FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

Telephone No.: 202-577 6809

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August 19, 2010

    ORDER ON RESPONDENT’S MOTION FOR SUMMARY JUDGMENT and its ALTERNATIVE MOTION FOR PARTIAL SUMMARY DECISION AS TO SIGNIFICANT & SUBSTANTIAL FINDINGS

             This case arose in connection with a fatality at the Respondent’s Oak Grove Mine on May 22, 2008. It is alleged that on that date a motorman died when he was crushed between “a derailed haulage car and the locomotive he had been operating.” Citation No. 7696616, issued January 8, 2009. The Citation averred that the haulage car was being pushed on the main haulage road and that the miner would not have been exposed to the hazard if the haulage car was pulled, instead of being pushed. MSHA contended that the practice of pushing the haulage car contravened a safeguard notice, number 2604892, issued more than more than twenty years earlier, on March 3, 1986.

The pertinent text from the March 3, 1986 issuance of the safeguard provided:

This notice to provide safeguard requires that cars on main

                        haulage roads not be pushed except where necessary to push

                        cars from side tracks located near the working section to the

                        producing entries and rooms.

Oak Grove Exhibit 2.

            Presently before the undersigned Administrative Law Judge (“Court”) is Respondent’s Motion for Summary Decision, or in the Alternative, Motion for Partial Summary Decision with Respect to Significant and Substantial Findings. (“Motions”). The Secretary filed a Response to the Respondent’s Motions (“Response”). Regarding its Motion for Summary Decision, Contestant/ Respondent Oak Grove Resources, LLC (“Oak Grove”) acknowledges that the Safeguard was issued in 1986 but that it then received a waiver from that Safeguard on August 31, 1987. Oak Grove then recounts that, on December 21, 2001, MSHA issued a notice that the waiver was void and that “all ‘[f]uture MSHA inspections of the transportation of men and materials shall be directed by the provisions of 30 CFR Part 75.1403.” Motion at 3. The history of the events surrounding this Safeguard is not in dispute. Rather, Oak Grove’s critical assertion is that, although MSHA had voided its waiver, it then needed to reinstate the Safeguard, Number 2604892, but that it never did so. Thus, the question posed is what procedural steps are required by MSHA in circumstances when it issues a valid Safeguard notice, then issues a “waiver” for that Safeguard, and then, thinking better of that decision to issue a waiver, wishes to reinstate the original Safeguard. If Oak Grove is correct that MSHA needed to formally reinstate the Safeguard, then it would be entitled to summary decision, as the safeguard did not exist at the time of the fatality and consequently any citation relying on it would be null.

            Oak Grove’s motion in the alternative argues that, even if the safeguard did not need to be reinstated, the “significant and substantial” designation can not be included within the Citation because only “mandatory health and safety standards” may have such a finding and a “Notice to Provide Safeguard” is not such a “mandatory standard” under the Mine Act. Id. at 4.

Discussion

I. Oak Grove’s Motion for Summary Decision

            In its Memorandum in Support of its Motions, Oak Grove describes MSHA’s 1987 action as waiving the safeguard which had been issued the year before. Thereafter, in 2001, it acknowledges that it was informed by letter that the 1987 waiver was void. However, it contends that not only did the letter not indicate that the 1986 safeguard was now reinstated, but to the contrary, it believed that the letter suggested that, with the act of voiding the waiver, safeguards then would be issued in the future. Oak Grove, looking to the wording of the safeguard provisions, points out that while such safeguards may be “provided” to minimize hazards with respect to the transportation of men and machines, this is implemented by the authorized representative’s issuance, in writing, of the “specific safeguard which is required” and which is to include a time for the operator to provide and maintain such safeguard. Memorandum in Support at 4. It is Oak Grove’s position that the December 3, 2001 voiding letter is not a substitute for those safeguard issuance requirements found at 30 C.F.R. § 75.1403. The MSHA letter, it contends, is merely a “blanket statement of sorts” which voided all waivers issued before 1986. Oak Grove complains that the letter left it with “no required notification of what [would now be] specifically required of [it]” and this left Oak Grove unable to discern whether it would be receiving a new safeguard or simply that the prior safeguard would be reinstated. Id.

