FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

July 25, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY:     Jordan, Chairman, and Nakamura, Commissioner

            In these matters arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” of “Act”), Administrative Law Judge William B. Moran vacated a citation that was issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Oak Grove Resources, LLC (“Oak Grove”). 33 FMSHRC 846, 854 (Mar. 2011) (ALJ). The citation alleged that Oak Grove violated a notice of safeguard (“safeguard”) which had been issued to the mine pursuant to section 314(b) of the Mine Act, 30 U.S.C. § 874(b). OG Ex. 1.

I.

Factual and Procedural Background

            Oak Grove operates an underground coal mine in Jefferson County, Alabama. Gov. Ex. 4 at 2. On May 22, 2008, a fatal accident occurred at the mine as miners were transporting the 24-ton body of a shearing machine along the main haulage road. 33 FMSHRC at 847.

            The miners were attempting to move the shearer to the mine’s working face using four locomotive motors. Id. Two of the motors were used to pull and two motors were used to push the shearer. Id. Specifically, Motor No. 8 was the lead pulling car. Id. Motor No. 3 followed and was connected to Motor No. 8 by a rigid coupling device. Id. Behind Motor No. 3 was the shearer carrier which held the shearer body. Id. The shearer body itself was connected to Motor No. 3 by a flexible wire rope. Id. Motor No. 4 followed and was connected to the carrier by a solid drawbar. Id. Finally, the rear of Motor No. 4 was connected to Motor No. 9 by a rigid coupling device. Id. The wire rope that connected Motor No. 3 and the shearer body was the only flexible connection. Id.

            The shearer carrier periodically derailed from the track as it moved inby the mine. Gov. Ex. 4 at 6. A derailment occurred as the carrier traveled up an incline in the mine floor. 33 FMSHRC at 847; Gov. Ex. 4 at 6. This derailment caused Lee Graham, the operator of Motor No. 3, to exit his vehicle and walk over to the carrier. 33 FMSHRC at 847. While Graham was standing on the tracks examining the situation, Motor Nos. 8 and 3 either slid or rolled downhill and pinned him against the carrier. Id. at 847-48; Tr. 57. He was fatally injured. 33 FMSHRC at 847.

            MSHA Inspector David Allen investigated the accident. Id. at 848. On January 8, 2009, he issued Citation No. 7696616 to Oak Grove. Id.; OG Ex. 1. The citation states:

A fatal accident occurred on May 22, 2008, when a motorman was crushed between a derailed haulage car and the locomotive he had been operating. The haulage car was being pushed on the main haulage road. The victim would not have been exposed to the pinch point between the locomotive and the haulage car if the car was being pulled instead of pushed on the main haul road.

OG Ex. 1. The citation charged Oak Grove with violating a previously issued safeguard identified as Safeguard No. 2604892. That document required in pertinent part that “cars on main haulage roads not be pushed except where necessary to push cars from side tracks located near the working section to the producing entries and rooms.” OG Ex. 2.

            Oak Grove contested both the citation and the validity of the underlying safeguard. 33 FMSHRC at 847, 850 n.4. On March 28, 2011, the judge issued a decision in which he concluded that the safeguard was invalid, as it failed to identify the “hazard” at which it was directed. Id. at 852. The citation was thereupon vacated. Id. at 854.  

II.

Disposition

                        A.        The Requirements for a Valid Safeguard. 

            In addition to the mandatory health or safety standards contained in the Mine Act or promulgated pursuant to notice and comment rulemaking under section 101(a), the Act permits the Secretary to issue “safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards with respect to transportation of men and materials . . . .” 30 U.S.C. § 874(b). The safeguard notices are issued on a mine-by-mine basis. Once issued, the safeguard operates as a mandatory standard for that mine. If the operator does not comply with the requirements contained in the safeguard, the inspector issues a citation. 30 U.S.C. § 814. 

            The Secretary has published general criteria to guide inspectors in determining when a particular safeguard may be required at a mine. 30 C.F.R. § 75.1403-1. Any one of these general criteria may form the basis of a safeguard notice issued at an individual mine. In addition, an inspector may also issue safeguards that are not included in these published criteria. 30 C.F.R. § 75.1403-1(a).

            Recognizing that safeguards are implemented “without resorting to otherwise required rulemaking procedures,” the Commission has determined that “a safeguard notice must identify with specificity the nature of the hazard at which it is directed and the conduct required of the operator to remedy such hazard.” Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) (“SOCCO I”). Although the safety of miners requires that “the hazard of concern to the inspector is fully understood by the operator, thereby enabling the operator to secure prompt and complete abatement,” we have recognized that “safeguards are written by inspectors in the field, not by a team of lawyers” and have cautioned that the requirement of specificity is “not a license for the raising or acceptance of purely semantic arguments.” Id. at 512, n.2.

