The Secretary opposed the motions,
contending that the safeguards provided sufficient information regarding both the hazards
involved and the methods of abatement.FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001
August 30, 2012
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. THE AMERICAN COAL COMPANY |
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BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners
DECISION
BY THE COMMISSION:
These consolidated civil penalty cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). At issue is the facial validity of 13 notices of safeguards (“safeguards”) issued by the Mine Safety and Health Administration (“MSHA”). Section 314(b) of the Mine Act grants the Secretary authority 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). See also 30 C.F.R. § 75.1403 (repeating verbatim section 314(b)).
The American Coal Company (“American”) contested 45 citations, as well as the associated civil penalties which were proposed for the alleged violations of these safeguards. The civil penalty proceedings were assigned to Administrative Law Judge Margaret Miller. American then filed motions for summary decision, which alleged that the 13 safeguards were invalid on their face. Judge Miller denied these motions, concluded that each individual safeguard was facially valid, and issued a decision affirming the citations. 33 FMSHRC 169 (Jan. 2011) (ALJ). American petitioned for review of the judge’s decision, which the Commission granted.
We affirm the judge’s decision with respect to 12 of the safeguards and the citations associated with them. With respect to the remaining safeguard, Safeguard No. 7582396, we conclude that it was invalidly written for the reasons set forth below. Accordingly, Citation No. 6667919, which alleges a violation of this safeguard, is vacated.
I.
Factual and Procedural Background
Section 314(a) of the Mine Act requires mine operators to provide particular safeguards on hoists and other devices used to transport miners. 30 U.S.C. § 874(a). Section 314(b) grants the Secretary authority to issue “[o]ther 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 Secretary has published general criteria to guide an inspector in determining when particular safeguards may be required at a mine. 30 C.F.R. § 75.1403-1. An inspector may also issue safeguards that are not anticipated in the published criteria. See 30 C.F.R. § 75.1403-1(a). If the safeguard is not provided by the operator within the time fixed, or if it is not maintained thereafter, the operator will be issued a citation. 30 C.F.R. § 75.1403-1(b).
These proceedings involve safeguards issued to American’s Galatia underground coal mine, located in Saline County, Illinois. 33 FMSHRC at 171. The safeguards, issued between 1990 and 2006, addressed transportation hazards involving mobile equipment, travelways, conveyor belts, and hoists.
American contested the facial validity of the safeguards in two motions for summary decision. The first motion, filed May 6, 2010, addressed eight safeguards and 24 citations. The second motion, filed December 2, 2010, addressed five additional safeguards and seven more citations. In total, American requested that the judge declare 13 safeguards to be facially invalid and vacate 31 citations alleging violations of these safeguards. American argued that each of the safeguards failed to “identify with specificity the nature of the hazard at which it is directed and the conduct required of the operator to remedy such hazard.” Mots. at 3 (citing Southern Ohio
Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) (“SOCCO I”).
The Secretary opposed the motions,
contending that the safeguards provided sufficient information regarding both the hazards
involved and the methods of abatement.
The judge issued two orders denying the motions for summary decision. In the first order she stated that:
At the heart of this dispute is a disagreement as to what is meant by “hazard.” The Respondent equates “hazard” with potential risks/outcomes that may occur as a result of conditions in a mine. The Secretary argues that a safeguard is valid when the “type” of hazard is identified.
Unpublished Order at 3 (Sept. 20, 2010). The judge concluded that the term “hazard,” as contemplated by section 314(b) of the Mine Act, refers to “conditions [or] objects in the mine . . . that could affect the safe transportation of men and materials.” Id. She noted that while the Secretary occasionally chose to include the potential risks in a safeguard, such language is not required. Id. The judge found that because each safeguard specified hazardous conditions and provided a remedy, each safeguard was therefore valid on its face. Id. at 3-11; Unpublished Order at 4-8 (Jan. 4, 2011).
On October 19, 2010, American filed a Motion for Certification for Interlocutory Review, which was opposed by the Secretary. The judge denied the motion on November 10, 2010.
On December 27, 2010, the parties filed a list of joint stipulations, in which American stipulated that the conditions alleged in each contested citation constituted a violation of the cited safeguard. See Stips. at 4-16. The judge stated that “[t]he stipulations allow for a final order to be issued so that the validity of the underlying safeguards can then be appealed.” 33 FMSHRC at 171.
On January 4, 2011, the judge issued a final decision affirming the citations. Id. at 178-79. The decision incorporated both of the orders denying summary decision. Id. at 178.
II.
