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[DOCID: f:wv9913.wais]
RAWL SALES & PROCESSING CO.
February 25, 1999
WEVA 99-13-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 25, 1999
RAWL SALES & PROCESSING CO., : CONTEST PROCEEDING
Contestant :
v. : Docket No. WEVA 99-13-R
: Citation No. 7175284; 10/1/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Rocky Hollow Mine
ADMINISTRATION (MSHA), :
Petitioner :
SUMMARY DECISION
Appearances: William K. Doran, Esq., Heenan, Althen & Roles,
Washington, D.C., for the Contestant;
Douglas N. White, Associate Regional Solicitor,
Yoora Kim, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for
the Petitioner.
Before: Judge Feldman
Before me for consideration is a notice of contest with
respect to Citation No. 7175284 filed by Rawl Sales & Processing
Company (the contestant) against the Secretary of Labor (the
Secretary) and the Mine Safety and Health Administration (MSHA)
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977 (the Mine Act), 30 U.S.C. � 815. The contestant
challenges the applicability of the on-shift beltline examination
provisions of the mandatory safety standard in section 75.362(b),
30 C.F.R. � 75.362(b), to an unattended underground beltline that
is operating when no employees are working underground.[1]
The parties have stipulated to all issues of material fact
and have filed motions for summary decision. Oral argument was
conducted on January 25, 1999, at the Commission's Office of
Administrative Law Judges in Falls Church, Virginia. The
parties' briefs that address issues raised during the oral
argument have been considered in the disposition of this matter.
As discussed below, the Secretary's application of section
75.362(b) to the facts in this case must be rejected because it
mandates the exposure of on-shift beltline examiners, who
would otherwise not be required to go underground, to the hazards
of underground mining. Accordingly, Citation No. 7175284 shall be
vacated.
I. Statement of the Case
The contestant's Rocky Hollow underground mine is an idle
mine. The Rocky Hollow beltline is used as a conduit
beltline between the beltline of Sycamore Fuels Mine No. 1
(Sycamore Fuels), a separate and distinct adjacent
underground coal mine from which coal is extracted, and the
beltline of the Sprouse Creek Preparation Plant (Sprouse
Creek), the coal's ultimate destination. Specifically, the
coal from Sycamore Fuels is brought to the surface by
beltline. The coal is then transported approximately 3/4
mile on a surface beltline whereupon it enters underground
traveling approximately 5� miles through the idle Rocky
Hollow mine. Upon surfacing from Rocky Hollow, the beltline
runs approximately 100 feet to the Sprouse Creek Processing
Plant.
Coal is extracted from Sycamore Fuels during two shifts,
7:00 a.m. to 4:00 p.m., and, 4:00 p.m. to midnight.
Sycamore Fuels runs a non-production maintenance shift from
midnight until 7:00 a.m. Each day from 7:00 a.m. until
11:30 p.m., coal is transported from Sycamore Fuels on the
beltline to the processing plant, which includes the
beltline through Rocky Hollow. Rocky Hollow's preshift
examination begins at 3:30 a.m., and, Rocky Hollow operates
one work shift from 7:30 a.m until 3:30 p.m. There are
seven hourly and two salaried supervisory personnel that
work underground at Rocky Hollow during this shift. Their
job duties consist of performing underground preshift and
on-shift examinations, as well as examining, cleaning and
maintaining the beltline and related areas of the mine.
There are no personnel underground at Rocky Hollow from 3:30
p.m. to 11:30 p.m. when coal is transported on the beltline
through Rocky Hollow from Sycamore Fuels.
At issue is the validity of Citation No. 7175284, issued
on October 1, 1998, that seeks to apply the on-shift beltline
provisions of section 75.362(b) to the Rocky Hollow beltline
during the 3:30 p.m. to 11:30 p.m. "shift," a period during
which no personnel are assigned to work underground at Rocky
Hollow. Citation No. 7175284 states:
Coal is being transported through the [Rocky Hollow]
mine, from Sycamore Fuels to the Sprouse Creek
Preparation Plant, on the 1530 to 2330 shift, an on-
shift examination is not being conducted on this shift.
