<DOC>
[DOCID: f:ct20009.wais]
DOE RUN COMPANY
October 25, 2000
CENT 2000-9-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 25, 2000
THE DOE RUN COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. CENT 2000-9-RM
: Citation No. 7884481; 9/9/99
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Viburnum No. 29 Mine
ADMINISTRATION, (MSHA), : Mine ID 23-00495
Respondent :
: CENT 2000-14-RM
: Citation No. 7884492; 9/10/99
:
: Buick Mine/Mill
: Mine ID 23-00457
:
: CENT 2000-22-RM
: Citation No. 7884505; 9/13/99
:
: CENT 2000-23-RM
: Citation No. 7884506; 9/14/99
:
: Brushy Creek Mine/Mill
: Mine ID 23-00499
DECISION
Appearances: R. Henry Moore, Esq., Buchanan Ingersol, P.C., Pitts-
burgh, Pennsylvania, for Contestant;
Kristi L. Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for Re-
spondent.
Before: Judge Zielinski
These cases are before me on notices of contest filed by The
Doe Run Company against the Secretary of Labor and her Mine
Safety and Health Administration (MSHA) pursuant to Section 105
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 815
(the "Act"). The company contests the issuance of four
citations alleging violations of a mandatory health and safety
standard, 30 C.F.R. � 57.11050(a), which requires that two
escapeways be maintained from the "lowest levels" of underground
metal and non-metal mines. A hearing was held on May 31, 2000,
in St. Louis, Missouri. Following receipt of the transcript, the
parties submitted briefs on August 21, 2000. Contestant
submitted a reply brief on August 28, 2000. The Secretary
elected not to submit a reply brief. For the reasons set forth
below I find that the Secretary's interpretation of the standard
is entitled to deference, but, due process considerations
preclude enforcement of that interpretation against Doe Run here.
The Evidence - Findings of Fact
The relevant facts are not in dispute. Doe Run operates
eight underground lead, zinc and copper mines, including the
three mines at which the subject citations were issued, Buick,
Brushy Creek and Viburnum No. 29. The subject mines extract ore
from a deposit known as the viburnum trend, which runs in a
north-south direction. While the ore deposit is essentially
horizontal, it angles slightly downward as it proceeds south, is
somewhat irregular in elevation and varies considerably in
thickness. The mines are accessed through shafts. The Buick and
Brushy Creek mines have separate production and man shafts and
the Viburnum No. 29 Mine has a combined production and man shaft.
The Buick and Brushy Creek mines have separate production and
haulage levels off of each shaft and the No. 29 mine has only a
production level. The production and man shafts, separate escape
shafts and connecting mines provide avenues of egress to the
surface from the production level of each mine. There is no
dispute that, in general, there are at least two separate
escapeways from the production level of each of the mines.[1]
The areas at issue here are discreet locations where Doe Run
uses what is called "multiple pass mining" to extract ore when
the thickness of a deposit substantially exceeds the height of
the normal 16-20 foot high drift of the production level. After
mining the ore at the production level, Doe Run may make a cut
below the production level, an "undercut", or above the
production level, an "overcut." An undercut is made by cutting a
drift at a downward angle from the production drift and then
horizontally into the ore body underneath the production drift.
The material between the floor of the production drift and the
ceiling of the undercut is called a "sill" and its thickness
generally ranges from 15 to 30 feet, occasionally up to 50 or 60
feet. Overcuts are made in the same fashion by angling a drift
up from the production drift. Doe Run also accesses other parts
of the ore body directly horizontal to the production drifts by
cutting a separate drift to such areas, which will be referred to
as "side-cuts". When these three types of additional cuts reach
the ore body and extraction of the ore begins, they all have one
significant characteristic in common. The work areas are
accessed only by a single passageway or drift. The distance from
the top of the undercut incline to the working face was 250 feet
in the Buick Mine and 1,000 feet in the Viburnum No. 29 Mine. No
specific distances were specified in the citations of the
undercuts at the Brushy Creek Mine. The lengths of single
entrances to "side-cuts" ranged up to 2,000 feet, and there
appear to be active workings at the southernmost end of the
production level of the Brushy Creek Mine that are accessed by a
single passageway of a comparable distance. The map of the Buick
Mine also depicts now-inactive areas at the production level that
were accessed by a single passageway several thousand feet long.