            In the Secretary’s Response, it characterizes MSHA’s August 31, 1987 letter as “a waiver of 30 C.F.R. 75.1403-10(b) contingent upon six conditions.” It then asserts that MSHA’s December 3, 2001 letter “provided the Respondent with clear notice that the August 31, 1987 letter was void.” The effect of that voiding, it contends, was to “re-establish[] the original conditions of [the 1986] Safeguard.” Response at 2. MSHA asserts that the December 2001 letter “specifically voided the pushing of heavy equipment on track haulage roads.” The contention is accurate, as the letter states that the Respondent is “hereby notified that the waiver dated August 31, 1987, permitting the pushing of heavy equipment on track haulage roads and any other waivers granted prior to January 1, 1996, is void.” Significantly, as observed by the Secretary, the next line in the letter voiding the August 1987 waiver advises that “[f]uture MSHA inspections of the transportation of men and materials shall be directed by the provisions of 30 C.F.R. Part 75.1403.”

            The Court agrees with the Secretary that the December 3, 2001 letter from MSHA to the Respondent negated the August 1987 waiver and thereby restored the effective status of the March 3, 1986 notice to provide safeguard. Although Oak Grove cites to Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Rev. Comm. April 1985) (“SOCCO I”) for the proposition that a safeguard notice must identify with specificity the nature of the hazard being addressed and the conduct to remedy it, this requirement is applicable at the time the safeguard is first issued. Oak Grove would prefer to treat this case as if no prior safeguard had been issued, but that is not the case. In short, the December 3, 2001 letter from MSHA was not issued as if there was a blank slate on the issue, as that is not the historical reality.

            Oak Grove’s position that MSHA did not provide “proper notice that the safeguard would again be considered enforceable” is rejected. Id. at 6 (emphasis added). Although it contends that the December 2001 letter from MSHA indicated only “a future intention to enforce Section 75.1403, with no mention of the past Safeguard” and, applying that perspective, it asserts that the Safeguard in issue had not been “properly reinstated,” that is not a fair reading of the December 3, 2001 letter from MSHA. Id. (emphasis in original). Oak Grove cites no principle of law to support its claim that, because it issued a waiver, MSHA must begin the safeguard notice process ab initio. Even the waiver itself listed six contingencies for it to apply and there was no indication in that letter that MSHA could not entirely void the contingent-laden waiver. It is noted that the context in which the waiver was issued was not contractual and therefore MSHA did not take on any obligations which would restrict its ability to reactivate the 1986 Safeguard notice. Nor does the affidavit of Mr. Thompson, offered by Oak Grove to support the idea that the Notice of Safeguard was not in effect after it received the December 3, 2001 letter from MSHA, provide a recognizable defense, as the determination made here involves the legal determination of the terms of the waiver and the December 2001 notification to Oak Grove that the waiver was now void. For that reason, Mr. Thompson’s personal interpretation of the MSHA December 2001 letter does not establish the letter’s legal effect.

            Accordingly, the Court finds that the December 3, 2001 letter revived the March 3, 1986 Safeguard and there was no obligation for MSHA to take the strictly procedural steps anew in order to return the notice of safeguard to its full effect.

II. Oak Grove’s Alternative Motion for Partial Summary Decision with Respect to Significant and Substantial Findings.

            As noted, Oak Grove’s alternative contention is that, even if the Court finds that the safeguard is in effect, the Citation in issue in this case cannot include a “significant and substantial” finding because that designation is only available for violations of mandatory health and safety standards and a safeguard is not such a standard. To support this argument,

Oak Grove looks to Section 104(d) of the Mine Act, which provides that if a violation of a mandatory health or safety standard is found, other findings may accompany that determination. One of those possible findings is that the nature of the violation is such that it “could significantly and substantially contribute to the cause and effect of a . . . mine safety and health hazard,” which is known by the shorthand expression as a “significant and substantial” finding or, even briefer, a “S & S” finding.

