<DOC>
[DOCID: f:lk2000111.wais]

 
AMERICAN COAL COMPANY
May 9, 2001
LAKE 2000-111-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                           May 9, 2001


AMERICAN COAL COMPANY,          : CONTEST PROCEEDINGS
               Contestant       :
          v.                    : Docket No. LAKE 2000-111-R
                                : Citation No. 7572545;
                                :   6/26/2000
SECRETARY OF LABOR,             :
    MINE SAFETY AND HEALTH      : Docket No. LAKE  2000-112-R
    ADMINISTRATION (MSHA),      : Citation No. 7572546;
                                :   6/26/2000
               Respondent       :
                                : Galatia Mine
                                : Mine ID 11-02752

      ORDER GRANTING SECRETARY'S MOTION FOR SUMMARY DECISION

     These cases are before me on Notices of Contest filed by
American Coal Company under section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the "Act"). 30 U.S.C. � 815(d). 
American Coal contests  the  issuance of two citations by an 
MSHA inspector charging that diesel  engines  used  in  its
underground coal mine did not comply with regulations governing
approval for such use.  The parties  have stipulated to certain
facts and have moved for summary decision, pursuant to 
Commission Procedural  Rule  67.  29 C.F.R. � 2700.67.  The  
Secretary  has supported her motion with additional factual 
assertions contained in affidavits and related materials.  I 
find that there exists no genuine issue as to any  material  
fact and that the Secretary is entitled to judgment as a matter
of law.

                              Facts

     The parties stipulated to the following facts:

     1. Contestant, American Coal Company, operates the Galatia
Mine,  a  large  underground coal mine located near Harrisburg,
Illinois.

     2. The  Galatia  Mine utilizes  diesel  powered  personnel
carriers.

     3. The Mine Safety and Health Administration published a
final rule on October 25, 1996, establishing new safety 
standards (30  C.F.R.  ��  75.1900-1916) and new approval  
regulations  for diesel  engines  and   equipment  (30  C.F.R.  
Part  7)  used  in underground coal mines.

     4. Part 7, Subpart  E (30  C.F.R.  ��  7.81 through 7.92)
establishes  approval requirements for diesel powered engines  
in areas where permissible equipment is required (permissible 
diesel equipment), and  for  diesel  powered engines used 
in areas where permissible  equipment  is not required  
(non-permissible  diesel powered equipment).

     5. The engines at issue  in  [these cases] are used in 
non-permissible diesel powered equipment.

     6. As of November 25, 1999, non-permissible diesel powered
equipment   used   in   underground  coal  mines  must meet the
requirements of 30 C.F.R. � 75.1909.

     7. Under 30 C.F.R.  � 75.1909(a),  non-permissible diesel
powered  equipment  such  as that which is the subject of the
citations  at issue here, must be equipped with engines  
approved under subpart  E  of 30 C.F.R. Part 7; this includes 
the approval marking requirement at 30 C.F.R. � 7.90.

     8. The engines  at issue in this case were manufactured 
and placed in use before the  November  25, 1999 effective 
date for � 75.1909(a).

     9. The engines at issue in [these  cases] were manufactured
by American Isuzu Motors, Inc.

     10. American Isuzu Motors, Inc. applied  for and received
MSHA approval under Part 7  Subpart E for diesel engine model
numbers Isuzu QD 100-301 and Isuzu C240MA (QD60).[1]

     11. The American Coal Company  and Galatia Mine do not 
have access to the approval documentation submitted by American
Isuzu Motors, Inc. on which the MSHA approval under Part  7  
Subpart E was based.

     12. Extensive  dialogue  took  place  betwee  local MSHA
representatives and Galatia mine management regarding the 
quality of Isuzu's markings, the cost of obtaining the approval 
markings from Isuzu, and the development of an in house approval 
marking.

     13. Marvin Nichols, MSHA Administrator for Coal Mine Safety
and Health, issued a  "Procedure  Instruction  Letter" (PIL) on
April  1, 2000, which stated that all approval markings must be
provided by the engine manufacturer. This PIL also addressed the
poor quality  of  the  approval  marking being provided and the
actions being taken to rectify this situation.