No one is underground at this time. (Emphasis added).
Section 75.362(b) provides:
During each shift that coal is produced, a certified
person shall examine for hazardous conditions along
each belt conveyor haulageway where a belt conveyor is
operated. This examination may be conducted at the
same time as the preshift examination of belt conveyors
and belt conveyor haulageways, if the examination is
conducted within 3 hours of the oncoming shift.
(Emphasis added).
It takes approximately three to four hours to perform an
on-shift examination of the Rocky Hollow beltline. For the
first eight weeks following the issuance of Citation
No. 7175284, in order to abate the citation and continue
operating after 3:30 p.m., the contestant extended the work shift
of four Rocky Hollow miners for three to four hours to perform
the on-shift examination required by MSHA. As of December 2,
1998, the contestant has stopped the belt at 3:30 p.m. to avoid
paying overtime.
II. Pertinent Stipulated Facts
A. Rocky Hollow
1. Contestant operates the Rocky Hollow Mine which is
an underground coal mine through which a conveyor
beltline carries raw coal from Sycamore Fuels Mine No.
1 to the Sprouse Creek Preparation Plant.
2. Rocky Hollow was an actively producing coal mine
from the mid-1970's until November, 1994. Today Rocky
Hollow is classified BA "Active-Nonproducing" because
it is an underground coal mine in which no coal is
being extracted from the earth.
3. Rocky Hollow is inactive and it exists solely as a
tunnel mine - the purpose of which is to serve as
throughway for the conveyor belt between Sycamore Fuels
and the Sprouse Creek Preparation Plant.
4. Rocky Hollow's MSHA Mine Identification Number is
46-05195.
5. Sycamore Fuels, Inc. operates the Sycamore Fuels
mine, MSHA Mine Identification Number 46-01756. Coal is
currently being produced at Sycamore Fuels.
6. Rawl Sales & Processing Co. Operates the Sprouse
Creek preparation plant, MSHA Mine Identification
Number 46-05368. Coal from Sycamore Fuels is processed
at Sprouse Creek.
7. Sycamore Fuels is located approximately 8 miles by
road from the Sprouse Creek Plant.
8. A conveyor beltline carries raw coal from Sycamore
Fuels to be processed at Sprouse Creek. The beltline
runs approximately .75 mile above the surface at
Sycamore Fuels, then runs approximately 5.5 miles
underground through the idle Rocky Hollow mine. From
Rocky Hollow, the beltline runs approximately 100 feet
to Sprouse Creek.
9. Sycamore Fuels mines coal on two production shifts
(7:00 a.m.- 4:00 p.m. and 4:00 p.m.- 12:00 a.m.)
and runs a non-production maintenance shift from
12:00 a.m.- 7:00 a.m.
10. Ordinarily, the beltline from Sycamore Fuels to
Sprouse Creek operates each day from approximately 7:30
a.m. until 11:30 p.m.
11. Rocky Hollow ordinarily operates one work shift
from 7:30 a.m.- 3:30 p.m. A total of 7 hourly miners
and 2 salaried supervisory personnel work at Rocky
Hollow. Except for one hourly electrician, all
personnel are certified to perform underground preshift
and on-shift examinations. Their duties consist solely
of functions related to examination, cleaning and
maintenance of the beltline and related areas of the
mine.
12. Each working day, three miners at Rocky Hollow
perform a preshift examination beginning at
approximately 3:30 a.m. The miners perform an on-shift
examination of Rocky Hollow during the 7:30 a.m.-3:30
p.m. shift.
13. Rocky Hollow is equipped with an automatic fire
warning system which is active 24 hours per day. The
conveyor belts are flame-resistance as required in MSHA
regulations.
14. Methane levels at Rocky Hollow are such that Rocky
Hollow is not required under Section 103(i) of the
Federal Mine Safety and Health Act to undergo spot
checks for methane.
15. The roof at Rocky Hollow is composed predominately
of shale.
16. Rocky Hollow has an approved roof control plan and
a ventilation plan.
17. There are four portals to Rocky Hollow. All four
portals are intake air since there is no coal being
produced at the mine. A mine fan operates 24 hours per
day and is examined daily.
