FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

May 21, 2012

ORDER DENYING MOTION

FOR PARTIAL SUMMARY DECISION

AND

NOTICE OF HEARING

Before: Judge Feldman

            These proceedings, brought pursuant to the Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“the Act” or “Mine Act”), concern the question of whether violations of Part 48 of the Secretary’s training regulations for underground miners can properly be designated as significant and substantial (“S&S”).  

            At issue are 104(a) Citation No. 6199742 and 104(g)(1) Order No. 6199463 issued to the Empire Iron Mining Partnership (“Empire”). 104(a) Citation No. 6199742 alleges a violation of 30 C.F.R. § 48.25(a) that requires new miners to be trained in hazard recognition and safety aspects of the tasks to which they will be assigned. 104(g)(1) Order No. 6199463 alleges a violation of 30 C.F.R § 48.27(c) that requires miners to be instructed in the safety aspects and safe work procedures for newly assigned tasks. Sections 48.25 and 48.27 were promulgated as part of the Mine Safety and Health Administration’s (“MSHA’s”) rulemaking proceeding entitled, “Training and Retraining of Miners Working at Surface Mines and Surface Areas of Underground Mines.” 43 Fed. Reg. 47454 (Oct. 13, 1978). The training violations alleged in Citation No. 6199742 and Order No. 6199463 were designated as S&S in nature. The Secretary proposes a civil penalty of $243.00 for 104(a) Citation No. 6199742, and, $3,224.00 for 104(g)(1) Order No. 6199463.

            It is well settled that “[s]ection 104(d) unambiguously authorizes a ‘significant and substantial’ finding for violation only of a mandatory health or safety standard.” Cyprus Emerald v. FMSHRC, 195 F.3d 42, 44 (D.C. Cir. 1999). The Court recently delineated the parameters for considering a regulatory provision adopted by the Secretary as a mandatory health or safety standard. The Court stated:

Section 3(l) of the Mine Act defines a “mandatory health or safety standard” as “the interim mandatory health or safety standards established by [Titles] II and III of this [Act], and the standards promulgated pursuant to [Title] I of this [Act].” 30 U.S.C. § 802(l ). Under [section 101(a) of the Act, 30 U.S.C. § 811(a), of] Title I of the Mine Act, the Secretary may, through notice and comment rulemaking, “develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines.” Id. § 811(a). Title II of the Mine Act provides for interim mandatory health standards “applicable to all underground coal mines” that are to “be enforced in the same manner and to the same extent as any mandatory health standard promulgated under the provisions of [Title I of the Act].” Id. § 841(a). Title III of the Mine Act provides similar authority for interim mandatory safety standards “applicable to all underground coal mines” and “enforced in the same manner and to the same extent as any mandatory safety standard promulgated under [Title I of the Act].” Id. § 861(a).

Wolf Run Min. Co. v. FMSHRC, 659 F.3d 1197, 1198 (D.C. Cir. 2011).

             The Commission has routinely affirmed S&S designations in 104(g)(1) orders citing Part 48 training violations. See, e.g., Twentymile Coal Company, 26 FMSHRC 666, 674-75 (Aug. 2004); Alcoa Alumina & Chemicals, LLC, 23 FMSHRC 911, 912, 916-17 (Sept. 2001). However, the Commission has not previously addressed the assertion that the Secretary is precluded from designating Part 48 training violations as S&S based on the contention that training regulations are not mandatory health or safety standards.

            While the Commission has not directly addressed whether training regulations are mandatory standards, Commission judges have reached different conclusions with respect to this issue. Judge Melick and Judge Hodgdon have concluded that violations of the Secretary’s training regulations may not be characterized as S&S because these regulations are not mandatory health or safety standards. Carmeuse Lime & Stone, Inc., 29 FMSHRC 816, 821 (Sept. 2007) (ALJ Hodgdon) (noting that violations of Part 48 of the Act governing training at underground mines could not be cited as S&S); Rinker Materials South Central, Inc., Docket No. KENT 2008-1049-M (Sept. 2009) (ALJ Melick) (also noting that violations of Part 46 of the Act governing training at surface mines could not be designated as S&S). Conversely, in Carmeuse Industrial Sands, Docket No. WEST 2009-267-M (June 2010) (ALJ Barbour), the judge determined that Part 46 training violations can be designated as S&S.

            Empire now has filed a motion for partial summary decision on this very question, arguing that violations of Part 48 cannot be characterized as S&S because training regulations

are not mandatory safety standards. Empire relies on the Court’s holding in Cyprus Emerald that the Secretary is precluded from designating violations of Part 50 as S&S because Part 50 does not contain mandatory health or safety standards. 195 F.3d at 45. The provisions of Part 50 govern the reporting of accidents. The Secretary opposes Empire’s motion.

            Disposition by summary decision is appropriate provided (1) the entire record, including pleadings, affidavits, and answers to interrogatories, establish that there is no genuine issue as to any material fact; and (2) the moving party is entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). These matters concern analysis of the plain language of sections 101(a) and 115(d) of the Act authorizing the Secretary to develop approved training plans which is a matter of law. 30 U.S.C. §§ 811(a), 825(d). Thus, resolution of the propriety of an S&S designation for alleged training violations is amenable to summary decision.