Multiple pass mining has become prevalent over the past 6-8
years. The previous method involved accessing the ore body near
its top and mining downward in benches, eventually creating a
void of considerable height, e.g. 50-60 feet. Problems with
scaling that high a roof and drilling pillars for removal
rendered that method, in the opinion of Doe Run's managers, more
dangerous and less efficient than the multiple pass method. That
testimony was not contradicted by the Secretary.
The drifts leading to work areas in undercuts, overcuts and
side-cuts serve as the sole means of ingress and egress for
miners and equipment working in those areas. The work areas are
ventilated, at least initially, by use of a fan and vent bag
system, essentially a fabric tube through which air is blown from
the main production area. Various types of rubber tired, diesel
powered equipment access the work area through the drifts to
drill, blast and remove the ore. Each piece of diesel equipment
is equipped with two fire extinguishers and possibly a fire
suppression system. Potential hazards that could render the
drifts unusable as an escapeway, and which would also curtail
ventilation, were identified as equipment fires or ground falls.
There was one known fire in the mines, involving a truck, that
occurred around 1987 or 1988. There was no evidence introduced
as to the likelihood of a ground fall or any such past
occurrences in the working areas of the mines.[2]
Where the secondary cut becomes extensive, the fan and vent
bag system of ventilation eventually becomes inadequate and
additional ventilation may be provided by cutting a shaft through
the sill from the production drift. Such shafts could provide an
additional avenue of egress from undercuts and overcuts, if a
ladder was installed in the shaft. Doe Run's witnesses testified
that it would take two to three days to cut such a shaft through
a sill up to 30 feet thick, if no significant problems were
encountered, and that a ladder would cost approximately $1,500.00
to $3,000.00. There were no such shafts cut in the cited areas
because ventilation through the access drift was then adequate.
The cutting of such a shaft and installation of a ladder would
have been feasible in the cited areas in the Viburnum and Brushy
Creek mines.
However, it was not feasible in the area cited in the Buick
mine, the "area 1 pillar undercut." Where high grade ore is
encountered, Doe Run typically extracts the pillars at the main
production drift. Where the ore body is less than 150 feet wide,
the pillars can simply be removed through the production drift.
If wider, however, not all of the pillars can be removed in that
manner. Additional roof support is provided by backfilling the
mined "rooms" adjoining two or more rows of pillars with rock and
similar materials mixed with cement. The pillars that are
"trapped" in the backfill are then removed by making an
"undercut" below them and drilling and blasting them down into
the undercut, where the ore is removed by remote controlled
loaders. Once pillars are removed, miners are prohibited from
entering the area and cutting a ventilation/escapeway shaft from
the production drift to the undercut is not feasible. Some
pillars had been removed, and others entrapped, at the production
level above the "area 1 pillar undercut" in the Buick Mine,
prohibiting installation of a ventilation/escapeway shaft through
the sill.
Doe Run had used this mining method for several years prior
to the issuance of the citations. During that time, MSHA had
conducted mandated quarterly inspections of the mines and the
"undercut" areas currently in question, which have existed for as
many as four years and possibly longer. No citations were issued
for violating the two escapeway standard and the propriety of the
undercuts was not otherwise questioned.
Doyle D. Fink became manager of MSHA's South Central
District in 1995. Because of his concerns about important safety
requirements he directed a review of escape and evacuation and
ventilation plans of the mines in the District.[3] That review
brought to his attention that numerous work areas in Doe Run's
mines were accessed only by a single drift. As part of this
special review project, he directed that inspections be made.
