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[DOCID: f:lk2000102.wais]
FREEMAN UNITED COAL COMPANY
November 29, 2000
LAKE 2000-102-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
November 29, 2000
FREEMAN UNITED COAL COMPANY, : CONTEST PROCEEDINGS
Contestant : Docket No. LAKE 2000-102-R
: Citation No. 7584882; 6/22/2000
:
: Docket No. LAKE 2000-103-R
v. : Citation No. 7584883; 6/22/2000
:
: Docket No. LAKE 2000-104-R
: Citation No. 7584884; 6/22/2000
:
SECRETARY OF LABOR : Docket No. LAKE 2000-105-R
MINE SAFETY AND HEALTH : Citation No. 7584885; 6/22/2000
ADMINISTRATION, (MSHA), :
Respondent : Crown II Mine
: Mine ID 11-02236
SUMMARY DECISION
These cases are before me upon the Contests filed by Freeman
United Coal Company (Freeman United) pursuant to section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801,
et seq., the "Act," to challenge four citations issued by
the Secretary of Labor. On July 12, 2000, Freeman United filed a
motion for summary decision. The Secretary responded on July 31,
2000, and filed her own cross motion for summary decision. Oral
argument was held on September 15, 2000, and the parties
thereafter filed supplemental written argument.
Under Commission Rule 67, 29 C.F.R. � 2700.67, a motion for
summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories,
admissions, and affidavits, shows: (1) that there is no genuine
issue as to any material facts; and (2) that the moving party is
entitled to summary decision as a matter of law.
The citations at bar all allege violations of the standard
at 30 C.F.R. � 75.1909(a)(1). That standard provides as follows:
(a) Non permissible diesel-powered equipment,
except for the special category of equipment under �
75.1908(d), must be equipped with the following
features:
(1) An engine approved under subpart E of part 7
of this title equipped with an air filter sized in
accordance with the engine manufacturer's
recommendations, and an air filter service indicator
set in accordance with the engine manufacturer's
recommendations.
More particularly Citation No. 7584882, charges as follows:
The Isuzu QD60 diesel engine used in the Number
04003 Diesel Gator was not being maintained in
accordance with Subpart E of 30 C.F.R. Part 7. A
legible and permanent approval marking as required by
30 C.F.R. Part 7.90 was installed but had not been
supplied by the engine manufacturer.
Citations No. 7584883, 7584884 and 7584885, allege the same
violation but with respect to Isuzu 4BD1PW diesel engine used in
the 04031 Alpha personnel carrier, Isuzu 4BD1PW diesel engine
used in the 04032 Alpha personnel carrier and Isuzu QD60 diesel
engine used in the 03107 Taylor Atkinson personnel carrier,
respectively.
There is no dispute in this case that the cited diesel
powered equipment was non permissible within the meaning of the
cited standard and that therefore the cited diesel engines must
be approved in accordance with Subpart E of part 7. Under
Subpart E at Section 7.90 "[e]ach approved diesel engine shall be
identified by a legible and permanent approval marking inscribed
with the assigned MSHA approval number and securely attached to
the diesel engine."
At oral argument on September 15, 2000, the Secretary
clarified that she is alleging a violation in the citations at
bar only on the basis of her claim that the approval markings
required by Section 7.90 must be "supplied by the engine
manufacturer." (Tr. 5-6).[1] It is undisputed that the approval
markings utilized by Freeman United on the cited equipment were
supplied by Freeman United itself and not by the manufacturer.
Accordingly there is no dispute regarding the material facts.
In effect however the Secretary seeks to have this
Commission rewrite the cited standard to read as follows: "[e]ach
approved diesel engine shall be identified by a legible and
permanent approval marking supplied by the engine manufacturer
and inscribed with the assigned MSHA approval number and securely
attached to the diesel engine."
The Secretary argues in support of this regulatory rewrite
on the premise that the regulation's meaning is not plain and
that therefore deference should be given to her interpretation
citing Martin v. OSHRC, 499 U.S. 144, 148-149 (1991); Udall v.
Tallman, 380 U.S. 1, 16-17 (1965); Energy West Mining Co. v.
FMSHRC, 40 F.3d 457, 460-461 (D.C. Cir. 1994); Secretary of Labor
v. Cannelton Industries, Inc., 867 F.2d 1432, 1435 (D.C. Cir.
1989); and Emery Mining Corp. v. Secretary of Labor, 744 F.2d
1411, 1414-1415 (10th Cir. 1984). I find however that the premise
for Secretary's deference argument, i.e., that the meaning of
the regulation is not plain, does not exist. When the meaning
of a statutory or regulatory provision is plain, effect must be
given to its language. Chevron U.S.A. Inc. v. N.R.D.C., 467 U.S.
837, 843-45 (1984).
The Secretary also argues that a statute or regulation that
is intended to protect the health and safety of individuals, such
as the regulation at issue herein, must be interpreted in a broad
manner to actually achieve that goal citing Cannelton Industries,
867 F. 2d at 1435. Donovan v. Stafford Const. Co., 732 F. 2d
954, 959-960 (D.C. Cir. 1984); and Brennan v. OSHRC, 491 F. 2d
1340, 1344 (2nd Cir. 1974). This rule of construction is not
without limit however and is not a license to rewrite a clearly
worded regulation whose plain meaning cannot reasonably be
disputed.
Therefore, considering the plain language of Section 7.90,
there is nothing to preclude the use on the cited diesel engines
of approval markings supplied by Freeman United itself.
Accordingly there are no violations as alleged in the citations
at bar. Under the circumstances, Freeman United's Motion for
Summary Decision must be granted and the Secretary's Cross Motion
for Summary Decision must be denied.
ORDER
Citation Nos. 7584882, 7584883, 7584884 and 7584885 are
hereby vacated.
Gary Melick
Administrative Law Judge
Distribution:
Timothy M. Biddle, Esq., Edward Green, Esq., Crowell & Moring,
LLP, 1001 Pennsylvania Ave., N.W., Washington, D.C. 20004
(Certified Mail)
Sheila Cronan, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Certified Mail)
\mca
**FOOTNOTES**
[1]: Although the Secretary also claims, in her motion and
at oral argument, that the cited engines were also not otherwise
"approved" - - a claim that is disputed by the operator - - that
is accordingly not an issue now before me in the instant cases.