**FOOTNOTES**

     [1]: MSHA  approved  Isuzu's  application  for engine  model
number  QD  100-301 (also known as 4DB1PW) on January  15,  1998.
The application  for  engine  model  number C240MA (also known as
C240PW) was approved on April 28, 1999.


     14.   The  American  Coal  Company did  not  obtain  Part  7
approval   markings   from  Isuzu.   Instead,   the   maintenance
department at the Galatia  Mine purchased and utilized a labeling
machine to produce what it believed  to  be  a  suitable tag, and
marked its Isuzu diesel engines with tags it produced  with  this
labeling machine.

     15.   On  June  6,  2000,  MSHA issued Citation No. 7572545,
alleging that the Contestant's  Isuzu  4BD1  PW  diesel engine in
the  MT13  diesel mantrip 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. � 7.90 was installed
but it had not been supplied by the engine manufacturer.

     16.  The serial number of the diesel  engine  which  was the
subject of Citation No. 7572545 is 201526.

     17.   On  June  26,  2000, MSHA issued Citation No. 7572546,
alleging that the Contestant's  Isuzu C240PW diesel engine in the
PV  55  diesel personnel carrier  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. � 7.90 was
installed   but   it   had  not  been  supplied  by  the   engine
manufacturer.

     18.  The serial number  of  the  diesel engine which was the
subject of Citation No. 7572546 is 814472.

     The following additional facts are established by Affidavits
submitted by the Secretary.

     Isuzu's  4DB1PW  diesel engine has been  manufactured  since
before 1980 and continued  in  production until 1998.  The C240PW
engine was first manufactured prior  to 1980 and has continued to
be produced to present.  Over time, changes  may  be  made in the
manufacture  of  a  particular  model engine, such as changes  in
parts   used,   settings   or  configuration   of   the   engine.
Consequently,  engines  with  the   same  model  number  are  not
necessarily identical.  For example,  during  the  years that the
4DB1PW engine was manufactured a change was made to the camshaft.
Some  engines  with  that model number have the type of  camshaft
upon which the MSHA approval  was  based.   Others  do not.  Only
engines that have been manufactured in accordance with the design
drawings and specifications submitted to MSHA can be approved and
so  marked  pursuant to the regulations.  For Isuzu to  determine
whether a particular  engine  was manufactured in accordance with
the design drawings and specifications upon which MSHA's approval
was based, it must compare the  serial  number of the engine with
records  it maintains of the design and specifications  to  which
that engine was manufactured.

     Accurate approval markings on diesel engines are critical to
MSHA's enforcement  of  health  and safety provisions designed to
protect  miners.   In  order  to determine  whether  a  mine  has
sufficient ventilation to dissipate  emissions of a diesel engine
used underground, an MSHA inspector must  rely  upon the engine's
approval   marking  as  establishing  that  it  was  manufactured
according to  the  design and specifications approved by MSHA and
that the ventilation rate specified on the marking is accurate.

     As noted above,  the  parties  have stipulated that American
Coal does not have access to the documentation submitted by Isuzu
in its approval application.  Nor does  it  appear  that American
Coal has access to Isuzu's records reflecting which engines  of a
particular model number were manufactured according to the design
drawings  and specifications for which the approval was obtained.
The only way  that  American  Coal  could  determine  whether its
engines  had been approved was to apply to Isuzu for an  approval
marking.   No  application  was  ever  submitted  to Isuzu for an
approval plate for either of the engines at issue in  these cases
and no such approval plate was ever issued by Isuzu.

     American  Coal  was  able  to ascertain, from public records
maintained by MSHA, that Isuzu diesel engines with the same model
number as its engines had been approved  by  MSHA.  Consequently,
it  fabricated  its own approval marking and affixed  it  to  the
engines.  MSHA determined  that  the  approval  markings  did not
comply  with the regulatory requirement and the instant citations
were issued.   While  the  markings  included  the  categories of
information  required  by  the  regulation,  MSHA  enforced   its
interpretation  of  the regulation that the approval marking must
be supplied by the manufacturer,  and  in  the  absence of such a
marking,  the  engine  was  not approved, nor could it  have  any
confidence that the engine had been approved.