MSHA inspector Robert Seelke, an experienced MSHA inspector who
had inspected Doe Run's mines during the 13 years he had been
assigned to the South Central District, inspected the mines
beginning in July of 1999. After reviewing the results of his
inspections, the information gathered from the review of the
escape and evacuation and ventilation plans and discussions with
mine personnel, MSHA determined to issue citations for violations
of 30 C.F.R.� 57.11050(a), the standard requiring two escapeways
in these metal, non-metal mines. A total of 17 citations were
issued in September of 1999, citing locations at six of the mines
for purported violations of the standard, which provides:
� 57.11050 Escapeways and refuges.
(a) Every mine shall have two or more separate,
properly maintained escapeways to the surface from the
lowest levels which are so positioned that damage to
one shall not lessen the effectiveness of the others.
A method of refuge shall be provided while a second
opening to the surface is being developed. A second
escapeway is recommended, but not required, during
exploration or development of an ore body. (emphasis
supplied)
**FOOTNOTES**
[1]: Doe Run provides other safety measures for miners who
may encounter difficulty exiting a work area. Rescue chambers
are provided in certain areas and an emergency hoist with an
"escape bullet" is available to remove miners through ventilation
bore holes.
[2]: There was testimony that there had been roof falls in
Doe Run's mines, but the only area specified was where pillars
had been removed and no miner was allowed to enter.
[3]: MSHA either had these documents on file, or could
readily obtain them.
See, 30 C.F.R. �� 57.8520, 57.11053.
Mr. Fink's interpretation of the standard was that it
required two escapeways from each work area in the mines.[4]
Consequently, citations were issued for all of the areas entered
by a single drift -- undercuts, overcuts and side-cuts. The
wording of the citations, however, tracked Mr. Fink's
interpretation of the standard, rather than the wording of the
standard itself. Citation No. 7884481, issued on September 9,
1999, for the Viburnum mine, was typical. It read:
The working area known as 78V21 and 78V6 was not
provided with at least 2 separate properly maintained
escape ways from that work area. This area is accessed
by a single entry for approx. 1000' to the working
faces. This condition creates the hazard of employees
being trapped in the mine should the only provided
escapeway become impassable. Rubber tired, diesel
powered mobile equipment is used in this area for
ground control work, drilling, loading of explosives
and to muck ore. Normally 5 or less employees work in
this area. (emphasis supplied)
This citation was modified on September 16, 1999, to specify
a violation of � 11050(b), which requires refuges in certain
situations. Doe Run contested the citations, as modified. After
discussions between MSHA and the Secretary's Solicitor's Office,
the citation was modified again on December 3, 1999, to specify
the applicable standard as � 11050(a), and the highlighted
wording was changed to conform to the wording of the standard.
The first sentence of Citation No. 7884481 now reads: "The areas
known as 78V21 and 78V6 were not provided with at least 2
separate properly maintained escapeways to the surface from this
lowest level." Similar modifications were made to the other
three citations.[5] The citations of the 13 areas that did not
involve undercuts were vacated, apparently in recognition that
they could not be considered "lowest levels" of the mines.
The ultimate issue in these cases is whether the "undercut"
areas addressed by the citations constitute "lowest levels" of
the mines within the meaning of � 57.11050(a). The Secretary's
interpretation of the standard, as applied here, has admittedly
not been applied in the past at any of Doe Run's mines and was
developed during litigation of these and the related contest
proceedings. While the other areas cited, "overcuts" and "side-
cuts", pose virtually the same hazards as these "undercuts", the
Secretary has tacitly conceded that there is no viable argument
that those areas fall within any reasonable definition of "lowest
levels" by vacating the subject citations.[6]
The parties introduced into evidence several definitions of
the word "level" and related terms of significance in mining
operations. Both parties rely on parts of the definition of the
term "level" contained in the U.S. Bureau of Mines, A Dictionary
of Mining, Mineral and Related Terms 638 (1968 ed.)
("Dictionary"), which provides, in pertinent part:
level a. A main underground roadway or passage driven
along the level course to afford access to the
stopes[[7]] or workings and to provide ventilation and
haulageways for the removal of coal or ore. * * * b.
