.
PLATEAU MINING CORPORATION
April 6, 2000
WEST 99-196
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
April 6, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-196
Petitioner : A.C. No. 42-02113-03539
:
v. : Willow Creek Mine
:
PLATEAU MINING CORPORATION, :
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Petitioner :
:
v. :
:
JOHN A. PESARSICK, employed by : Docket No. WEST 99-422
Plateau Mining Corp., : A.C. No. 42-02113-03546 A
Respondent :
:
JOHN D. TRACKEMAS, employed by : Docket No. WEST 99-423
Plateau Mining Corp., : A.C. No. 42-02113-03547 A
Respondent :
:
KELLY BURNHAM, employed by : Docket No. WEST 99-446
Plateau Mining Corp., : A.C. No. 42-02113-03545 A
Respondent :
ORDER GRANTING THE SECRETARY OF LABOR'S
MOTION FOR PARTIAL SUMMARY DECISION
These proceedings involve one citation issued by the
Secretary of Labor under section 104(d)(1) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C � 814(d)(1) alleging a
violation of 30 C.F.R. � 75.363(b).[1] The parties entered into
stipulations and asked that I determine whether Plateau Mining
Corporation ("Plateau") violated the safety standard based on the
stipulated facts. The parties state that whether a violation
occurred is basically a legal issue because the facts surrounding
the alleged violation are not disputed. I agree that the issue
presented by the parties can be resolved based on the
stipulations, the pleadings, and the arguments of the parties.
For the reasons set forth below, I find that the Secretary
established a violation. This order does not resolve these cases
because I do not make any findings or conclusions with respect to
the civil penalty criteria, the unwarrantable failure allegation,
or the allegation that the individual respondents knowingly
authorized, ordered, or carried out the violation.
I. CITATION, SAFETY STANDARD, AND STIPULATED FACTS
Citation No. 7625090, issued September 1, 1998, states, in
pertinent part:
The On-Shift Mine Examiner for the D-1 Long
Wall 001-0 MMU, Willow Creek Mine, Kelly
Burnham, Long Wall Foreman, on 8/26/1998,
during required On-Shift Examin[ations], did
not list all hazardous conditions incurred.
A methane/Coal Dust, and/or Hydrocarbon
ignition occurred at approximately 19:30
hours on the D-1 Long Wall 001-0 face. The
ignition is a hazardous condition. Hazardous
condition[s], or combination of hazards
existed to cause an ignition. At the end of
each shift hazardous conditions shall include
nature and location, and corrective action
taken. The ignition lasted approximately 45-
60 seconds, and extinguished by Shear's Fire
Suppression system, and 10 pound Fire
Extinguisher. The mine operator did not
immediately contact MSHA ....
Section 75.363 provides, in part, as follows:
Hazardous conditions; posting, correcting and
recording.
(a) Any hazardous conditions found by
the mine foreman or equivalent mine official,
assistant mine foreman or equivalent mine
official, or other certified persons
designated by the operator for the purposes
of conducting examinations under this subpart
D, shall be posted with a conspicuous danger
sign where anyone entering the areas would
pass. A hazardous condition shall be
corrected immediately or the area shall
remain posted until the hazardous condition
is corrected....
(b) A record shall be made of any
hazardous condition found. This record shall
be kept in a book maintained for this purpose
on the surface at the mine. The record shall
be made by the completion of the shift on
which the hazardous condition is found and
shall include the nature and location of the
hazardous condition and the corrective action
taken. This record shall not be required for
shifts when no hazardous conditions are found
or for hazardous conditions found during the
preshift or weekly examinations inasmuch as
these examinations have separate
recordkeeping requirements.
Subsections (c) and (d) set out detailed record keeping
requirements including who must make the record and who must
countersign the record. The parties entered into the following
stipulations, in pertinent part:
2. The parties are submitting these
stipulations with the intention of filing
cross motions for summary decision of whether
a violation existed with respect to Citation
No. 7625090. ... If it is found that a
violation existed, the issues of the
appropriate penalty for the operator and
whether Messrs. Pesarsick, Trackemas, and
Burnham committed knowing violations of the
cited standard, would remain.