            As only “mandatory health and safety standard[s]” can potentially include the “significant and substantial” finding, Oak Grove looks to the Mine Act’s definitions section for the meaning of such standards. There, at Section 3(l) , the Mine Act provides that this means “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[.]” In short, an “S & S” finding can only be included if the standard is established by titles II or III of the Mine Act or promulgated pursuant to Title I of the Mine Act.

            Oak Grove notes that cases, such as Cyprus Emerald Resources Corp. v. FMSHRC, 195 F.3d 42 (D.C. Cir. 1999) (“Cyprus Emerald”) support this view. The Court of Appeals held there that a “significant and substantial” finding was not available for two cited regulations because they were not mandatory standards promulgated under section 101 of the Mine Act. Instead the regulations in issue there were promulgated under section 508 of the Mine Act. Mandatory safety and health standards are to be promulgated under section 101 of the Act. The Court concluded that no Chevron analysis was needed, as the plain wording of the Act allows the “significant and substantial” finding only for violations of mandatory health or safety standards. Cyprus at *45.

            For its part, the Secretary too cites to Cyprus Emerald, agreeing that only a mandatory health or safety standard may have the additional designation of “S & S.” Thus, the Secretary turns to Section 3(l) of the Mine Act as well. The Secretary then observes that the interim mandatory safety standards under Title III of the Mine Act provide, without any qualifier, that the provisions of sections 302 through 318 of Title III shall be interim mandatory safety standards applicable to all underground coal mines and shall be enforced in the same manner and to the same extent as any mandatory safety standard. The Secretary submits that this language is inescapable and consequently that Section 314(b) is to be enforced as the mandatory standard that it is. Response at 4.

            The essential problem with Cyprus Emerald is that its reach is limited to standards that are not mandatory health or safety standards. If the matter involves a mandatory health or safety standard, as it does in this Oak Grove case, then Cyprus Emerald counts for naught. 30 C.F.R. § 50.11(b), dealing as it does with accident investigations, is not a mandatory health or safety standard. Rather, it is a standard dealing with a mine operator’s duties in the wake of an accident.

While the Commission concluded that non-mandatory health or safety standards could include a

‘significant and substantial” designation on the theory that the Mine Act was ambiguous on that point, the D.C. Circuit in no way suggested that such a designation was improper where a mandatory health or safety standard is involved.

            The Secretary also notes that the 11^th Circuit, in addressing the language found in Section 201(a) of the Mine Act, which language is nearly identical to that in Section 301(a), concluded that Section 202(f) is a mandatory health standard. National Mining Ass’n v. Sec’y of Labor, 153 F.3d 1264 (11^th Cir. 1998). Although the focus of that case was the next step envisioned by Congress, that such mandatory standards could be superseded, but only by improved mandatory standards, it necessarily agreed that, until such improvements came about, the existing interim standards were mandatory. This meant that, applying the plain language of Title II, which has the heading “Interim Mandatory Health Standards,” the 11^th Circuit had to have recognized the word “Coverage” for such mandatory health standards and read exactly what Congress directed: “[t]he provisions of sections 202 through 206 of [Title II] and the applicable provisions of section 318 of title III shall be interim mandatory health standards applicable to all underground coal mines until superceded [by improved mandatory health standards].” Title III employs the same approach, the only difference being that the subject addressed by Congress there is “interim mandatory safety standards for underground coal mines. Thus, in the “Coverage” under Title III, Congress mirrored its commands for Title II, by providing that “[t]he provisions of sections 302 through 318 of [Title III] shall be interim mandatory safety standards applicable to all underground coal mines until superceded [by improved mandatory safety standards].”

