BACKGROUND

On April 12, 2011, Resolution Copper filed a petition under 30 C.F.R. Part 44 for modification of 30 C.F.R. § 57.19076[1], arguing that its conveyance used for lowering miners into the shaft was not a bucket and therefore could permissibly travel faster than 500 feet per minute (“fpm”). (Ex. P-5). Resolution also asserted that, if its personnel conveyance is deemed to be a bucket, the company’s safety procedures were as safe for miners as the requirements of the standard. Resolution wished to increase the speed of the man conveyance to 1200 fpm, but only where the shaft was unobstructed and the conveyance was distant from any attachments on the shaft walls. (Ex. P-5 at 1). A consulting firm determined that the 1200 fpm speed proposed by Resolution was safe for miners during both travel and deceleration. (Ex. P-6, 7, 11).

MSHA denied Resolution’s petition for modification in a proposed decision and order dated November 4, 2011. (Ex. P-14). Resolution appealed the denial to the Office of Administrative Law Judges of the Department of Labor, as set forth in 30 C.F.R. §§ 44.14 & 44.15. The case was assigned to Administrative Law Judge Richard M. Clark. In the case before Judge Clark, both parties agreed that the judge needed to resolve two issues: (1) whether the conveyance in question was a bucket as that term is used in section 57.19076 and, if so, (2) whether the petition for modification should be granted because Resolution Copper’s method was as safe as the safety standard. Both parties agreed that Judge Clark had jurisdiction to determine whether the safety standard applied to the conveyance.

Judge Clark held an evidentiary hearing on May 23 and 24, 2012. On November 7, 2012, in a 22-page decision, Judge Clark determined that the conveyance was not a bucket. (Ex. J-1)[2]. As a consequence, he held that the 500 fpm speed limit does not apply to the conveyance and he did not reach the second issue. (Ex. J-1 at 22). MSHA appealed Judge Clark’s decision to the Assistant Secretary for Mine Safety and Health, as set forth in 30 C.F.R. § 44.33.

On November 28, 2012, MSHA, for the first time, issued a citation to Resolution for its failure to comply with section 57.19076 in the No. 10 shaft. Citation No. 8596049 states that the shaft hoist logs indicated that the operator had been hoisting persons in the shaft at speeds up to 1200 fpm, which exceeds the maximum allowable speed of 500 fpm when hoisting persons in a bucket. Resolution, without objection, sought an expedited proceeding before me based upon the record developed by Judge Clark in the Department of Labor administrative hearing. Both parties agreed upon this procedure to avoid having to try the same issues a second time. I also agreed to this procedure so long as I determined that it was not necessary for me to observe the demeanor of witnesses to resolve any factual issues. After reviewing the transcript and exhibits developed before Judge Clark, I find that I can resolve the issues raised in these cases without observing the witnesses in open court. The record developed before Judge Clark was comprehensive.

SUMMARY OF TESTIMONY

Thomas Goodell, the general manager of underground development for Resolution, testified that the cited piece of machinery and personnel conveyance is a type of elevator, not a bucket. Four wind ropes hold the Galloway[3] and two of those ropes guide the conveyance down the shaft, preventing it from moving laterally. (Tr. 44; Ex P-2 at :18). The personnel conveyance is not a modified muck bucket, concrete bucket, or any other type of bucket and it is a different size. (Tr. 110-11). It was designed from scratch by a group of experts from Resolution, outside consultants, and Cementation Canada[4] for the express purpose of transporting people in a safer manner than would be available in a bucket. (Tr. 110). A personnel conveyance cannot perform most of the tasks required of a muck bucket including hauling muck and bailing water because the walls are too thin, the hatch at the top is too narrow, it cannot tip upside down, and the door used to enter the conveyance from the side has holes in it for air flow. (Tr. 112-115). The personnel conveyance and the muck bucket move through the same shaft, but are not the same size. (Tr. 111). The top of the conveyance is not open. (Tr. 123). The personnel conveyance also has a steel door along one side that slides open and closed for miners to enter and exit the conveyance. (Tr. 108). Goodell testified that he does not believe that the personnel conveyance fits the definition of “bucket” in the The Dictionary of Mining, Mineral and Related Terms (2d ed. 1997) (“DMMRT”). (Tr. 123).