Mines are customarily worked from shafts through
horizontal passages or drifts called levels. These are
commonly spaced at regular intervals in depth and are
either numbered from the surface in regular order or
designated by their actual elevation below the top of a
shaft. * * * c. In pitch mining, such as anthracite,
there may be a number of levels driven from the same
shaft, each being known by its depth from the surface
or by the name of the bed or seam in which it is
driven. * * * e. Applied to seams which run like
floors in an office building. Under and above the seam
lie the rock strata. * * * j. All openings at each of
the different horizons from which the ore body is
opened up and mining is started. * * *
Doe Run additionally relies on a definition found in Society
of Mining Engineers, Underground Mining Methods Handbook 88 (1982
ed.) which provides:
Level: A level is a system of horizontal underground
workings that are connected to the shaft. A level
forms the basis for excavation of the ore above or
below.
**FOOTNOTES**
[4]: Contrast the wording of the escapeway standard for
metal and non-metal mines with the comparable standards
applicable to coal mines which require that separate escapeways
be provided "from each working section" of the mine. 30 C.F.R.
�� 75.380(b)(1) and 75.381(b).
[5]: Citation No. 7884492 cited an undercut at the Buick
Mine and read, after modification: "The area known as area 1
pillar undercut was not provided with at least 2 separate
properly maintained escapeways to the surface from this lowest
level." Citation No. 7884505 cited an undercut at the Brushy
Creek Mine and read, after modification: "The area known as 76
bottom was not provided with at least 2 separate properly
maintained escapeways to the surface from this lowest level."
Citation No. 7884506 also cited an undercut at the Brushy Creek
Mine and read, after modification: "The area known as 9 undercut
was not provided with at least 2 separate properly maintained
escapeways to the surface from this lowest level."
[6]: Undercuts could pose an additional hazard in "wet"
areas, where water accumulation could drain into the lower
elevations. There was one such area involved here, but the
additional hazard was minimal and was described as posing a
significant flooding problem if a pump would be inoperable for
two weeks.
[7]: The term "stoping" was defined, in pertinent part, as:
"The act of excavating ore, either above or below a level, in a
series of steps. In its broadest sense stoping means the act of
excavating ore by means of a series of horizontal, vertical, or
inclined workings in veins or large, irregular bodies of ore, or
by rooms in flat deposits. * * * .
A "Safety Rule Book" developed by ASARCO and used by Doe
Run, defined "levels" as "worked or working areas of a mine off
the shaft."
Witnesses called by the parties relied on various parts of
these definitions in testifying that the undercut areas are - or
are not - "levels" or "lowest levels" within the meaning of the
standard. The Secretary places particular emphasis on the
Dictionary's, subpart j, which reads: "All openings at each of
the different horizons from which the ore body is opened up and
mining is started." Doe Run emphasizes those portions of the
various definitions that purport to require that each level be
separately connected to a shaft and the portion of the Dictionary
definition that refers to stopes as evidencing that undercuts and
overcuts are simply workings accessing the ore deposit below or
above the single level of the mines. The Secretary counters that
levels do not need to be connected to a shaft, noting that there
are levels in "adit" mines, which are mines accessed through a
horizontal portal or tunnel and have no shafts. She also points
out that the undercuts are indirectly connected to a shaft,
albeit not separately from the production level.[8]
The Secretary also relies upon an exhibit that apparently
originated somewhere in Doe Run's operations that sets forth an
explanation of the color scheme used on various mine maps to show
workings at different elevations and refers to them as "levels."
I place no significance on that exhibit, however, because its
relationship to any of the mines at issue here was never
established and because there is no evidence that whoever
prepared the document intended to use the terms "level" or
"levels" other than as a general reference to elevation or with
even the remotest relationship to the use of the term "lowest
levels" in the standard.