                        B.        The Validity of Safeguard No. 2604892.

            Approximately 22 years prior to the fatal accident that led to this proceeding, an MSHA inspector issued Safeguard No. 2604892, which required “that cars on main haulage roads not be pushed except where necessary to push cars from side tracks located near the working section to the producing entries and rooms.” OG Ex. 2. This prohibition simply repeated the language of 30 C.F.R. § 75.1403-10(b), which as indicated supra lists criteria that may prompt the issuance of a safeguard. The safeguard was issued after the inspector observed a “battery powered locomotive [that] was being used to push two loaded supply cars . . . down the graded haulage supply mine track entry.” OG Ex. 2.

            We have recognized that the safeguard criteria contained in section 75.1403-1 et seq., are “designed to minimize ‘commonly recognized’ transportation hazards.” Southern Ohio Coal Co., 14 FMSHRC 1, 6 (Jan. 1992) (“SOCCO II”). Thus it has long been commonly recognized that pushing cars on the main haulage roads of an underground mine is a hazardous practice. See 30 C.F.R. § 75.1403-10(b); see also 30 C.F.R. § 75.1403-7(c) (providing that “[m]antrips should not be pushed”).

            Our dissenting colleague claims, without support, that safeguards were intended as only a “stopgap measure,” slip op. at 9, and he questions the validity of any safeguard based on these general criteria. In his view, a generally disfavored practice cannot be the subject of a safeguard issued to a particular mine; it can only be addressed by the issuance of a mandatory standard prohibiting the conduct. This view, which reads the entire safeguard provision in section 314(b) out of the Act, was rejected in SOCCO II. In that case the Commission considered “[w]hether a notice to provide safeguards issued under section 75.1403 is invalid if it addresses conditions that exist in a significant number of mines.” 14 FMSHRC at 8.

            Answering the question in the negative, the Commission determined that:

            The rulemaking provisions of sections 101 and 301 of the Mine Act do not circumscribe the authority to issue safeguards granted to the Secretary in section 314(b). . . . [I]n general, it is within the Secretary’s sound exercise of discretion to issue mandatory standards or to issue safeguards for commonly encountered transportation hazards. . . . We discern nothing in the Mine Act or its legislative history expressly requiring that the hazard be unique to the mine at issue and nothing prohibiting the use of similar safeguards to address similar unsafe conditions that may exist at a number of mines.

Id. at 9-10.

            The judge below determined that the safeguard was invalid because it failed to identify the “hazard” at which it was directed. Specifically, since the safeguard failed to indicate that pushing a supply car could result in such problems as compromised visibility, the lack of positive control, and the creation of a “pinch-point,” the judge concluded that it failed to comply with the requirements of SOCCO I and was therefore fatally defective. 33 FMSHRC at 851-53. Even if, arguably, SOCCO I and its progeny could be read as requiring such an outcome, we subsequently rejected that interpretation in The American Coal Co., 34 FMSHRC 1963 (Aug. 2012).

            In American Coal, we expressly rejected the argument that a safeguard must not only describe a “hazard,” but also describe the potential risks or harms associated with that hazardous condition. Id. at 1969-1971. Although the Secretary may on occasion choose to include a description of the potential risks or harms associated with the hazardous condition described in a safeguard, such inclusion is not necessary under Commission case law. Id. at 1971. Given that many potential risks can flow from the cited hazardous condition, we concluded that it would be unreasonable to require the inspector to identify each and every one. Id. at 1969-70. We indicated that a valid safeguard provides an operator with notice of the conditions considered hazardous and the conduct required to comply with the safeguard; it need not foreshadow the events that may occur if the safeguard is not implemented.

            We conclude that Safeguard No. 2604892 is a valid safeguard. It identifies a hazardous condition, i.e., a locomotive pushing two loaded supply cars, and a remedy, i.e., cars on main haulage roads are not to be pushed. OG. Ex. 2.

III.

Conclusion

            In sum, we conclude that Safeguard No. 2604892 is valid, and we reverse the decision of the judge. These proceedings are remanded to the judge so that he may determine whether the Secretary proved that Oak Grove violated Safeguard No. 2604892 as alleged in Citation No. 7696616, and conduct such other proceedings as may be appropriate.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioner Young, dissenting:

            I dissent from my colleagues because I believe the judge correctly applied the law to the safeguard at issue, and properly found it lacking. The majority, in validating the safeguard at issue, disregards the nature of safeguards as well as the legal requirements we’ve established for their affirmance.