Goodell also testified about the safety of using the personnel conveyance to transport people. The conveyance slows down automatically when approaching stations and busy areas and can stop automatically if there are potential problems. (Tr. 59, 75). The speed of the personnel conveyance is based upon its location in the shaft, not the controller’s decision. (Tr. 70). The personnel conveyance cannot enter the Galloway unless it is signaled by a human being and once in the Galloway it moves at 60 fpm. (Tr. 60; Ex. P-1). Several sets of steel doors provide an airlock and, when any conveyance travels through one of the several steel doors in any part of the shaft, Resolution limits its speed to 200 fpm. (Tr. 45-47, 54; Ex. P-2 at :50, 2:52). The busiest section of the shaft, before the Never Sweat level, is monitored by video cameras, but Resolution does not want the conveyance to travel at more than 500 fpm through this section. (Tr. 54). Below the busy section of the shaft, the conveyance no longer passes through doors and the conveyance increases its speed to 1200 fpm. (Tr. 55-56; Ex. P-2 at 2:56). Conveyances in the shaft can travel through two separate tracks, which are 5.5 feet apart; permanent obstructions in the shaft are 18 inches from the conveyances.[5] (Tr. 57-58). He considered 18 inches to be a safe distance. (Tr. 128). Through monitors, the hoist operator views a plethora of information, warning signals, and video coverage of the conveyances. (Tr. 71; Ex. P-1 at 3-7). Both the hoist and the conveyance itself track the location of the conveyance; if their information does not match, the hoist shuts down and stops the conveyance. (Tr. 80). The conveyance has both radio and bell communication systems. (Tr. 116). Based upon 39 years of experience, Goodell believes that speed does not affect the likelihood of a collision involving the personnel conveyance. (Tr. 135). Although aerodynamics could lead to a collision due to the swinging of a conveyance, Goodell testified that Resolution has not experienced the personnel conveyance or any of its buckets swinging. (Tr. 133, 135). Increased speeds would not cause the conveyances to swing. (Tr. 135). Goodell also testified that increased kinetic energy does not increase the risk of a collision. (140).[6]

Hector Denogean, the shaft superintendent of the 10 shaft project, examines the shaft several times each day. (Tr. 155). He believes that entering and exiting the personnel conveyance as opposed to a bucket eliminates trip and fall hazards to miners, especially those with knee problems, because the miners can simply walk through the door as with an elevator. (Tr. 163). Experiencing an emergency stop when a bucket moves 1,200 fpm feels the same to Denogean as an emergency stop that occurs at any other speed. (Tr. 168).

Ryan Gough, an engineer who manages project services at Cementation, testified as a shaft sinking design and operations expert. (Tr. 188). Although it may be possible for the personnel conveyor to swing, Gough testified that it does not do so. The entire system does, however, sometimes rotate in a counter-clock wise motion, but usually only during muck mode when the personnel conveyance is not in use. (Tr. 199-200). There is “very little” movement of the personnel conveyance. (Tr. 201). He believes that the conveyance is superior to buckets for personnel transportation even if the buckets were to transport miners at 500 fpm while the conveyances did so at 1200 fpm. (Tr. 232). Gough testified that it was not a “reasonable risk” that the personnel conveyance would collide with anything. (231). Cementation documents often refer to the personnel conveyance as a bucket. (Tr. 236; Ex. R-4).

Thomas Barkand, the expert on hoists for the Secretary, testified that the personnel conveyance is a bucket and is similar to the other buckets at the Mine. (Tr. 249; Ex. R-1,R-2,R-3). Neither the presence of a door nor the enclosed top mean that the conveyance is not a bucket, testified Barkand. (Tr. 249). In addition to similar shapes and dimensions, all three buckets used at the Mine are suspended by hanging from the crosshead, which is “the real quantifying issue.” (Tr. 250). The personnel bucket is capable of acting like a bail although it is not used in such a manner while transporting personnel. Id. Fixed guided conveyances are permitted to move at 2500 fpm, but the personnel conveyance is not a fixed guided conveyance according to Barkand. (Tr. 252). Barkand testified that MSHA regulations do not define what qualifies as a bucket. (Tr. 258). If the personnel conveyance used at the mine moved faster, its potential kinetic energy would increase. (Tr. 253). Barkand agreed that the personnel conveyance was not designed to carry muck or to be dumped and did not fit the definition of “bucket” in the DMMRT. (Tr. 260). Barkand also acknowledged that the DMMRT was a source for defining mining terms and he could not name another source to support his position. (Tr. 259).