                        Conclusions of Law

     The ultimate issue in these  cases  is  whether the approval
marking required by 30 C.F.R.
� 7.90 must be issued by the engine manufacturer.   American Coal
argues  that  the clear wording of the regulation[2] contains  no
such requirement,  that  the  Secretary's  attempt to incorporate
such a requirement short of formal rulemaking  must fail and that
the identity of the entity that supplies the approval  marking is
"irrelevant"  and  "superfluous  to  the  need  addressed  by the
regulation."   The  Secretary  argues  that  the  intent  of  the
regulation, as determined from the regulatory scheme, is that the
marking  must  be   issued  by  the  manufacturer  and  that  her
interpretation of the  regulation  is entitled to deference.  The
legal framework for resolving the issues  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   (Oct.   1989)    (citations    omitted);
     Consolidation  Coal  Co.,  15  FMSHRC  1555, 1557 (Aug.
     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).

See  also,  Nolichuckey Sand Co., 22 FMSHRC 1057, 1059-61  (Sept.
2000).

Ambiguity

     The regulation  requires  that  each  approved diesel engine
bear  a  permanent  approval  marking showing the  MSHA  approval
number and other information.  American Coal correctly notes that
the clear wording � 7.90 contains no requirement that the marking
be  issued  by  the  manufacturer.   However,  neither  does  the
regulation clearly state  that  the  marking can be fabricated by
the engine's owner, a supplier, or any  other  person  or entity.
The  regulation  itself,    is  silent  as  to  the source of the
approval marking.

     The Secretary argues that the regulatory scheme discloses an
intent that the marking must be supplied by the manufacturer, and
that  Contestant's  interpretation  would eviscerate  the  entire
enforcement scheme to the detriment of  miners'  safety.   As the
Secretary  points  out,  MSHA  and  its predecessor agencies have
historically required that applications for approval of equipment
for  use in mines be submitted by the  manufacturer.   30  C.F.R.
Part 7  was  originally  promulgated  in  1988  to  establish the
application  procedure  and  requirements  for  MSHA approval  of
certain products for use in underground mines.  The  preamble  to
the final rule for 30 C.F.R. Parts 7 and 18, specified that:

     Once  MSHA  has approved a product, the manufacturer is
     authorized to  place an approval marking on the product
     that identifies  it as approved for use in under ground
     mines.   Use  of  the   MSHA   marking   obligates  the
     manufacturer  to  maintain the quality of the  product.
     The MSHA marking indicates to the mining community that
     the  product has been  manufactured  according  to  the
     drawings and specifications upon which the approval was
     based.

53 Fed. Reg. 23486 (June 22, 1988).

     Only the  manufacturer  can  apply to MSHA for approval of
a diesel engine.  30 C.F.R. � 7.2 defines applicant as: "An 
individual  or  organization that manufactures  or  controls  
the  assembly of a product  and  that applies  to  MSHA  for 
approval of that  product."   Approval  is defined as: "A 
document  issued  by  MSHA  which  states  that  a product   
has  met  the  requirements  of  this  part  and  which
authorizes an approval marking identifying the product 
approved." Id.

     Applications  for  approval  of diesel engines for use in
underground coal mines must include extensive information  on 
the engine's design and specifications as well as testing data. 
30 C.F.R. � 7.83.   Each  approved  product  is  required to 
have an approval marking and applicants are required to 
maintain records of the initial sale of each unit having an 
approval marking. Id.

� 7.6. Once approval is obtained, an applicant, referred to as
"the  approval  holder", is  responsible  for  future  quality
assurance and for making  the product available to MSHA for 
post-approval audit.  Id. �� 7.7 and 7.8.