            The majority makes much of an alleged longstanding recognition that “pushing cars on the main haulage roads of an underground mine is a hazardous practice.” Slip op. at 5, citing 30 C.F.R. §§ 75.1403-7(c), 75.1403-10(b). That cannot logically be true. Were it so, the practice would be banned by a mandatory safety standard. It is not. Rather, there is a mere expression of disapproval in a regulation, which serves as a guideline criteria for safeguards, dating from the inception of MSHA’s regulatory program.

            Following the majority’s line of reasoning, we would be required to conclude that MSHA has identified a hazardous practice for more than 40 years yet has failed to promulgate a mandatory standard prohibiting it. If the practice is, indeed, hazardous per se, as the majority suggests, MSHA should protect all miners by banning the pushing of cars on main haulage roads under properly-promulgated mandatory standards, and failure to do so amounts to dereliction.

            Beyond that, there are a number of exceptions to the “prohibition” against pushing. None of the exceptions is accounted for in section 75.1403-10(b) in a way that clearly implicates a specific “hazard” as we defined it in American Coal, 34 FMSHRC 1963. There, we endorsed the ALJ’s definition of “hazard” as a “condition[]/object[] that could affect the safe transportation of men and materials.” Id. at 1971. Pushing cars is not a “condition;” it is a practice. The hazardous condition is not self-evident, and it must be.

            Aside from being a requirement of the law, articulation of the hazard itself is important. Safeguard cases are different from those alleging a violation of an express mandatory standard. Rather than centering on whether the operator’s acts or omissions occurred or were in violation of the standard, cases such as the one before us today challenge the validity of the standard itself. In recognizing this, we have not permitted safeguards merely to proscribe a practice. Rather, we have required the nature of the hazard itself to be described with particularity. SOCCO I, 7 FMSHRC at 512.

            From a legal standpoint, doing so ensures that the operator is aware of MSHA’s discreet concern for safety. See id. (“We further believe that the safety of miners is best advanced by an interpretive approach that ensures that the hazard of concern to the inspector is fully understood by the operator, thereby enabling the operator to secure prompt and complete abatement.”) We have, after all, held that valid safeguards are enforceable as mandatory safety standards, id., and the choice to use a safeguard in lieu of regulations voids certain due process protections embedded in that process.

            In the present case, the majority attempts to cure this by alleging that the operator had notice arising from the issuance of the safeguard some 22 years prior to the accident which prompted the investigation and citation in this case. That is the better part of a career in the mines, and it would be astonishing if anyone yet working for the operator or MSHA was present in this mine on both the date of the accident and the date of the safeguard’s initial issuance. Imputing knowledge of the original safeguard and its meaning in this manner is, practically, governance by administrative folklore.

            That raises the most critical problem with the failure to define the hazard in this case: the lapse precludes thinking about safety and hazards in an active way. Some practices are patently unsafe, and no further explanation is necessary. See, e.g., Oak Grove Res., 33 FMSHRC at 853 n.7 (citing obvious fall hazard from operating elevator with door open). Here, the safeguard simply prohibits cars from being pushed on main haulage roads. However, there is no obvious danger from pushing equipment. The danger is variable and circumstantial, as the judge (and MSHA’s witness below) recognized. See id. at 850-51 (noting several possible hazards).  

            Thus, while it is possible to conceive of hazards arising from the practice at issue, the judge properly observed that the inspector testifying on behalf of the Secretary was required to “read into” the safeguard the underlying hazards, which could include inability to maintain control while pushing equipment downgrade, or a lack of visibility where a load obstructs the operator’s view. Id. The safeguard at issue did not identify these or any other hazards, however. Id. Failure to do so is fatal to the Secretary’s case.

            Finally, it is noteworthy that safeguards were intended as a stopgap measure to ensure transportation hazards could be addressed efficiently on a mine-by-mine basis in the infancy of the regulatory program. Section 314 of the Mine Act, which authorizes the use of safeguards, is among the provisions designated interim mandatory safety standards, pending the approval of improved mandatory safety standards. See 30 U.S.C. §§ 874, 861(a) (emphasis added). Section 101 of the Mine Act commands the Secretary to develop those improved standards. 30 U.S.C. § 811. The majority ignores this completely by seeking to bootstrap its decision on a provision in the federal regulations which disfavors the practice at issue in all mines without banning it in any mine. A true concern for safety would require the Secretary to promulgate a mandatory standard protecting all miners from the hazard.

            We have held that safeguards must be specific and must be construed narrowly due to their unusual status as inspector-generated mandatory standards. The judge correctly understood the appropriate governing standard and logically applied it in this case. I therefore would affirm his decision.

/s/ Michael G. Young

Michael G. Young, Commissioner

Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

Edward Waldman, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge William Moran

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004