proper showings of the lack of a genuine, triable issue of material fact.” Hanson Aggs. New York, Inc.,
29 FMSHRC 4, 9 (Jan.
2007) (citations omitted). When considering a motion for summary decision, the Commission has noted that “the Supreme Court has stated that ‘we look
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.’” Id. at 9 (quoting Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Moreover, Commission Judges should not grant
motions for summary decision “unless
the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse
party cannot prevail under any circumstances.”
KenAmerican Res., Inc., 38 FMSHRC 1943, 1947 (Aug. 2016) (quoting Campbell
v. Hewitt, Coleman & Assocs.,
Inc., 21 F.3d 52, 55 (4th Cir. 1994)); see Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that there is no genuine issue for trial unless a
rational trier of fact could find for the nonmoving party).

II.            
Factual
Background

Heidelberg
submitted its mine map to MSHA, as required by section 57.8520, on January 30,
2024. Sec’y Mot., Stip. 6. The mine map identifies four entries from the mine
to the surface: Main (primary escapeway), M-3 (secondary escapeway), M-13, and
M-15. Sec’y Mot., Stip. 7. While Heidelberg’s map shows the direction and
quantity of air flow in the Main and M-3 entries, it does not depict the air
flows in the M-13 and M-15 entries. Sec’y Mot., Stip. 9. Consequently, on
February 27, 2024, MSHA Inspector Justin Griffith issued a 104(a) citation to
Heidelberg alleging a violation of section 57.8520(b)(1). Sec’y Mot., Stip. 12.

III.          
Statement
of Undisputed Facts

The parties have stipulated to the
following:

1.         
At all relevant
times to this matter, Heidelberg Materials was owner and operator of Torrance
Mine, and is an operator, as defined in Section 3(d) of the Federal Mine Safety
and Health Act, 30 U.S.C. § 802(d).

2.         
Torrance Mine is
a “mine,” as defined in Section 3(h) of the Mine Act, 30 U.S.C.  § 802(h).

3.         
This proceeding
is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission.

4.         
Citation No.
9855704 was issued and served by an authorized representative of the Secretary
of Labor, as required by the Mine Act.

5.         
A true copy of
Citation No. 9855704 was delivered to Respondent, and is attached as Exhibit A.

6.         
Respondent
submitted the annual mine map required by 30 C.F.R. § 57.8520 on or about
January 30, 2024.

7.         
The aforementioned mine map
indicates that there are four openings from the mine to the surface: Main, M-3,
M-13, and M-15. Main serves as the primary entry and escapeway and contains
intake mechanical fan F-5. M-3 serves as the secondary entry and escapeway and
contains air outlet F-8.

8.         
Exhibit B is a map labelled with
the aforementioned mine openings.

9.         
No airflow was shown on the M-13
and M-15 ambient air openings.

10.       
The M-13 opening had 498,600 cubic
feet per minute of air passing through it on or about February 27, 2024, and
had similar airflow on or about January 30, 2024. Portal airflow was measured
in only one direction.

11.       
The M-15 opening had 560,160 cubic
feet per minute of air passing through it on or about February 27, 2024, and
had similar airflow on or about January 30, 2024. Portal airflow was measured
in only one direction.

12.       
MSHA issued Citation No. 9855704
for a violation of 30 C.F.R. § 57.8520(b)(1) on February 27, 2024.

13.       
MSHA proposed a penalty of $147
for the aforementioned violation.

14.       
Respondent timely challenged this
penalty.

15.       
The proposed penalty is
appropriate if a violation is found.

16.       
The proposed penalty will not
affect Respondent’s ability to remain in business.

17.       
Exhibit A to the Petition,
attached here as Exhibit C, accurately states the size of the mine and of the
controlling entity.

18.       
Exhibit D, a certified copy of the
mine’s citation history, is accurate.

Sec’y Mot.
at 2-3.

IV.          
Findings of Fact and
Conclusions of Law

Inspector Griffith
issued 104(a) Citation No. 9855704, alleging a violation of 30 C.F.R. § . 57.8520(b)(1) that had “no likelihood” to cause an
injury that could reasonably be expected to result in “no lost workdays,” was “non-significant
and substantial,” and was due to Heidelberg’s “moderate” negligence. Sec’y Mot.,
Ex. A. The “Condition or Practice” is described as follows:

Annual ventilation plan/mine map submitted
to MSHA for review did not accurately show all required information. The
direction and quantity for principal air flows for the M15 and M13 mine
openings were not depicted on the Mine Map submitted to MSHA dated 1/30/2024. MSHA
air reading taken at location M15 mine opening was measured to have 560,160
CFM. MSHA air reading taken at location M13 mine opening was measured to have 498,600
CFM. The operator failed to accurately depict the principal air flows entering
the mine.