DISCUSSION AND ANALYSIS

The Secretary argues that the personnel conveyance is a bucket and therefore section 57.19076 and its maximum speed limitation of 500 fpm apply. The conveyance looks like a bucket. It is attached to a crosshead and guided in the same manner as the other buckets at the mine. Resolution and its consulting companies all have documents that refer to the conveyance as a bucket. MSHA’s expert Tom Barkand, furthermore, testified that the conveyance is a bucket despite the presence of a covered top and a side door. The Secretary contends that the court should defer to his interpretation that the conveyance is a bucket under section 57.19076. Interestingly, the Secretary argues that Judge Clark did not have the authority to determine that the personnel conveyance was a not bucket because only the Commission has the authority to review the Secretary’s interpretation of MSHA’s safety standards.

Resolution argues that Citation No. 8596049 should be vacated because the personnel conveyance is not a bucket under section 57.19076. The appearance, design, use, and manner of function of the personnel conveyance are different from standard mucking or concrete buckets. In addition, the conveyance does not conform to the definition of “bucket” in DMMRT. Indeed, MSHA’s decision and order denying the petition for modification admits that the personnel conveyance is not a bucket. (Ex. 14 at 1).

Resolution also argues that the Secretary’s interpretation of section 57.19076 only deserves Mead or Skidmore deference and the Secretary’s interpretation is unpersuasive. It maintains that section 57.19061,[7] which applies to conveyances other than buckets, applies to its conveyance. The citation should be vacated because section 57.19076 does not apply. Resolution also argues that the citation should also be vacated upon the ground of res judicata.

Resolution’s argument that the current proceedings are barred by res judicata is rejected, because the claims involved in the current proceeding and the modification hearing before the Department of Labor judge are not identical and Resolution did not prove all the elements necessary to establish res judicata. See Faith Coal Co., 19 FMSHRC 1357, 1365 (Aug. 1997). Judge Clark’s decision is not binding on the Commission.

Subpart R of section 57, “Personnel Hoisting,” provides detailed requirements for the use of equipment to hoist personnel. At issue here is the speed with which a person may be hoisted; the Secretary argues that Resolution cannot hoist a person at speeds in excess of 500 fpm in its personnel conveyance, while Resolution would like its conveyances to move up to 1200 fpm when carrying personnel. Section 57.19076, cited in the violation, only applies to buckets carrying miners and requires movement speed to be no greater than 500 fpm. Section 57.19061 applies to conveyances other than buckets and it provides that movement speed be no greater than 2,500 fpm. The dispute between the parties before me is whether the conveyance used to carry miners into Shaft 10 at the Mine is a “bucket” under section 57.19076.

When considering an agency’s interpretation of a regulation the “starting point” is the language of the regulation itself. Dyer v. U.S., 832 F.2d 1062, 1066 (9th Cir. 1987); Nolichuckey Sand Company, Inc., 22 FMSHRC 1057, 1062 (Sept. 2000). Where a regulatory provision is clear and unambiguous, the provision must be enforced as written without regard for the interpretation of the agency. Wolf Run Mining Company, 32 FMSHRC 1669, 1678 (Dec. 2010); Bluestone Coal Corp., 19 FMSHRC 1025, 1028 (June 1997); Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996); Nolichuckey Sand Company, Inc., 22 FMSHRC at 1062. If the regulation is ambiguous, however, the agency’s interpretation is given controlling deference unless it is “plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); Auer v. Robbins, 519 U.S. 452, 461 (1997). Basically, deference is given to the agency’s interpretation if it is “not unreasonable[.]” Udall v. Tallman, 380 U.S. 1, 18 (1965).

An agency’s interpretation that does not carry the force of law may still be worthy of receiving another form of persuasive deference or “respect.” Christensen v. Harris County, 529 U.S. 587; Skidmore v. Swift & Co., 323 U.S. 134, 140 (U.S. 1944); U.S. v. Mead Corp., 533 U.S. 218, 221 (2001). The persuasive powers, or level of deference, given to “an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency's care,its consistency,formality, and relative expertness,and to the persuasiveness of the agency's position[.]” Mead Corp., 533 U.S. at 227-228 (internal citations omitted). Internal agency guidelines not subject to the APA only receive “some deference.” Reno v. Koray, 515 U.S. 50, 61 (1995). Persuasive deference may be given to an agency’s interpretation of an ambiguous regulation it administers when that interpretation is expressed in the form of a litigation position that “reflect[s] the agency's fair and considered judgment on the matter in question.” Auer v. Robbins, 519 U.S. at 462; accord Akzo Nobel Salt, Inc., 212 F.3d 1301, 1304 (D.C. Cir. 2000); Nolichuckey Sand Company, Inc., 22 FMSHRC at 1062.