Disposition
On review, American argues that the safeguards are invalid on their face, because each fails to identify a specific hazard and some fail to specify the conduct required to comply. American submits that, in concluding that the safeguards were facially valid, the judge relied on an interpretation of the term “hazard” that is inconsistent with Commission precedent. American contends that as a result of these alleged defects and other ambiguities in the language of each safeguard, it lacks fair notice of how to comply. In addition, the operator also contends that the safeguards reflect hazards that are general in nature, and not specific to the Galatia mine.
The Secretary contends that the safeguards are facially valid, as they identify with specificity the nature of the hazard and the conduct required by the operator to remedy the hazard. She maintains that the judge’s interpretation of the term “hazard” in section 314(b) of the Act is consistent with Commission precedent: a safeguard identifies “the nature of the hazard” when it identifies the hazardous condition at which it is directed. Finally, the Secretary submits that because American never alleged, or offered evidence, that the safeguards were not specific to the mine, the Commission should not consider this issue on appeal.
A. American’s Argument that the Safeguards Were Not Based on Specific Conditions at the Mine is Not Properly Before the Commission
At the outset, we first address American’s request that the Commission adopt “a rebutable presumption against the validity of . . . safeguards [that are] issued repeatedly, to mine after mine over the years.”
Section 113(d)(2)(A)(iii) of the Mine Act provides that “[e]xcept for good cause shown, no assignment of error by any party shall rely on any question of fact or law upon which the administrative law judge had not been afforded an opportunity to pass.” 30 U.S.C. § 823(d)(2)(A)(iii). Nonetheless, the Commission has stated that the limitation in section 113(d)(2)(A)(iii) is not viewed as a “procedural straitjacket.” See Beech Fork Processing, Inc., 14 FMSHRC 1316, 1320 (Aug. 1992). The Commission has recognized that a matter urged on review may have been implicitly raised below or is so intertwined with something tried before the judge that it may properly be considered on appeal. See, e.g., id. at 1321; Freeman United Coal Mining Co., 6 FMSHRC 1577, 1580 (July 1984). The Commission’s practice has been to resolve these “opportunity to pass” questions on a case-by-case basis. See, e.g., Ozark-Mahoning Co., 12 FMSHRC 376, 379 (Mar. 1990). If none of these criteria is met, an issue may still be heard on appeal upon a showing of “good cause.” 30 U.S.C. § 823(d)(2)(A)(iii).
The only argument that American presented before the judge was that the safeguards were invalid on their face. American did not contend that the safeguards were of a general nature and not based on conditions observed by inspectors at the Galatia mine. Rather, by filing summary decision motions, American asserted that there were no issues of material fact in dispute. See Commission Procedural Rule 67(b)(1), 29 C.F.R. § 2700.67(b)(1) (summary decision shall be granted if “there is no genuine issue as to any material fact”). Furthermore, American has neither contended nor shown that good cause exists for raising its argument for the first time on appeal. Accordingly, we decline to review this issue as it is not properly before us.
B. Precedent Addressing Safeguards
The Commission has ruled that safeguards must be drafted with specificity, so that operators receive adequate notice of the conduct required and the conditions covered by the safeguard. SOCCO I, 7 FMSHRC at 512 (stating 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”). In SOCCO I, the operator was cited for violating a safeguard which stated:
A clear travelway at least 24 inches along the No. 1 conveyor belt was not provided at three (3) locations, in that there was fallen rock and cement blocks. All conveyor belts in this mine shall have at least 24 inches of clearance on both sides of the conveyor belts. This is a notice to provide safeguards.
Id. at 510. The Commission treated this safeguard as validly issued pursuant to section 314(b). See id. at 514. The safeguard specified hazardous conditions, i.e., fallen rocks and cement blocks obstructed a travelway at three locations, and a remedy, i.e., all conveyor belts in this mine shall have at least 24 inches of clearance on both sides of the conveyor belts. The Commission concluded implicitly that a safeguard which specifically identified hazardous conditions specified “the nature of the hazard.”
However, in SOCCO I, the Commission held that the language of a safeguard is to be
narrowly construed.
Id. at 512. Accordingly, the Commission vacated the contested citation
which identified accumulated water in the travelway. The Commission concluded that the
safeguard did not specifically provide notice that accumulated water was prohibited. Id. at 513-14.
Although we have never expressly ruled on the facial validity of a safeguard, we have consistently treated safeguards which specify hazardous conditions and provide a remedy, as valid. See also, e.g., Southern Ohio Coal Co, 14 FMSHRC 1 (Jan. 1992) (“SOCCO II”); Southern Ohio Coal Co., 14 FMSHRC 748 (May 1992) (“SOCCO III”); Green River Coal Co., 14 FMSHRC 43 (Jan. 1992).