Sec’y Mot., Ex. A.

A.    
Fact of Violation

The question
presented in this matter is whether, under section 57.5820(b)(1), the ambient
air flows in entries M-13 and M-15 are “principal,” requiring annotation of their
direction and quantity on the mine map submitted with Heidelberg’s ventilation
plan. Heidelberg contends that the air flows in M-13 and M-15 are not “principal”
because that term refers only to a single, primary air flow, and M-13 and M-15 have
ambient air flows that it cannot control. Resp. Mot. at 1. On the other hand, the
Secretary takes the position that, based on the overall comprehensiveness of
section 57.8520’s requirements and plural usage of “principal air flows” in subsection
(b)(1), all significant airflows in entries must be shown on the mine map. Sec’y
Mot. at 5. Additionally, the Secretary contends that the air flows in the M-13
and M-15 entries are significant enough to require annotation because their
quantities are comparable to those in the primary and secondary entries. Sec’y Mot.
at 6.

Section 57.8520,
in pertinent part, prescribes that:

A plan of the mine ventilation
system shall be set out by the operator in written form. Revisions of the
system shall be noted and updated at least annually. The ventilation plan or
revisions thereto shall be submitted to the District Manager for review and
comments upon his written request. The plan shall, where applicable, contain
the following:

(b) The current
mine map or schematic or series of mine maps or schematics of an appropriate
scale, not greater than five hundred feet to the inch, showing:

(1)  
Direction and quantity of
principal air flows.

30 C.F.R. § 57.8520(b)(1).

No reasonable
reading of this standard would construe the meaning of “principal air flows” as
being limited only to the primary and/or secondary escapeways. The word
“principal” is defined as “most important, consequential, or influential.”
Merriam-Webster.com Dictionary , https://www.merriam-webster.com/dictionary/principal,
last visited 15 Oct. 2024. Common usage of the term often applies to a set of
things that are the most important or consequential. The standard’s usage of
“air flows” in the plural sense indicates that multiple consequential air flows
can be considered principal. Moreover, when read in the context of section
57.8520 as a whole, the standard makes clear that a mine map is meant to incorporate,
comprehensively, the essential elements of a ventilation plan necessary for
MSHA to understand and assess how ventilation is achieved in a mine. In
addition to the direction and quantity of principal air flows, a mine map must
also show the locations of seals isolating abandoned workings; areas withdrawn
from the ventilation system; all main, booster, and auxiliary fans; air
regulators, stoppings, and ventilation doors; airway crossover devices; known
oil and gas wells; known underground adjacent mine openings; permanent
underground shops, diesel and oil fuel storage depots, etc.; and significant
changes in the ventilation system projected for one year. See 30 C.F.R. §§ 57.8520(b)(1)-(10).
The degree of detail to which mine maps require annotation under the broader standard
demonstrates that it is meant to be inclusive of all consequential factors
affecting ventilation, which, by necessity, would include all significant air
flows in openings to the surface, whether mechanical or ambient, as the
standard makes no distinction.

Without a
detailed and complete schematic of Heidelberg’s ventilation plan, including annotated
air flows in all four entries, the mine map would be of limited utility to MSHA,
which relies on the accuracy of the maps submitted by the operators to assess the
effectiveness of their mine ventilation. See Original Sixteen to One Mine,
Inc. , 38 FMSHRC 1019, 1039 (May 2016) (ALJ). Additionally, both MSHA and mine
operators must know the direction and quantity of consequential air flows in
case of mine emergencies, which might require safe evacuation or rescue of
miners. Consequently, it would be unreasonable to construe the standard to
pertain only to the consequential mechanically generated airflows coursing
through the primary and secondary escapeways, to the exclusion of the other entries
ventilated by consequential ambient air flows, as Heidelberg argues.

