Three of the four sanders on the Co# 52 Brookville mantrip (s/n 9072) were not maintained and fully operational. This mantrip is capable of transporting 12 miners.

Mot. Ex. 2.

            Citation No. 8518472 was issued at 5:45 p.m., on September 22, 2010, pursuant to section 104(a) of the Act. It also alleges a violation of 30 C.F.R. § 75.1403-6(b)(3), and charges Respondent with failing to comply with Safeguard No. 2811430. The violation was described in the “Condition and Practice” section of the citation as follows:

Each self-propelled personnel carrier should be equipped with properly installed and well-maintained sanding devices, except that personnel carriers (jitneys) which transport not more than 5 men, need not be equipped with such sanding device. Upon inspection of the c/n 57 (s/n 08403) Brookville diesel mantrip, the sanding devices (2) located on the south side of the manbus track location, did not function properly when tested. This mantrip is utilized to transport up to nine miners throughout the mine.

Mot. Ex. 3.

            Oak Grove argues that the citations remaining at issue must be vacated because the subject safeguard fails to specifically identify the hazard it is intended to address and is, therefore, invalid. Oak Grove’s challenge is to the facial validity of the safeguard. There are no material facts in dispute as to the content of the safeguard or the allegations of the citations. Consequently, this facet of Oak Grove’s defense to the citations is appropriate for resolution by summary decision.

The Validity of the Safeguard

            In Cyprus Cumberland Res. Corp., 19 FMSHRC 1781, 1784-85 (Nov. 1997), the Commission reiterated the law applicable to a determination of the validity of a safeguard.

Under section 314(b) of the Mine Act, the Secretary may issue “[o]ther safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards with respect to transportation of men and materials.” 30 U.S.C. § 874(b). In order to issue such a safeguard, an inspector, must determine that there exists an actual transportation hazard not covered by a mandatory standard and that a safeguard is necessary to correct the hazardous condition. Southern Ohio Coal Co., 14 FMSHRC 1, 8 (January 1992). (SOCCO II). He must also specify the corrective measures an operator must take. The Commission reviews the Secretary’s issuance of a safeguard under an abuse of discretion standard.

            The inspector’s decision to issue a safeguard must be based upon “his evaluation of the specific conditions at a particular mine and on his determination that such conditions create a transportation hazard in need of correction.” SOCCO II, 14 FMSHRC at 11-12. A safeguard “must identify with specificity the nature of the hazard at which it is directed and the conduct required of the operator to remedy such hazard.” Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) (SOCCO I). It is the Secretary’s burden to prove the validity of a safeguard. SOCCO II, 14 FMSHRC at 14-15. While the language of a safeguard, which may be issued without consulting with representatives of the operator, must be narrowly construed, the Secretary’s authority to issue a safeguard is interpreted broadly. Cyprus Cumberland,

19 FMSHRC at 1785; SOCCO I, 7 FMSHRC at 12.

            Oak Grove argues that the safeguard “does not identify any hazard with specificity” and, therefore, fails to satisfy the SOCCO I requirement. Mot. at 2. It further asserts that the specificity requirement “demands that the hazard and the underlying condition be enumerated independent of one another.” Mot. at 3. Oak Grove closes its argument by asserting that the safeguard is invalid because it does not “address a hazard associated with this condition [personnel carrier not equipped with a well maintained fully operational sanding device] or indicate that the cited condition would lead to an event that would create danger to miners.” Mot. at 4.

            The Secretary contends that the SOCCO I requirements are satisfied because the safeguard specifies the nature of the hazard at which it is directed; i.e., a personnel carrier operating without a well maintained sanding device. Opp. at 2. As to Respondent’s assertion that the safeguard fails to indicate that the condition or hazard would lead to an event that would create danger to miners, she argues that there is no such requirement.

            In that Oak Grove’s argument is directed to the validity of the safeguard, it is a challenge to the exercise of the Secretary’s broad discretion in issuing safeguards. Here, as the Secretary asserts, the subject safeguard identifies the nature of the hazard to which it is directed, i.e., a personnel carrier without a well maintained sanding device. Track-mounted personnel carriers transporting six or more men that are not equipped with a properly functioning sanding device to increase the friction between the carrier’s wheels and the track may not have sufficient braking power to avoid derailments, collisions, or a host of similar events that could result in serious injuries to miners. Neither that obvious fact, nor the various potential scenarios in which operation of such a carrier might put miners in danger, need be spelled out in the safeguard itself. The statement of the nature of the hazard set forth in safeguard no. 2811430 is sufficient to defeat Oak Grove’s attack on its facial validity under the abuse of discretion test.

            Oak Grove’s arguments are based on an overly technical reading of SOCCO I, which, if applied as Oak Grove and other operators raising similar arguments would have it, would no doubt invalidate a substantial percentage of safeguards that have been issued in the 40-plus years that the standard has been enforced. As noted above, the Secretary’s authority to issue a safeguard is interpreted broadly. Only in interpreting the requirements of a safeguard is the strict construction standard applicable.

            As the Commission has repeatedly emphasized, the fact that safeguards are issued by individual inspectors without consulting with representatives of the operator dictates that additional protections from arbitrary enforcement must be afforded to mine operators. See Wolf Run Mining Co. v. FMSHRC, 659 F.3d 1197, 1202 (D.C.Cir. 2011) citing SOCCO I and SOCCO II. The Secretary must establish the validity of the safeguard by proving that it is based upon conditions at the mine that present a transportation hazard to which the safeguard is directed. If found valid, safeguards are interpreted based upon “a narrow construction of the terms of the safeguard and its intended reach.” (SOCCO I), 7 FMSHRC at 512. The rejection of Oak Grove’s “statement of hazard” argument deprives it of none of the protections to which operators are entitled.

            Oak Grove relies only on its technical hazard argument in challenging the validity of the safeguard. It does not claim that the alleged failure to independently specify the nature of the hazard renders the requirements of the safeguard ambiguous. Nor could it, because the safeguard’s requirement, which the mine has operated under for more than 25 years, is quite clear - all track-mounted personnel carriers [that transport six or more men] shall be provided with a well-maintained fully operational sanding device.

ORDER

            I find that safeguard no. 2811430 adequately specifies the nature of the hazard it is intended to address, and that issuance of the safeguard was appropriate under the Secretary’s broad discretion. Accordingly, Respondent’s Motion for Summary Decision is DENIED.

/s/ Michael E. Zielinski

Michael E. Zielinski

Senior Administrative Law Judge

Distribution:

Jennifer Booth Thomas, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340,

401 Liberty Avenue, Pittsburgh, PA 15222