     Approvals  are  restricted  to the  specific  design  and
specifications submitted by the manufacturer. For example, the
MSHA approval for the  Isuzu's  model  QD100-301 diesel engine
states:

     All engines of this type that are marketed  as approved
     under  30  C.F.R.,  Part  7,  must  be manufactured  in
     accordance with the drawings and specifications on file
     at  the  Mine  Safety  and  Health  Administration  and
     maintained in strict accordance with  the  instructions
     set forth in the engine maintenance and service manual.
     Any change in the design must be accepted in writing by
     the  Mine  Safety and Health Administration before  you
     are authorized to make any such change.

     While � 7.90  is  silent  as  to  the source of the approval
marking, the regulatory scheme envisions  that  the manufacturer,
the  approval-holder,  and  the  only  entity that can  determine
whether a particular diesel engine satisfies  the requirements of
the  MSHA  approval, must issue the approval marking.   Ambiguity
exists when  a  regulation  is  capable  of  being  understood by
reasonably well-informed persons in two or more different senses.
Island  Creek Coal Co., supra, 20 FMSHRC at 19.  The regulation's
silence creates  ambiguity  as  to  permissible  sources  for the
approval marking.

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.

     For   the   reasons   discussed   above,   the   Secretary's
interpretation of the regulation, i.e., that the approval marking
must be issued by the manufacturer, is reasonable.  There is also
little question but  that  the Secretary's interpretation is more
consistent with the safety promoting  purposes  of  the Act.  The
Secretary argues, forcefully, that allowing operators  or  others
to  fabricate  and  affix approval plates would virtually nullify
the Secretary's enforcement  efforts in a critical area of safety
and  health.  The operator cannot  determine  that  a  particular
engine  is  covered  by an MSHA approval because it has no way of
determining whether the  engine was manufactured according to the
design drawings and specifications  upon  which the MSHA approval
was based.  Only the manufacturer, the approval-holder,  can make
that determination.

     Even  though  American Coal could determine that engines  of
that model had been  approved, it could not determine whether its
engines  had  been  manufactured  according  to  the  design  and
specifications   upon   which    the   approval   was   obtained.
Consequently, it could not determine  whether its engines had, in
fact, been approved and an MSHA inspector attempting to determine
whether  a  mine  met  applicable  ventilation  requirements  for
dissipating the emissions of Contestant's  engines could not rely
upon the marking fabricated by Contestant.

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).

Island Creek Coal Co., supra, 20 FMSHRC at 24.

     American Coal does not, nor could it reasonably, assert that
it  was  not  afforded  sufficient  notice   of  the  Secretary's
interpretation  of the regulation prior to the  issuance  of  the
citations  here at  issue.   The  Secretary's  interpretation  is
consistent with  the  long-standing  approval  scheme  for mining
equipment,  which  contemplates  that  the  manufacturer, as  the
approval-holder, is authorized to place the approval  marking  on
the  engine.   Moreover,  American  Coal and other operators were
specifically put on notice of the Secretary's  interpretation  of
this  particular  regulation.   As  the parties stipulated, there
were extensive discussions between the  Secretary  and Contestant
during  which  the  requirement  that  the  approval  marking  be
obtained  from  the manufacturer was discussed.  The issuance  of
the Procedure Instruction  Letter,  on  April  1,  2000,  clearly
apprized  operators  of  the  Secretary's interpretation some two
months prior to the issuance of the citations.

     Based upon the foregoing, American Coal's motion for summary
decision is denied, the Secretary's  motion is granted, Citations
numbered  7572545 and 7572546 are affirmed  and  the  Notices  of
Contest are hereby Dismissed.


                              Michael E. Zielinski
                              Administrative Law Judge


Distribution:

Michael O.  McKown,  Esq.,  The  American Coal Co., 29525 Chagrin
Blvd., Suite 111, Pepper Pike, OH 44112 (Certified Mail)

Sheila Cronan, Esq., Office of the  Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)

/mh


**FOOTNOTES**

     [2]: � 7.90         Approval marking.

          Each 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.  The marking  shall  contain  the
     following information:
          (a)  Ventilation rate.
          (b)  Rated power.
          (c)  Rated speed.
          (d)  High idle.
          (e)  Maximum altitude before deration.
          (f)  Engine model number.