3. [T]he Secretary alleges that the operator
failed to record in the on-shift book an
ignition which occurred at approximately
19:30 hours on the D-1 Longwall 001-0 fact on
August 26, 1998.
* * * *
5. The ignition lasted approximately 45-60
seconds and was extinguished by the longwall
machine's fire suppression system and a 10-
pound fire extinguisher operated by one of
the operator's employees.
6. Kelly Burnham, at all relevant times, was
the longwall foreman at the Willow Creek Mine
and was responsible for the operation of the
longwall production unit. Mr. Burnham was
the individual who made the entry in the on-
shift report for the longwall section on the
afternoon shift on August 26, 1998. Mr.
Burnham did not make an entry in the on-shift
report concerning the ignition, nor did
anyone else.
7. The ignition occurred during the
afternoon shift on August 26, 1998. That
shift worked from about 2:00 p.m. until
midnight. Burnham was not in the vicinity of
the ignition when it occurred.
8. Mr. Burnham was not present on the
longwall face when the ignition referenced in
the citation occurred. He was in the bleeder
entries at the time. When he returned to the
face, the longwall crew reported to him that
an ignition of some sort had occurred, but
Mr. Burnham did not observe the ignition.
9. Jack Trackemas was the mine manager at
the Willow Creek Mine.
10. Mr. Trackemas first learned of the
ignition late in the evening of August 26,
1998, but prior to the end of the afternoon
shift, through a telephone call from Mr.
Pesarsick.
11. John Pesarsick, at all relevant times,
was the shift supervisor at the Willow Creek
Mine.
12. Mr. Pesarsick was on the surface in the
Conspec Room when the longwall headgate
shearer operator reported that an ignition
had occurred around the tailgate of the
longwall.
13. Mr. Trackemas, Mr. Pesarsick, and Mr.
Burnham are "certified persons" as that term
is used in 30 C.F.R. � 75.363(b). They agree
that any decision in these matters upon
summary decision as to the fact of violation
with respect to Citation No. 7625090 would
apply to them in Docket Nos. WEST 99-422, 99-
423, and 99-446. They do not agree that, if
a violation is found to have existed, that
they knowingly authorized, ordered, or
carried out any violation found to have
occurred.
14. In conclusion, the parties submit that
the issue of whether a violation occurred is
a legal issue; specifically, whether "found"
as used in the cited standard (30 C.F.R. �
75.363(b)) encompasses circumstances where a
hazardous condition becomes known to a
certified person by a report or whether
"found" is limited to circumstances where the
hazardous condition is personally observed or
discovered by the certified individual.
II. SUMMARY OF THE PARTIES' ARGUMENTS
The Secretary contends that three certified persons at the
mine found a hazardous condition that had not been reported in
the preshift or weekly examination books and they failed to
report it in the required record book, hereinafter, the "on-shift
book." The hazardous condition was the ignition in the longwall
that occurred at about 19:30 on August 26, 1998.
The Secretary maintains that the language of the safety
standard makes clear that the certified person does not have to
personally observe the hazardous condition in order for the
requirements of the safety standard to apply. The Secretary
argues that if a miner tells a certified person about a hazardous
condition at a mine, the certified person must record the hazard
in the on-shift book, if he agrees with the miner that the
condition presented a hazard. She contends that, in this case,
all three certified persons became aware of the hazardous
condition before the end of the shift and that a violation
occurred because the condition was never recorded in the on-shift
book. The Secretary notes that there is no indication in this
case that Plateau failed to record the condition because it did
not consider the condition to be hazardous. Rather, the operator
did not record the hazardous condition because no certified
person personally observed the condition.
The Secretary also contends that the preamble to the
regulation supports her interpretation that the word "found" in
the safety standard does not require personal observation by the
certified person. She argues that the interpretation urged by
Plateau is directly contrary to the intent of the standard which
is to prevent injuries by requiring the posting and recording of
hazardous conditions to ensure that it is corrected.
Plateau maintains that the language of the standard only
requires the reporting of incidents that are "found" by the
designated mine officials. That is, unless one of the certified
persons set forth in subsection (a) of the standard finds the
hazardous condition, the condition is not required to be recorded
in the on-shift book. It argues that its interpretation is
supported by the posting requirement because the certified person
must be at the site of the hazardous condition to either post the
hazard or to take steps to have the condition immediately
corrected. Plateau also points to the preamble to the regulation
to support its argument. Plateau contends that the Secretary's
interpretation of 75.363 must be rejected because it is at
variance with the plain language of the standard.