Doe Run argues that even if the "undercuts" are determined
to be levels, that they are not the lowest levels of the mines
because portions of the production and/or haulage levels at each
of the mines are lower in elevation than the cited areas. For
example, the lowest elevation of the floor of the cited area in
the Viburnum mine was 482 feet above sea level while the floor
elevation of the main level off the shaft was 446 feet above sea
level, some 36 feet lower in elevation. Such relative positions
can occur because, as noted previously, the ore body is irregular
in thickness and is not absolutely horizontal. The Secretary's
witnesses testified that the term "lowest levels" is defined
primarily in functional terms and has little to do with actual
elevation.
**FOOTNOTES**
[8]: The Secretary also argues that since the incline down
to an undercut can be referred to as a "ramp" that the undercut
is a separate level because the Dictionary defines "ramp" as an
"incline connecting two levels." I reject that argument because
there is no indication that the use of the word "levels" in that
definition has any relationship to the Dictionary's definition of
"level." In fact, the portion of the definition relied upon is
the last of a series of definitions which have nothing to do with
the term "level" and it appears to be referring to "levels" in
the most general sense.
Conclusions of Law
As noted above, the ultimate issue in these cases is whether
the cited "undercut" areas are "lowest levels" of the mines
within the meaning of the safety and health standard, 30 C.F.R.
� 57.11051(a). The legal framework for resolving that issue
requires determining whether the regulation is ambiguous, if so,
whether the Secretary's interpretation can be afforded deference,
and finally, whether Doe Run received fair notice of the
interpretation it was cited for violating.
The deference portion of the analysis was described by the
Commission in Island Creek Coal Co., 20 FMSHRC 14, 18-19 (January
1998):
Where the language of a regulatory provision is
clear, the terms of that provision must be enforced as
they are written unless the regulator clearly intended
the words to have a different meaning or unless such a
meaning would lead to absurd results. Dyer v. United
States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citations
omitted). See also Utah Power & Light Co., 11 FMSHRC
1926, 1930 (October 1989) (citations omitted);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (August
1993). If, however, a standard is ambiguous, courts
have deferred to the Secretary's reasonable
interpretation of the regulation. See Energy West
Mining Co. v . FMSHRC, 40 F.3rd 457, 463 (D.C.Cir.
1994). Accord Secretary of Labor v. Western Fuels-
Utah, Inc., 900 F.2d 318, 321 (D.C.Cir. 1990)
("agency's interpretation . . . is `of controlling
weight unless it is plainly erroneous or inconsistent
with the regulation'") (quoting Bowles v. Seminole Rock
Co.,
325 U.S. 410, 414 (1945) (other citations omitted)).
The Secretary's interpretation of a regulation is
reasonable where it is "logically consistent with the
language of the regulation [] and . . . serves a
permissible regulatory function." General Electric Co
v. EPA, 53 F.3d 1324, 1327 (D.C.Cir. 1995) (citation
omitted). The Commission's review, like the courts',
involves an examination of whether the Secretary's
interpretation is reasonable. Energy West, 40 F.3d at
463 (citing Secretary of Labor on behalf of Bushnell v.
Cannelton Indus., Inc.,
867 F.2d 1432, 1439 (D.C.Cir. 1989)). See also
Consolidation Coal Co.,
14 FMSHRC 956, 969 (June 1992) (examining whether
Secretary's interpretation was reasonable).
The Secretary argues that her interpretation of the
regulation is entitled to deference in that it is not plainly
erroneous or inconsistent with the regulatory language and
furthers the purposes of the Act. Doe Run argues, alternatively,
that the regulation is not ambiguous and that the Secretary's
interpretation is not reasonable and has not been consistently
applied. Doe Run also argues that due process precludes
application of the Secretary's interpretation in these cases
because it was not fairly warned of the "new" interpretation
applied here. The Secretary, as previously noted, elected not to
file a reply brief and has not directly addressed Doe Run's due
process argument.