            As applied here, there is no genuine dispute but that the measure for deciding whether a “significant and substantial” finding may attach to safeguard violations is dependent on whether the standard was established by titles II or III of the Mine Act or as a standard promulgated pursuant to title I of that Act.

            Oak Grove sums up its position that the authority for the Secretary of Labor to issue safeguards is derived from Section 314(b) of the Mine Act and that the Secretary implemented that statutory provision by promulgating the regulations found at 30 C.F.R. § 75.1403. Id. at 9. It asserts that the “requirements set out in the safeguard, not the Order or the criteria or Section 314(b) or Section 75.1403, establish the conduct required of the operator.” Id. at 10. On those bases it contends that, as a safeguard is neither an “interim standard” established by Titles II or III of the Mine Act nor is it promulgated under Title I pursuant to notice and comment rulemaking, it does not fit within the definition of a mandatory standard. Id. at 11.

            Oak Grove further maintains that, contrary to the determination of Judge Feldman in Wolf Run Mining Co., 30 FMSHRC 1198, 2008 WL 5479246, (December 18, 2008), safeguards are not interim mandatory standards established under Title III of the Mine Act. To support this view, Oak Grove points to the fact that safeguard notices are issued on a mine-by-mine basis by the issuing inspector and it contends that the “substantive benchmark for the safeguard is the individual safeguard notice itself.” Id. at 14. It rejects the position that one can rely on section 314(b) of the Mine Act as the source of the safeguard because that statutory provision does not itself spell out the requirements that can be violated.

            In the Court’s view, the arguments made by Oak Grove in this regard note, from its perspective, alleged problems with safeguard notices but their argument does not show that safeguards were not established as interim mandatory standards under Title III of the Mine Act. Thus, to remark that safeguards lack a particular code section to examine, and to note that the safeguard notice itself provides the substantive benchmark, is really a disagreement over the method Congress employed to address enforcement for the safe transportation of men and materials, but not a challenge to whether safeguards are interim mandatory standards under Title III. Despite the subject’s obvious concern to Congress, as expressed through Section 314, Oak Grove’s interpretation would deny MSHA from expressing that a given violation is “significant and substantial” even when, as here, the facts, at least as alleged here, fairly shout that it was.

            Oak Grove does attempt in a fashion to address the language that is troublesome to its argument, namely that Section 301(a) of the Mine Act provides that “the provisions of Sections 302 through 318 shall be interim mandatory safety standards applicable to all underground coal mines . . . and shall be enforced in the same manner and to the same extent as any mandatory standard promulgated under section 101 of this Act.” Id. at 15. (ellipsis in quoted language). To avoid this plain expression, Oak Grove simply puts that language aside and contends that safeguards only allege a violation of the underlying language in that safeguard and therefore never allege a violation of Section 301 itself.

            While Oak Grove acknowledges that Judge Feldman correctly observed that since Section 314(b) is included within Title III and therefore that safeguards issued pursuant to that Section must be classified as interim mandatory standards, it describes this observation as “an unnecessary detour” which can be avoided if one examines only the underlying safeguard itself. Id. at 16.

The Court does not view Judge Feldman’s route as a “detour” but rather as the main thoroughfare to answering the issue.

            Accordingly, for the reasons stated, Oak Grove’s Motion for Summary Decision or Partial Summary Decision is DENIED. The case should now proceed for scheduling of the hearing. The parties are directed to contact the Court for that purpose.                                                       

William B. Moran

Administrative Law Judge

Distribution:

Justin A. Rubenstein, Esq., Dinsmore & Shoal, LLP, 215 Don Knotts Blvd., Suite 310, Morgantown, WV 26501

David H. Allen, Jr., Conference & Litigation Representative, U.S. Department of Labor, MSHA, 135 Gemini Circle, Suite 213, Birmingham, AL 35209