III. DISCUSSION WITH CONCLUSIONS OF LAW
The issue in this case revolves around the meaning of the
word "found" in subsections (a) and (b) of the safety standard.
It appears that this is an issue of first impression. The
regulation states that any hazardous condition "found by the mine
foreman or equivalent mine official, assistant mine foreman or
equivalent mine official, or other certified persons" must be
posted and a record of the condition and corrective action must
be made in the on-shift book. For purposes of this order, I will
use the term "certified persons" when referring to this list of
persons. The standard does not say who must first discover the
hazardous condition. In most cases, if a miner first discovers a
hazardous condition, he would likely report it to a certified
person, who would then go examine the condition. If, in that
situation, the certified person determines that the condition is
hazardous, I believe that the standard requires that the
condition be recorded. The mere fact that someone other than a
certified person first discovered the condition would be
irrelevant. Because of the nature of the hazardous condition in
this case, a certified person did not personally observe the
condition. I believe that this fact should not defeat the
purpose of the standard.
I agree with Plateau that the word "found" as used in
subsection (a) of the standard is ambiguous, especially because
it is followed by the titles of very specific individuals to whom
the term is to be applied. Thus, I do not agree with the
Secretary that the regulation is clear on its face. The word
"found" is fraught with difficulty because it can be used in so
many different ways. The term "find" has an adjudicatory
meaning, it can mean "to happen upon," or it can mean to "learn"
or "discover." The term is too ambiguous to have a clear meaning
in the context of the safety standard.
If the terms of a safety standard are ambiguous, the
Commission must defer to the Secretary's reasonable
interpretation of the regulation, unless it is plainly erroneous
or inconsistent with the regulation. Energy West Mining Co. v.
FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); Island Creek Coal Co.,
20 FMSHRC 14, 18 (January 1998). The legislative history of the
Mine Act provides that "the Secretary's interpretations of the
law and regulations shall be given weight both by the Commission
and the courts." S. Rep. No. 181, 95th Cong., 1st Sess. 49
(1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977 at 637 (1978). I
conclude that the Secretary's interpretation is reasonable and is
consistent with the objectives of the Mine Act.
The fact that none of Plateau's certified persons observed
the ignition because they were not in the longwall face at the
time does not mitigate the need to record the incident in the on-
shift book. They were informed of the ignition before the end of
the shift and Mr. Burnham made at least one entry in the on-shift
book that day, but he did not record the ignition. The on-shift
book, along with the records for the pre-shift and weekly
examinations, provides important information to mine operators.
This information can be used to improve the safety and health of
miners. These books can also used by MSHA to monitor conditions
at a mine. Whether a hazard is recorded in the on-shift book
should not depend upon the location of an operator's certified
persons at the time of the incident.
Plateau relies on the posting requirement in subsection (a)
to support its argument. It contends that if the certified
person is not present when the hazardous condition is found he
cannot post the area to prevent entry or immediately correct the
condition so the hazard no longer exists. This argument is not
well taken. As stated above, in most instances once the
hazardous condition is reported to the certified person, he can
go to the area and take whatever remedial measures are necessary.
In the instant case, the issue as to whether the hazardous
condition required posting is not before me. In any event, a
certified person could have traveled to the longwall face and
made that determination.
Each party relies on the regulatory history of the standard
to support its position. When the standard was first proposed,
the first sentence of subsection (a) read, in pertinent part:
"Any hazardous conditions found by, or reported to, the mine
foreman ...." (59 Fed. Reg. 26396, May 19, 1994)(emphasis
added). Plateau contends that the deletion of the highlighted
language evidences the Secretary's clear intent that if a
hazardous condition is reported to a certified person rather than
observed by the certified person, it need not be recorded in the
on-shift book.
I find that the preamble provides an explanation for this
change. Several comments that were filed with MSHA suggested
that the "or reported to" language in the proposal could be
interpreted to mean that the certified person would be required
to record and post the condition even if he did not believe that
a hazard was present. The preamble states:
Under the proposal, hazardous conditions
reported to [certified persons] would have
required posting. Commenters suggested that
requiring [the posting of] hazardous
conditions "reported to" these individuals
would eliminate the judgment of the persons
responsible for making decisions about
whether or not a hazardous condition exists.