Ambiguity
The term "lowest levels" is not defined in either the Act or
the regulations. In light of the various definitions introduced
into evidence and the parties respective witnesses' opinions as
to whether these "undercuts" were a separate "level" of the mines
and whether they were "lowest levels" within the meaning of the
regulation, I have little trouble concluding that the regulation
is ambiguous when applied to these undercuts. "As the Court
stated in Boston & Maine, [503 U.S. 407 (1992)] `[f]ew phrases in
a complex scheme of regulation are so clear as to be beyond the
need for interpretation when applied in a real context.'" Island
Creek Coal Co., supra, 20 FMSHRC at 19. Ambiguity exists when a
regulation is capable of being understood by reasonably well-
informed persons in two or more different senses. Id.
The Secretary's and Doe Run's witnesses, each of whom easily
qualified as reasonably well-informed persons, advanced
diametrically opposed interpretations of the term "lowest levels"
as applied to these undercuts. Moreover, as discussed more fully
below, I find that those respective interpretations were
reasonable and were formed by reasonably prudent persons familiar
with the mining industry and the protective purposes of the
standard. It appears, both from the respective definitions and
the limited litigation history of the provision, that the term
"level" in the mining context includes physical and functional
components. See Savage Zinc, Inc., 17 FMSHRC 279 (February
1995); Magma Copper Co., 16 FMSHRC 327 (February 1994).
Application of the term "lowest levels" to the "real world" of
the undercuts cited in these cases demands interpretation of the
term which is highly ambiguous in this context. Doe Run's
argument that the regulation is not ambiguous in this context
because the "reasonably prudent person" could only conclude that
the undercuts were not lowest levels within the meaning of the
regulation must be rejected.
The Secretary's Interpretation - Deference
It is well-established that the Secretary's interpretation
of her own regulations in the complex scheme of mine health and
safety is entitled to a high level of deference and must be
accepted if it is logically consistent with the language of the
regulation and serves a permissible regulatory function. Kerr-
McGee Coal Corp. v. FMSHRC, 40 F.3d 1257, 121261-62 (D.C.Cir.
1994), cert. denied, 115 S.Ct. 2611 (1995); Island Creek Coal
Co., supra, and cases cited therein. Doe Run clearly faces an
uphill battle in seeking to avoid the Secretary's interpretation
of the regulation. As described in General Electric, supra, 53
F.3d at 1327:
In adhering to this policy [of deference], we
occasionally defer to "permissible" regulatory
interpretations that diverge significantly from what a
first-time reader of the regulations might conclude was
the "best" interpretation of their language. Cf.
American Fed. Gov't Employees v. FLRA, 778 F.2d 850,
856 (D.C.Cir. 1985) ("As a court of review . . . we are
not positioned to choose from plausible readings the
interpretation we think best." (internal punctuation
and citation omitted)). We may defer where the
agency's reading of the statute would not be obvious to
"the most astute reader." Rollins,[[9]] 937 F.2d at
652. And even where the petitioner advances a more
plausible reading of the regulations than that offered
by the agency, it is "the agency's choice [that]
receives substantial deference." Id.
As noted above, I find the respective interpretations of the
term "lowest levels" offered by the parties to be reasonable.
Doe Run's reliance on aspects of the various definitions to urge
that the undercuts and overcuts are not separate levels but
merely in the nature of stopes where excavation of the ore above
or below the production level occurred, is a reasonable
interpretation of the regulation.[10] However, the Secretary's
reliance upon other aspects of the Dictionary's definitions of
the term "level" as including "[a]ll openings at each of the
different horizons from which the ore body is opened up and
mining is started" is also reasonable. The undercuts can
certainly be found to reasonably meet the functional aspects of
the definitions of the term "level" because they are passages
driven along an essentially level course affording access to the
workings and providing ventilation and haulageways for the
removal of ore. The Secretary's interpretation of the term
"lowest levels" as not being strictly related to elevation, but
more of a relative concept with respect to other levels, is also
reasonable. The ore body being mined here was irregular, both in
thickness and in elevation. It also had a general slope,
downward from north to south. The floors of the undercuts at
issue here were not the lowest points in the working areas of the
mines. Depending upon the layout and topography of a particular
mine, interpreting the term "lowest levels" as referring only to
the level, a portion of which happened to be the lowest in
elevation, could completely eviscerate the standard. Although
the parties do not address it, the use of the plural rather than
the singular form of the word level, lends further support to the
Secretary's interpretation of the standard as applied here and
undercuts Doe Run's elevation argument.