I find that the language of section 57.19076 is not entirely clear on its face. The term “bucket” could be limited to the type of open bucket pictured in Ex. P-9 or it could be interpreted in a broader manner. Neither the Mine Act nor the act’s legislative history provides any guidance as to the meaning of the term “bucket” in the context of the safety standard. The regulatory history also does not provide any guidance as to the scope of the safety standard. Thus, the persuasiveness and consistency of the Secretary’s interpretation must be evaluated to determine how much deference should be accorded, if any.

I find that the Secretary’s interpretation is erroneous and unpersuasive. His position on the meaning of the term “bucket” has also not been consistent. I find that Resolution’s personnel conveyance is not a bucket.[8] The conveyance in question does not fit the ordinary definition of a bucket and was not designed to function as a bucket. Resolution’s personnel conveyance does not fit the definition of bucket in the DMMRT. The Commission recognizes that the technical usage of a term is relevant to providing the meaning of that term and DMMRT is a recognized authority to determine technical usage. Wolf Run Mining Co., 32 FMSHRC at 1685; Bluestone Coal Corp., 19 FMSHRC at 1029; The American Coal Company, 35 FMSHRC __, slip op. at 2 (Feb. 2013). The pertinent definition of bucket from the DMMRT is “[a]n open-top can, equipped with a bail, used to hoist broken rock or water and to lower supplies and equipment to workers in a mine shaft or other underground opening.” DMMRT at 71. Although the personnel conveyance could theoretically be used to transport supplies and Resolution and Cementation often referred to the conveyance as a bucket, it does not match the definition of bucket. Resolution’s personnel conveyance has a closed top, and is not used to hoist broken rock or water. The conveyance was specifically designed to only hoist miners and whatever equipment is on the persons of those miners. The conveyance also has a door, which in addition to making it look unlike a bucket, would also be an unnecessary addition to a bucket and make it difficult to use for any function other than transporting miners.

The Secretary’s argument that the definition of bucket in DMMRT should not be relied upon is unconvincing. The dictionary definition of a term should not be relied upon when a different dictionary provides “different or uncertain outcomes.” The American Coal Company, 35 FMSHRC __, slip op. at 2 (quoting Alarm Indus. Communication Comm. v. FCC, 131 F.3d 1066, 1069 (D.C. Cir. 1997). The Secretary, however, did not provide any alternate definition of bucket at the hearing or in its brief. Barkand, furthermore, admitted that the dictionary was an acceptable source of industry terminology. The Secretary’s argument that the conveyance qualifies as a bucket primarily because it was suspended from a crosshead fails, as he does not show how the suspension of the bucket relates to what is considered a bucket in the safety standard. If the Secretary wanted any personnel conveyance suspended from a wire rope without the use of a fixed guide to be subject to the 500 fpm speed limit, he could have easily said so in the safety standard. The way the standard is written, the 500 fpm speed limit is limited to buckets used to transport people.

MSHA also interpreted section 57.19076 in a different manner when Neal H. Merrifield, Administrator for Metal and Nonmetal Mine Safety and Health, denied the petition for modification in his decision and order. The decision and order states:

Section 30 C.F.R. § 57.19076 requires persons hoisted in buckets, speeds shall not exceed 500 feet per minute and shall not exceed 200 feet per minute when within 100 feet of the intended station. The personnel conveyance that this petition is submitted upon is not a “bucket,” but rather is an enclosed capsule designed for the transport of personnel. Notwithstanding, MSHA has asserted that the regulation is applicable and this petition distinguishes this means of transport and operational conditions to assure the agency that the same level of safety as intended by the standard is met.

(Ex. P-14 at 1) (emphasis added). Thus, it is clear that in November 2011 the agency recognized that the personnel conveyance was not a bucket but that MSHA intended to apply section 57.19076 to the conveyance despite that fact. This action exceeds the Secretary of Labor’s authority and I find that the Secretary’s interpretation of the standard to apply to the personnel conveyance in use at Resolution is not entitled to deference.

One of MSHA’s concerns appears to be the possibility that miners would be injured in the event the conveyance is forced to stop quickly in an emergency. MSHA’s decision denying the petition for modification provides:

Actual deceleration rates experienced by miners riding in the bucket can be greater than the drum decelerations due to the elasticity of the suspension ropes. The stretching and subsequent rebound of the suspension rope is an inherent characteristic of the rope which can introduce accelerations and decelerations to the conveyance which exceed the drum deceleration and cause injury to miners.