Annotating the direction and quantity of
air flows in the M-13 and M-15 entries is essential to a full assessment of Heidelberg’s
overall ventilation plan. The air flow readings taken in M-13 and M-15 show
significant air intakes of 498,600 and 560,160 cfm, respectively. Sec’y Mot.,
Stips. 10, 11. These airflows are significantly greater than the 245,025 cfm of
the mechanically generated airflow in the Main entry, and comparable to the 647,606
cfm of mechanically generated air flow in the M-3 entry, as annotated on Heidelberg’s
mine map. Sec’y Mot. at 1. Furthermore, their importance to the ventilation
plan is in no way diminished by the fact that these significant air flows are
ambient, rather than mechanical, especially in light of the standard’s myriad requirements.

Accordingly,
I find that the air flows in the M-13 and M-15 entries are included within the
set of “principal air flows,” and that Heidelberg violated section 57.8520(b)(1)
by failing to annotate their direction and quantity on its January 2024 mine
map.

B.    
Gravity and Negligence

The Secretary has
assessed the gravity of the violation as “no likelihood,” “no lost workdays,”
and “non-significant and substantial.” Sec’y Mot., Ex. A . Furthermore, the Secretary has determined that this
violation constituted a documentation error, and that there was no evidence
that omission of the M-13 and M-15 entry airflows presented any immediate or
potential safety hazard under the mine’s conditions. Sec’y Mot. at 6-7. Because
I agree with the Secretary’s assessment, that this paperwork violation posed no
immediate or potential hazard, I sustain her gravity designations.

The Secretary has assessed the
negligence of the violation as “moderate.” Sec’y Mot., Ex. A. However, Heidelberg
contends that MSHA’s failure to cite the same map deficiencies in previous
years created a reasonable belief that annotating the airflows in the M-13 and
M-15 entries was not required. Resp. Mot. at 1-2. The Secretary’s Part 100
Penalty Table defines “moderate negligence" as “the operator knew or
should have known of the violative condition or practice, but there are
mitigating circumstances.” 30 C.F.R. § 100.3(d). While Heidelberg’s reliance on
MSHA’s previous lack of enforcement is mitigating, I find that its failure to
comply with the clear meaning of the standard constitutes ordinary negligence. Therefore,
I sustain the Secretary’s moderate negligence designation.

V.             
Penalty

While the
Secretary has proposed a regularly assessed civil penalty of $147. 00, the Judge must independently
determine the appropriate assessment by proper consideration
of the six penalty criteria
set forth in section 110(i) of the
Mine Act, 30 U.S.C. § 820(i). See
Sellersburg Stone Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff'd
736 F.2d 1147 (7th Cir. 1984).

Applying
the penalty criteria, I find that Heidelberg is a large operator, with no prior
violations of section 57.8520(b)(1) in the 15 months prior to this violation,
and that it had an overall violation history that is a mitigating factor in
assessing an appropriate penalty. Sec’y Mot., Stips. 17, 18; Ex. D. I also find
that the proposed penalty will not affect Heidelberg’s ability to continue in
business, and that Heidelberg demonstrated good faith in achieving rapid
compliance after notice of the violation. Sec’y Mot., Stip 16. The remaining
criteria involve consideration of the gravity and negligence of the violation. I
have found that this paperwork violation had no likelihood to result in a lost-workdays
injury, and that Heidelberg’s negligence was moderate. Accordingly, I find that
a penalty of $147.00, as proposed by the Secretary, is appropriate.

VI.          
Order

ACCORDINGLY , the Secretary's Motion for Summary Decision is GRANTED , Respondent’s Motion
for Summary Decision is DENIED , and it is ORDERED that

Heidelberg Materials
Northeast, LLC PAY a civil penalty of
$147.00 within 30 days of the date
of this Decision. [3]

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Matthew Epstein,
Esq.; David Casserly, Esq., U.S. Department of Labor, Office of the Regional
Solicitor, 835 Market Street, Mailstop SOL/22, Philadelphia, PA 19103

[email protected] ; [email protected]

James White, Heidelberg
Materials, 2200 Springfield Pike, Connellsville, PA 15425

[email protected]

/db

[1] Exhibit F, a copy
of Citation No. 9521813, was filed separately on October 1, 2024.

[2] Heidelberg’s September
23, 2024 filing lacks a title; the file name of the pdf document filed in FMSHRC’s
eCMS is “Motion for Summary Decision.”

[3] Payment should be
made electronically at Pay.Gov, a service of the U.S. Department of the
Treasury, at  https://www.pay.gov/public/form/start/67564508 . Alternatively,
send payment (check or money order) to: U.S. Department of Treasury, Mine
Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please
include Docket and A.C. Numbers.