There is little question but that the Secretary's
interpretation of the regulation is more consistent with the
safety promoting purposes of the Act. Requiring two separate
escapeways from these undercuts would enhance the safety of
miners working in those areas, though the degree to which safety
would be enhanced is unclear because of the limited evidence
presented on the actual hazards experienced in these mines. Doe
Run argues that any safety enhancement attributable to the
application of the Secretary's interpretation would be outweighed
by the safety risks described with respect to the earlier mining
method. That argument misses the mark. It is highly unlikely
that enforcement of the Secretary's interpretation would prompt
an operator to use the previous method. In many instances,
compliance could be achieved by cutting ventilation/escapeway
shafts through the relatively thin sills. An operator might also
continue to use multiple pass mining, driving the production
drift into the lower elevation of an ore body and mine the ore
above by using an overcut, or a series of overcuts. As noted
above, the Secretary has at least tacitly conceded that the
standard cannot reasonably be interpreted to apply to overcuts.
Doe Run also argues that the Secretary's interpretation is
not entitled to deference here because it was "newly minted
during this case," was not announced in any policy memorandum or
embodied in any agency document, is inconsistent with other
interpretations and has not been consistently applied. However,
interpretations first put forward in the course of administrative
litigation are, nevertheless, entitled to deference if they
"reflect the agency's fair and considered judgment on the matter
in question." Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301,
1304 (D.C.Cir. 2000) (quoting Auer v. Robbins, 519 U.S. 452, 462
(1997)) and cases cited therein.
The interpretation advanced here appears to reflect the
agency's fair and considered judgment on the matter in question.
The testimony of the Secretary's witnesses described the process
by which the enforcement action proceeded to this point. The
original interpretation was applied to all single access areas,
and used wording ("from that work area") inconsistent with the
applicable standard. For this administrative litigation,
however, that position was reexamined in meetings involving
MSHA's administrators and members of the Office of the Solicitor.
The result was formulation of an agency interpretation, acceded
to by the administrators who had developed the original
interpretation.[11] That interpretation was consistently applied
to the Secretary's enforcement action and thirteen of the
seventeen citations were vacated.
The interpretation relied on here is not a rationalization
developed on appeal after administrative litigation had
concluded. Contrary to Doe Run's argument, I do not find the
Secretary's interpretation substantively inconsistent with
interpretations urged by the Secretary in other cases. It is
also not inconsistent with any other agency regulations, policy
directives or other written materials. While there was
conflicting evidence as to whether single access areas existed in
other mines, some of which appear to be located within the same
MSHA district as Doe Run's mines, this appears to be the first
instance in which the Secretary has determined to initiate
enforcement action with respect to single access undercuts.
Under the circumstances presented here, the Secretary's
interpretation is entitled to deference and Doe Run's arguments
to the contrary are rejected. See National Wildlife Federation
v. Browner, 127 F.3rd 1126, 1129-30 (D.C.Cir. 1997).[12] Doe Run
also contends that the considerations discussed above dictate
that the Secretary's interpretation is entitled to less deference
than a more established or publicly promulgated pronouncement.
See A & W Smelter and Refiners, Inc. v. Clinton, 146 F.3rd 1107
(9th Cir. 1998). While I disagree, even under a reduced
deference standard I would sustain the Secretary's
interpretation.
Due Process -- Fair Notice
Where an agency imposes a fine based on its
interpretation, a separate inquiry may arise concerning
whether the respondent has received "fair notice" of
the interpretation it was fined for violating. Energy
West Mining Co.,
17 FMSHRC 1313, 1317-18 (August 1995). "[D]ue process
. . . prevents . . . deference from validating the
application of a regulation that fails to give fair
warning of the conduct it prohibits or requires."