One commenter suggested that the requirement,
as proposed, could undermine the integrity of
the certified person.
(61 Fed. Reg. 9802, March 11, 1996). The proposal was revised to
delete the "or reported to" language based on these comments.
The preamble goes on to state: "MSHA would expect that when a
hazardous condition is reported to these certified persons, that
the measures necessary to evaluate the situation and, if
necessary, comply with the provisions of this section would be
taken." Id.
I conclude that the preamble supports the Secretary's
interpretation of the standard. The "as reported to" language
was removed to make clear that it is the certified person who
decides whether a hazardous condition exists, not individual
miners. I reject Plateau's argument that this language was
removed because MSHA "did not want to require the recording of
hazardous incidents that are `reported to'" certified persons.
(P. Motion 8). Plateau also relies upon the language in the
preamble that states that "MSHA would expect" certified persons
to evaluate a condition reported to them so they can determine if
the requirements of the standard "would be taken." It maintains
that the "would expect" language shows that MSHA merely
entertained a "hope" that mine operators would post and record
hazardous conditions reported to a certified person. Id. I hold
that the use of the word "expect" does not detract from the
Secretary's interpretation of the standard. The preamble makes
clear that she requires conditions that are reported to a
certified person to be recorded and posted or corrected if the
certified person determines that a hazardous condition was
present.
**FOOTNOTES**
[1] Docket No. WEST 99-196 also involved two section
104(a) citations, but by order dated January 10, 2000, I approved
the parties' proposed settlement of those citations.
I find, based on the stipulations and pleadings, that there
is no genuine issue as to any material fact and that the
Secretary is entitled to partial summary decision on the issue
presented to me. The issue presented is whether Plateau violated
section 75 75.363(b) as alleged in Citation No. 762090 and my
finding in this regard applies to the individual respondents.[2]
IV. ORDER
Based on above, the Secretary's motion for partial summary
decision is GRANTED and Plateau's motion for summary decision
with respect to Citation No. 762090 is DENIED. The parties shall
confer for the purpose of attempting to resolve the remaining
issues. If a settlement cannot be reached, the parties shall
discuss proposals for resolving the remaining issues. In either
event, counsel for the Secretary shall initiate a conference call
to discuss the cases on or before April 21, 2000.
Richard W. Manning
Administrative Law Judge
Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 20th
Floor, Pittsburgh, PA 15219-1410
RWM
**FOOTNOTES**
[2] In its response to the Secretary's motion for partial
summary decision, Plateau states:
Respondents did not stipulate that the ignition was
specifically a "hazardous condition" as contemplated by
the standard. It occurred and was immediately
extinguished. A question exists as to whether an
already corrected condition constitutes a "hazardous
condition" for the purpose of the standard.
(P. Response 3, n. 2). If it is Plateau's position that it did
not violate the safety standard even if a certified person found
the cited ignition, as the term "found" is interpreted by Plateau
in this case, then the stipulations and cross-motions for summary
decision serve no purpose. If Plateau believes that the ignition
did not create a hazardous condition, then whether a certified
person was present at the time of the ignition is irrelevant.
Although Plateau did not specifically stipulate that the ignition
presented a hazardous condition, it did stipulate that the
stipulations and cross-motions were filed so that the judge could
determine "whether a violation existed with respect to Citation
No. 7625090." (Stip. 2). It further stipulated that "[i]f it is
found that a violation existed, the issues of the appropriate
penalty for the operator and whether Messrs. Pesarsick,
Trackemas, and Burnham committed knowing violations of the cited
standard, would remain." Id. Finally, the parties stipulated
that "the issue of whether a violation occurred is a legal issue"
involving an interpretation of the word "found." (Stip. 14).
There is no indication that, if I grant the Secretary's motion
for summary decision, Respondents could then challenge the
citation in subsequent proceedings on the basis that no hazardous
condition existed. Such an interpretation is at odds with the
terms of the stipulations that I decide whether there was a
violation based on the stipulated facts and cross-motions.