FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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Washington, DC 20001-2021

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June 30, 2011

    ORDER ON MOTIONS

            Before the Court are Contestant Revelation Energy, LLC’s Renewed Motion for Summary Decision (“Revelation’s” or “Contestant’s” Motion) and Respondent, Secretary of Labor’s Motion to Dismiss ( “Secretary’s” or “Respondent’s” Motion ). Revelation’s Motion presents the legal issue succinctly, that is, “whether a large rock leaving a mine site after a blast and landing in a residential yard, with no injuries, constitutes an ‘accident’ for purposes of a Section § (sic)103(k) Order.” Revelation Motion at 1. Under the Mine Act, a section 103(k) order authorizes a mine inspector, in the event of an accident which occurs in a coal or other mine to issue such orders as he deems appropriate to insure the safety of any persons in the coal or other mine. 30 U.S.C. 813(k). This issue was addressed in the Court’s January 21, 2011 Order Denying Contestant’s Motion for Summary Decision and the parties acknowledge that the purpose behind their respective motions here is to place the case in a posture for review by the Commission. For the reasons which follow, the Court DENIES Contestant’s Renewed Motion and GRANTS the Secretary’s Motion to Dismiss Revelation’s Notice of Contest.

            Reduced to its essence, Contestant contends in its Renewed Motion for Summary Decision that the Secretary should be bounded by its definition of an “accident” per its regulation in Part 50 at 30 C.F.R. § 50.2(h). The regulations in Part 50 address “Notification, Investigation, Reports and Records of Accidents, Injuries, Illnesses, Employment and Coal Production in Mines.” Beyond Part 50, the Contestant also points to the Secretary’s Program Policy Manual, which cites the same regulation for the definition of an “accident.” Thus, Contestant asserts that the Secretary cannot escape the regulatory definition, as echoed by the Policy Manual. It is the Contestant’s position that to allow the Secretary to go beyond its regulatory and policy manual enunciations amounts to permitting “ad hoc definitions of the term ‘accident’ after the fact to justify 103(k) orders.” Contestant’s Motion at 2.

            In its Response to Revelation’s Motion, the Secretary notes this Court’s January 21, 2011 ruling and urges that there is no need for the Court to reconsider its earlier decision but that, if it elects to do so, the same result should be reached and the Renewed Motion denied. It asserts that the Court’s earlier ruling “did not overlook controlling precedent, controlling legal principles and did not misapprehend the facts or law in any way, much less in any way that affected the outcome stated in the Order.” Sec’s Response at 4.

            Alternatively, the Secretary argues that the Contestant has misconstrued the MSHA Program Policy Manual. While the Secretary agrees that the Policy Manual does note that the term “accident” is defined at 30 C.F.R. Part 50.2(h), it does not follow that the statutory definition of an “accident,” per 30 U.S.C. § 802(k) is not authoritative in this proceeding, because the Manual does not preclude the broader definition’s use. Thus, “accidents” are not limited to those spelled out in the regulation. The Secretary sees logic in this distinction, maintaining that the Part 50.2(h) provisions identify those types of accidents which must be reported, but that they do not otherwise constrain the statutory provision. Id. at 6. Last, the Secretary notes that neither policy statements by the Agency, nor views expressed by other administrative law judges, are binding upon this administrative tribunal. Id.

            Turning to the Secretary’s Motion to Dismiss Revelation’s Notice of Contest, the Secretary states that the basis for Contestant’s Contest was its claim that “there was no basis for any enforcement action against [Revelation Energy, LLC] in this case,” because there was no “accident” at the S-1 Hunts Branch Mine. As with its response to Contestant’s Renewed Motion for Summary Decision, the Secretary notes that 30 C.F.R. § 50.2 itself provides that it applies only to “this part,” by which it is clearly referring to Part 50 of the Mine Act. In contrast, 30 U.S.C. § 802, the “Definitions” section of the Mine Act, which includes subsection (k) “accident,” applies to “this chapter,” a reference to Chapter 22 of the Act. Given that, the Secretary contends that, as there was an accident, the basis for Contestant’s Contest fails and dismissal must follow.

            Consistent with its view of the applicability of Section 802(k), the Secretary observes that “blasting a 2 ton piece of rock off of mine property and into a nearby yard presented a potential for injury similar to that of a mine explosion, mine ignition, mine fire, mine inundation or injury or death of any person.” Sec’s Motion at 4. (emphasis removed). In support of this perspective, the Secretary notes that the Commission itself has stated that Section 802(k) was “drafted to provide an inclusive, broad definition of the term ‘accident,’” and that it has observed that the definition employs the word includes in then listing specific events. Id. at 4, citing Aluminum Co. of Am., 15 FMSHRC 1821 (Sept. 1993). “Includes,” it points out, is rather obviously a term of enlargement and as such the specific events then listed cannot then be turned around as if the statute had provided “includes only” followed by specific listed events.

            Last, the Secretary asserts that Section 802(k), as the statutory provision, must be the source consulted in determining whether an “accident” has occurred. However, even if one could argue that there was some ambiguity as to whether that section or the regulatory provision at 30 C.F.R. § 50.2(h)(2) should control, under the well-established Chevron analysis, deference must be afforded to the Agency’s interpretation of its regulation if it is reasonable. Id. at 5, citing Chevron U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984). Accordingly, even if a reviewing body might come to a different choice in its own interpretation, it is not entitled to substitute its wisdom for that of the agency’s reasonable view.