Gates & Fox Co. v. OSHRC,
790 F.2d 154, 156 (D.C.Cir. 1986). An agency's
interpretation may be "permissible" but nevertheless
fail to provide the notice required under this
principle of administrative law to support imposition
of a civil sanction. General Electric, 53 F.3d at
1333-34. The Commission has not required that the
operator receive actual notice of the Secretary's
interpretation. Instead, the Commission uses an
objective test, i.e., "whether a reasonably prudent
person familiar with the mining industry and the
protective purposes of the standard would have
recognized the specific prohibition or requirement of
the standard." Ideal Cement Co., 12 FMSHRC 2409, 2416
(November 1990).
Island Creek Coal Co., supra, 20 FMSHRC at 24.
The issues raised by Doe Run on deference have considerably
more force in its due process argument. Doe Run's interpretation
of the standard as applied to these undercuts is at least as
reasonable as the Secretary's. Doe Run had used this method of
mining for several years and its interpretation of the standard
had never been called into question by the Secretary's MSHA
inspectors. Doe Run was aware of other mines that had used this
method, also with the apparent acquiescence of MSHA. The
Secretary's formulation of her interpretation included at least
two prior iterations and was ultimately developed during the
course of these proceedings. I have no trouble concluding that a
reasonably prudent person familiar with the mining industry and
the protective purposes of the Act would not have recognized the
specific prohibition of the
**FOOTNOTES**
[9]: Rollins Envtl. Servs., Inc. v. EPA, 937 F.2d 649
(D.C.Cir. 1991).
[10]: Doe Run's argument that a "level" must be
independently connected to a shaft, is unpersuasive. It would
appear that all mines have at least one level, including, "adit"
mines, which are accessed through a tunnel and do not have
shafts. See Savage Zinc Co., supra.
[11]: Doyle D. Fink, manager of MSHA's South Central
District, in which these mines were located, testified that in
his opinion the same safety considerations applied to all single
access areas and that there should be two escapeways from such
areas. He acknowledged, however, that the standard treated such
areas differently and under the interpretation advanced by the
Secretary it could be applied only to the undercut areas.
[12]: While the Secretary's interpretation is entitled to
deference, considerations of due process preclude its application
here. It is, therefore, unnecessary to address Doe Run's
contention that the area 1 pillar undercut at the Buick Mine was
an area of development, for which the standard does not require
two escapeways.
regulation embodied in the Secretary's interpretation of the
standard as applied to these undercuts. The Secretary's
determination not to respond to Doe Run's due process argument
may well have been prompted by the weight of the evidence in
support of its argument.
Principles of due process preclude application of the
Secretary's interpretation to these undercuts.
Order
The two escapeway standard, as applied to the four
"undercuts" at issue here, is ambiguous. The Secretary's
interpretation of the standard, advanced for the first time in
this litigation, reflects the agency's considered judgement, is
reasonable and consistent with the protective purposes of the Act
and is entitled to deference. Because Doe Run did not have fair
warning of the Secretary's interpretation, however, it cannot be
enforced in these instances.[13]
Accordingly, Citations numbered 7884481, 7884492, 7884505
and 7884506, are hereby Vacated.
Michael E. Zielinski
Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll Professional Corporation,
One Oxford Centre, 301 Grant Street, 20th Floor, Pittsburgh, PA
15219-1410 (Certified Mail)
Kristi Floyd, Esq., Office of the Solicitor, U. S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified
Mail)
/mh
**FOOTNOTES**
[13]: There is little question but that all of the
working areas accessible only by a single drift present safety
concerns. The Secretary's interpretation of the two escapeway
standard permitted her to address only 4 of the 17 cited areas.
The precise degree of risk presented, however, remains largely
unquantified. Formal rulemaking would appear to be the preferred
approach to address those concerns.