(Ex. P-14 at 2). The Secretary relates this hazard to the speed of the conveyance. Resolution produced a report, expert testimony, and various opinions of consulting firms showing that the personnel conveyance is as safe moving at 1200 fpm as it is moving at 500 fpm. Resolution’s operating plan for the conveyance also includes numerous safety features such as sophisticated electronics, extensive clearance between the conveyance and obstacles, and required speeds below 500 fpm in sections of the shaft that present risk. Gough testified that the deceleration rates and “cage bounce” are as safe at speeds of 1200 fpm as they are at 500 fpm in the personnel conveyance. (Tr. 220-221, 233; Ex. P-11 at 3). I do not reach these issues because I have determined that the conveyance is not a bucket. I note that section 57.19061, which applies to the conveyance in question, provides that “[t]he safe speed for hoisting persons shall be determined for each shaft, and this speed shall not be exceeded.” MSHA did not cite Resolution under that safety standard.

ORDER

I find that Resolution’s personnel conveyance is not a bucket and therefore Resolution did not violate 30 C.F.R. § 57.19076. For the reasons set forth above, Citation No. 8596049 is VACATED and these proceedings are DISMISSED.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Jason Grover, Esq., Office of the Solicitor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209 (Grover.Jason@dol.gov; Certified Mail)

Laura Beverage, Esq., Jackson Kelly, 1099 18th Street, Suite 2150, Denver, CO 80202 (lbeverage@jacksonkelly.com; Certified Mail)

RWM/bjr

[1] Section 57.19076 requires that “[w]hen persons are hoisted in buckets, speeds shall not exceed 500 feet per minute and shall not exceed 200 feet per minute when within 100 feet of the intended station.” 30 C.F.R. § 57.19076.

[2] Judge Clark’s decision is labeled as exhibit J-1 in this case. I reference the exhibit numbers used in Judge Clark’s case in this decision.

[3] The Galloway is a work stage that can move up and down the shaft at 12 fpm by being pulled by four large cables that connect it to the surface. It is 60 feet high and has five active decks as well as the ability to accommodate a sixth deck. Buckets and conveyances move through the Galloway. (Tr. 40-41).

[4] Cementation Canada (“Cementation”) has expertise in shaft-sinking projects and works at the Number 10 shaft as a contractor for Resolution. Cementation employees operate and maintain the hoist system in the Number 10 shaft. (Tr. 193). Cementation also designed the entire obstruction control system for the number 10 shaft, which monitors and controls the movement of personnel conveyances and buckets through the shaft using two Programmable Logic Controllers (“PLCs”). These PLCs control numerous functions of the conveyances and buckets including applying automatic brakes and monitoring the location of conveyances and buckets. (Tr. 180; Ex. P-17). Cementation designed the personnel conveyance and developed software that runs the conveyance, although it did not physically build the conveyance. (Tr. 192).

[5] There are two sides to the Number 10 shaft, Side No. 1 and Side No. 2, where either one bucket or one personnel conveyance can travel. Each side has only one bucket or conveyance at a time, but both No. 1 and No. 2 can have some form of bucket or conveyance simultaneously. When both sides are occupied, one side moves its contents up while the other moves its contents down at the same speed because both sides are controlled by the same hoist. When the buckets or conveyances pass each other, they are near the vertical center of the shaft. The sides are in a “mechanical balance.” (Tr. 55-56; 3:10). When muck buckets are in “muck mode,” personnel conveyances are never in use, but buckets not in “muck mode” can move at the same time as a personnel conveyance but on the other side of the shaft. (Tr. 49-50).

[6] Goodell stated that in October 2011 a concrete bucket struck a loose brad on the Galloway level, knocking it off of the shaft and causing it to fall onto and injure a miner. (Tr. 138). Increased speed of a bucket or conveyance and increased potential kinetic energy does not make it more likely to collide with something. (Tr. 140). Speed was not a contributing factor in the accident; the maximum speed in the area where the accident occurred is 500 fpm, and the concrete bucket was moving less than 60 fpm at the time of the accident. (Tr. 142). The personnel conveyance made evacuation of the victim of this accident easier. (Tr. 144). Goodell testified that an obstruction attached to the bucket was the cause of the accident. (Tr. 147).

[7] Section 57.19061 mandates that “[t]he safe speed for hoisting persons shall be determined for each shaft, and this speed shall not be exceeded. Persons shall not be hoisted at a speed faster than 2,500 feet per minute, except in an emergency.” 30 C.F.R. § 57.19061.

[8] I reach this conclusion for essentially the same reasons as Judge Clark.