18. The hourly miners at Rocky Hollow are represented
by the United Mine Workers of America and their terms
and conditions of work are covered by a collective
bargaining agreement.
B. Citation Number 7175284
19. On October 1, 1998, a Mine Safety and Health
Administration Inspector issued Citation No. 7175284 to
Contestant alleging a violation of 30 C.F.R.
� 75.362(b) as follows:
Coal is being transported through the mine
from Sycamore Fuels to Sprouse Creek
Preparation Plant, on the 1530 to 2330 shift,
an
on-shift examination is not being conducted
on this shift. No one is underground at this
time.
This was the first time Contestant had been cited for
a violation of this standard.
20. On October 30, 1998, Contestant filed a Notice of
Contest of Citation
No. 7175284.
21. The approximately 5.5 miles long portion of the
beltline which runs underground through Rocky Hollow
is the subject of Citation No. 7175284.
22. If Contestant assigns miners to examine the
beltline between 3:30 p.m. and 11:30 p.m., Contestant,
among other things, would be required to perform
preshift examinations of the areas the miners would
have to enter to perform the on-shift examination of
the beltline.
23. In addition, while miners are underground, the
mine will have to assign a person to monitor the main
mine fan on the surface, pursuant to 30 C.F.R.
� 75.311(e).
C. Summary Decision
24. The parties agree that there are no material
facts at issue and this case may be resolved on
summary decision.
III. Discussion and Evaluation
Ordinarily, when 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 an absurd result. See, e.g., Utah Power & Light
Co., 11 FMSHRC 1926, 1930 (October 1989) (citing Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-43 (1984)). However, regulatory provisions
that were promulgated in contemplation of, and intended to
apply to, routine mining operations such as those at
Sycamore Fuels, may become contrary to legislative intent
when applied to unusual circumstances such as those that
exist at the unstaffed Rocky Hollow mine. In this regard,
the Commission has stressed that "a [regulatory] standard
must be construed in accordance with the statutory language
upon which it is based." Consolidation Coal Company 15
FMSHRC 1555, 1557 (August 1993).
The preshift regulatory provisions in section 75.360,[2]
and the on-shift regulatory provisions in section 75.362,
implement the statutory requirements for preshift and on-
shift examinations set forth in sections 303(d)(1) and (e)
of the Mine Act, 30 U.S.C. � 863(d)(1) and (e). These
statutory provisions require preshift and on-shift examinations
in active workings and working sections.
The Mine Act and the Secretary's regulations define
"active workings" as "any place in a coal mine where miners
are normally required to work or travel." 30 U.S.C.
� 878(g)(4); 30 C.F.R. � 75.2. "[W]orking section" is
defined in the Mine Act and the regulations as "all areas
of the coal mine from the loading point of the section to
and including the working faces." 30 U.S.C. � 878(g)(3);
30 C.F.R. � 75.2.
Section 303(d)(1), in pertinent part, provides:
[1] Within three hours immediately preceding the
beginning of any shift, and before any miner in such
shift enters the active workings of a coal mine,
certified persons designated by the operator of the
mine shall examine such workings and any other
underground area of the mine designated by the
Secretary or his authorized representative. [2] Each
such examiner shall examine every working section in
such workings and shall make tests in each such
working section for accumulations of methane with
means approved by the Secretary for detecting methane
and shall make tests for oxygen deficiency with a
permissible flame safety lamp or other means approved
by the Secretary; examine seals and doors to determine
whether they are functioning properly; examine and
test the roof, face, and rib conditions in such
working section; examine active roadways, travelways,
and belt conveyors on which men are carried,
approaches to abandon areas, and accessible falls in
such section for hazards; test by means of an
anemometer or other device approved by the Secretary
to determine whether the air in each split is
traveling in its proper course and in normal volume
and velocity; and examine for such other hazards and
violations of mandatory health or safety standards, as
an authorized representative of the Secretary may from
time to time require. [3] Belt conveyors on which
coal is carried shall be examined after each coal
producing shift has begun. (Sentence numbers added).
(Emphasis added).