            In its Response to the Secretary’s Motion to Dismiss, Contestant, as did the Secretary for its part, repeats the arguments made in its original motion for summary decision, and which arguments the Court outlined in its January 21^st Order denying that motion. One difference is that it characterizes the Court’s earlier ruling, stating that under it, “the occurrence of an ‘accident,’ for purposes of a §103(k) Order, is left to the sole discretion of the Secretary.” Contestant’s Response at 2. Contestant adds that “[a]bsent any controlling definition, an operator has no advance knowledge of what constitutes an ‘accident’ for purposes of a §103(k) . . . [and such an] interpretation is inconsistent with the intent of §§ 103(j) and 103(k) and [would] violate[ ] Revelation’s due process rights. Id. As the Court will explain infra, the Contestant overstates the consequences of the ruling.

            At least it may be said that the Contestant clearly stakes out its position in this matter, contending, as it does, that “events that constitute an ‘accident’ cannot be enlarged beyond those events set forth in 30 C.F.R. §50.2(h).” Id. at 3 (emphasis added). Yet, the Contestant seems to acknowledge that there is not a single source to consult in figuring out when an “accident” has occurred, as it states “[e]ven when an incident does not fall within the statutory or regulatory definition of accident, and no one is injured, the Secretary believes she has the authority to proceed pursuant to §103(k).” Id. (emphasis in original).

            Contestant also asserts that the event giving rise to the issuance of the 103(k) Order here must be similar to the incidents enumerated in that statutory provision or those in 30 C.F.R. §50.2(h). Contestant’s Response at 6. Under its “similar” test, Contestant notes that the event here is not “similar” to a mine explosion, mine ignition, mine fire, or mine inundation – and did not cause death or bodily injury to an individual. Then, consulting 30 C.F.R. §50.2(h), it interprets that provision as speaking to incidents occurring off of mine property only at subsection (h)(12) and for that to apply, there must be death or bodily injury to an individual. Id. at 7.

DISCUSSION

            The first point which needs to be made is that this matter is appropriately disposed of at this time. The parties do not have any genuine factual dispute; that is to say that none have been raised by either of them. The dispute is purely a legal one and whether the rock that blasted off of the mine property was in fact about 6 feet in diameter and weighing about 2 tons has not been challenged, nor would the rock’s exact diameter or weight be determinative of the present issue. Instead the issue is whether a 103(k) Order can be issued in these circumstances:

                        A non injury blasting accident occurred at this surface at approximately

                       6:30 pm resulting in a rock about 6 feet in diameter and weighing

approximately 2 tons leaving the mine property. This rock rolled down

                        the hill through a citizens yard and came to rest in the creek next to the

                        roadway below the citizens residence. This 103 (k) order is issued to

                        protect the safety of all persons on mine site and off mine site.

Order No. 8247763, the Section 103(k) Order in issue here.

            The Court incorporates and reaffirms its original Order addressing this legal issue. For convenience, that Order is attached at the end of this Order. However the Court augments its January 21, 2011 Order with the following additional remarks. First, Contestant elides over the fact that the statutory definition of an “accident” begins with the expansive verb “includes.” Accordingly, the fact that it then lists a number of events so included does not operate to exclude events not expressly named. The word “includes” is usually a term of enlargement, and not of limitation.

            It is the words employed by the statute, not those of a regulation, and even less so the statements within a program policy, that control the outcome here. The term defined, “accident,” is succinctly expressed in the Mine Act:

                        DEFINITIONS Sec. 3. For the purpose of this Chapter, the term –

                       . . . (k) “accident” includes a mine explosion, mine ignition, mine fire,

                        or mine inundation, or injury to, or death of, any person.

30 U.S.C. § 802

            It seems clear that, beyond using the non-restrictive term “includes” for the definition of “accident,” Congress cited some of the more frequent examples of mine accidents, but that, just as clearly, by referring to injury or death, all conjoined by use of the alternative conjunction “or,” that it intended an expansive meaning to “accidents.” Accordingly, any analysis of the scope of the definition of “accident” must also take into account the ordinary meaning of that term. It is certainly not an esoteric term, nor otherwise difficult to understand, being defined in the dictionary as “An unexpected and undesirable event.” See, for e.g., Webster II New Riverside University Dictionary 1984.

            Applying that common definition of the term, it would be hard to conclude that a rock of about 6 feet in diameter and weighing about 2 tons, which exited mine property, traveling down a hill and through a citizen’s yard before coming to rest in a creek below the citizen’s home, could be described in any other manner than as an accident. Certainly it was unexpected and equally so, it was undesirable. Further, it occurred in connection with a mine explosion. Blasting most often is an intended event but, intended or unplanned, it is an explosion and a mine explosion occurred at Revelation Energy’s S-1 Hunts Branch mine. Thus, it is inaccurate to claim that which constitutes an “accident” is left to the sole discretion of the Secretary. One can evaluate a given set of facts and apply that to the very common definition and determine whether there has been an accident.

            In addition to the Program Policy Manual’s inability to restrict a statutory provision, a fact which by itself is fatal to the Contestant’s assertion that it limits the statute, it is noteworthy that, as pertinent here, the Manual focuses primarily on Section 103(j) and only tangentially on 103(k).

            In sum, the construction urged by the Contestant would deny MSHA authority to deal with an event which, by any rational measure, was clearly an accident. As such, it is within the reach of a section 103(k) Order. To reach the result urged by Contestant would affront common sense and be at odds with the remedial nature of the Mine Act.

            Accordingly, for the reasons articulated in this Order and in the Court’s earlier Order denying Contestant’s Motion for Summary Decision, the Court DENIES Contestant’s Renewed Motion and GRANTS the Secretary’s Motion to Dismiss Revelations’ Notice of Contest.