Section 303(e) of the Mine Act, in pertinent part, states:
At least once during each coal producing shift, or
more often if necessary for safety, each working
section shall be examined for hazardous conditions by
certified persons designated by the operator to do so.
(Emphasis added).
Under the facts of this case, there is a working section
and there are active workings at Sprouse Creek during the period
3:30 p.m. through 11:30 p.m. However, the active workings at
Sprouse Creek during this period do not provide the statutory
predicate for preshift and on-shift inspections at Rocky Hollow.
There are no active workings at Rocky Hollow from 3:30 p.m.
to 11:30 p.m. because there is no "oncoming shift" entering
Rocky Hollow at 3:30 p.m. Moreover, the Commission has
determined, and the Secretary has conceded, that coal carrying
belt equipment, alone, as referred to in the third sentence of
section 303(d)(1) of the Mine Act, does not constitute an
"active working" that requires an on-shift inspection. See
Jones & Laughlin Steel Corporation, 5 FMSHRC 209, 1212 (July
1983).
However, the Secretary argues the Commission's Jones &
Laughlin decision is not controlling because it only applies to
belt conveyors while section 75.362(b) applies to belt conveyor
haulageways. Thus, the Secretary, relying on Southern Ohio Coal
Co., 12 FMSHRC 1498, 1501 (August 1990), asserts areas or places
in a mine are "active workings" even if miners are required to
travel in such areas on an irregular basis. In Southern Ohio
the Commission determined a tailgate entry that is only examined
on a weekly basis is an "active working" area.
However, a tailgate is distinguishable from this case
because the tailgate is in a mine with working sections and
active workings. The tailgate can serve as an escapeway during
any working shift. In short, Southern Ohio's mine contained the
missing link that is required to support the position taken by
the Secretary in this case - - people. Consequently, the
Secretary's reliance on Southern Ohio is misplaced.
In the present case, there are no miners exposed to a
dangerous underground mine environment in the Rocky Hollow mine
from 3:30 p.m. until 11:30 p.m. Moreover, at oral argument, the
Secretary was unable to identify any mine personnel at Sycamore
Fuels or the Sprouse Creek Preparation Plant who were, in any
way, exposed to a hazard because of the contestant's failure to
perform an on-shift inspection of the Rocky Hollow beltline
during the hours from 3:30 p.m. to 11:30 p.m. In addition,
counsel for the Secretary could not identify any Sycamore Fuels
or Sprouse Creek employees who would be at risk even if an
explosion occurred in the Rocky Hollow mine. In this regard, it
is significant that the alleged violation in this case was
designated as nonsignificant and substantial (not reasonably
likely to contribute to injury).
Turning to the statutory language of the first sentence in
section 303(d)(1) of the Mine Act, while it is true the Secretary
may designate any area of a mine, such as a beltline, for special
preshift examination, the anticipated presence of miners
underground is a prerequisite to such special examination. The
plain language of section 303(d)(1) makes clear that preshift
examinations are required three hours preceding the beginning of
any shift only when it is contemplated that a miner in such shift
will enter the active workings of the coal mine.
Logic dictates there is no need for a preshift examination if
miners are not going underground.[3]
Similarly, if a preshift of Rocky Hollow is not required for
the 3:30 p.m. to 11:30 p.m. period because no one is underground,
there is no basis for requiring an on-shift examination. An on-
shift examination would expose the on-shift examiners to
significant mine hazards given the fact that they would be called
upon to conduct a four hour examination of a beltline that is 5�
miles long.
Ironically, although beltline examinations may serve the
interest of preventing interruptions in production because such
examinations may disclose conditions before it is necessary to
deenergize the beltline, the Secretary has not articulated why
such examinations would enhance safety given the absence of
miners who could be exposed to any hazard. Moreover, even the
mandatory on-shift examination sought by the Secretary would
result in the unattended operation of the beltline after the on-
shift examination was completed. Accordingly, it is not clear
that the references to "each shift that coal is produced" and
"oncoming shift" in section 75.362(b) apply to the unstaffed
Rocky Hollow mine during a period when there is no working
section and no working place.
Having concluded that the plain meaning of section 75.362(b)
does not support the Secretary's position, the focus shifts to
whether deference should be accorded to the Secretary's statutory
and regulatory interpretation. The Secretary asserts she should
be accorded "great deference to [her] interpretation of a
regulation [she] has promulgated under a statute [she] is
entrusted with administering. . . ." (Sec. br. at p.3). While
it is within this Commission's discretion to accord deference to
the Secretary's reasonable statutory and regulatory
interpretations when ambiguity exists, deference is particularly
appropriate in matters where the regulation involves
considerations that "`require significant expertise and entail
the exercise of judgment grounded in policy concerns.'" Thomas
Jefferson Univ. v. Shalala, 129 L. Ed. 405, 415 (1994) (quoting
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991)).
In essence, the Secretary asserts that it is safer to expose
beltline examiners to the hazards of underground mining in an
attempt to prevent a belt malfunction and possible fire.
However, the Secretary has failed to identify any miners who
would be exposed to any hazard if a fire occurred because the
beltline was not routinely examined after 3:30 p.m. A fire or
other smoke hazard could occur at any time, anywhere along this
5� mile belt, with or without the presence of belt examiners. In
such event, it is more desirable to have personnel on the surface
rather than underground.
In apparent recognition of the implicit underground safety
hazards associated with on-shift examinations, the Secretary also
argues that on-shift examinations during the eight hour period
preceding the preshift examination will reduce the hazards faced
by preshift examiners. However, the preshift examination begins at
3:30 a.m., four hours after the beltline is shut down.
The minimal risk, if any, posed to the preshift examiners does
not justify exposing the on-shift examiners to the hazards
associated with an operational beltline. Moreover, as noted
above, even the Secretary would permit the beltline's unattended
operation after the on-shift examination for a substantial part
of the eight hour "shift" immediately preceding the 3:30 a.m.
preshift examination.
Finally, the Secretary contends the failure to on-shift the
beltline may contribute to a fire which would pose a hazard to
firefighters. The potential hazard to victims trapped
underground in the event of a fire, far outweighs the potential
hazard to firefighters who would enter the mine from the surface
fully prepared to extinguish a fire.
Admittedly, I am less than comfortable with the concept of
an unattended beltline.
I have been ready and willing to defer to the Secretary upon a
showing of valid policy concerns. However, the Secretary's
insistence on an on-shift examination during the period 3:30 p.m.
to 11:30 p.m. cannot be reconciled with her conclusion that a
preshift examination is not required. Moreover, notwithstanding
the Secretary's failure to clearly identify anyone who is exposed
to risk, the Secretary's vaguely expressed safety concerns are
substantially undermined by the approximate four hour unattended
operation of the beltline that would occur after the
on-shift examination mandated by the Secretary is completed.
Consequently, I am unable to defer to the Secretary because she
has failed to advance any consistent, convincing policy concerns
that justify interpreting the pertinent statutory and regulatory
provisions in a way that prohibits unattended operation of the
Rocky Hollow beltline.
**FOOTNOTES**
[1]: For the purposes of this decision, reference to on-
shift examination of the "beltline" includes examination of both
the belt conveyor and the belt conveyor haulageway.
[2]: Section 75.360 specifies a preshift examination must be
performed "within 3 hours preceding the beginning of any shift
during which any person is scheduled to work or travel
underground." (Emphasis added). 30 C.F.R. � 75.360.
[3]: At the oral argument, the Secretary's counsel conceded
a preshift examination
at Rocky Hollow prior to 3:30 p.m. is not required by section
75.360 because no miners are going underground. (Tr. 55).
ORDER
In view of the above, Rawl Sales & Processing Company's
Motion for Summary Decision in this contest proceeding IS
GRANTED. Consequently, Citation No. 7175284
IS VACATED.
Jerold Feldman
Administrative Law Judge
Distribution:
William K. Doran, Esq., Heenan, Althen & Roles, 1110 Vermont
Avenue, N.W., Suite 400, Washington, D.C. 20005
(Certified Mail)
Douglas N. White, Associate Regional Solicitor, Yoora Kim,
Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
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