In SOCCO II, the Commission reviewed a judge’s determination that a safeguard was invalid because it was not issued on a “mine-by-mine” basis. 14 FMSHRC at 2. The safeguard stated:
Shelter holes are not provided at 105 foot intervals on the 1 Left section supply track for a distance of 400 feet. Shelter holes shall be provided on all track haulage roads in this mine . . . .
Id. at 3. The Commission remanded the case to the judge to reconsider the validity of the safeguard, including the facts which led to its issuance. See id. at 13-15. However, the Commission declared “the safeguard in question is valid if it was based on the specific conditions at SOCCO’s mine and on a determination . . . that those conditions created a transportation hazard . . .” Id. at 14. Facially the safeguard in SOCCO II specified a hazardous condition, i.e., “[s]helter holes are not provided at 105 foot intervals,” and a remedy, i.e., “[s]helter holes shall be provided on all track haulage roads.” Id. at 3.
In SOCCO III, the Commission reviewed a judge’s decision to affirm a safeguard as valid because it was based on criteria published in 30 C.F.R. § 75.1403-10(h). 14 FMSHRC at 749-50. The operator contended that the judge erred and that the safeguard was invalid because it was directed at hazards that were of a general nature rather than specific conditions at the mine. Id. at 750. The safeguard stated:
Only 6 inches of side clearance was provided for the company no. 5062 rubber-tired scoop car being operated along the 3L2SW (014-0 mmu) supply track where supplies were being loaded into the scoop bucket. This is a Notice to Provide Safeguards requiring that a total of at least 36 inches of unobstructed side clearance (both sides combined) be provided for all rubber-tired haulage equipment where such equipment is used.
Id. at 749. The Commission remanded the case to the judge to consider whether “the safeguard was based on the judgment of the inspector as to the specific conditions at the [mine] and on the inspector’s determination that a transportation hazard existed that was to be remedied by the action prescribed in the safeguard.” Id. at 752. Importantly, the Commission did not conclude that the safeguard was invalid on its face when it specified a hazardous condition, i.e., “[o]nly 6 inches of side clearance” for a scoop car, and a remedy, i.e., “a total of at least 36 inches of unobstructed side clearance [shall] be provided for all rubber-tired haulage equipment.” Id. at 749.
Similarly, in Green River Coal Co., the Commission reviewed a judge’s decision to vacate a citation because the conditions alleged therein were not encompassed within the underlying safeguard. 14 FMSHRC at 44-45 (the citation alleged that a roof fall obstructed the travelway). The safeguard stated:
A clear travelway at least 24" wide was not provided on both sides of the “7B” belt between xcuts No’s 88 & 89. There was less than 24" on one side of belt between roof support (timbers) and rib nor between belt and roof support. This is a notice to provide safeguard.
Id. at 44. The Commission indicated that the “the nature of the hazard” in this safeguard was the “obstructions in travelways caused by the placement of roof support timbers” and treated the safeguard as valid, while affirming the judge’s decision to vacate the citation. Id. at 47-49.
In summary, the cases above demonstrate that the Commission has consistently treated safeguards that specify hazardous conditions and specify a remedy as valid safeguards.
C. The Judge’s Interpretation of the Term “Hazard,” as Used in Section 314(b) of the Mine Act
The judge stated that “the ‘hazard,’ as contemplated by section 314(b) of the Mine Act, refers to conditions [or] objects in the mine . . . that could affect the safe transportation of men and materials.” See Unpublished Order at 3 (Sept. 20, 2010); Unpublished Order at 3 (Jan. 4, 2011).
As discussed at length above, the term “hazard” in section 314(b) of the Mine Act has been applied by the Commission as meaning hazardous conditions. Accordingly, we conclude that the judge’s interpretation of “hazard” comports with Commission precedent. See, e.g., SOCCO I, 7 FMSHRC at 512 (where the Commission treated a safeguard as specifying “the nature of the hazard” when it alleged a hazardous condition, and not a harm). We note significantly that the judge rejected the necessity of naming a harm or risk in a safeguard for the practical reason that “far too many potential risks exist with any hazard for an [i]nspector to be expected to identify each and every one.” Unpublished Order at 3 (Sept. 20, 2010).
Moreover, we have recognized that the term “hazard” has more than one potential
definition. See Cement Div., National Gypsum Co., 3 FMSHRC 822, 827 & n.7 (Apr. 1981)
(referring to Webster’s Third New International Dictionary 1041 (1971)). The Commission
reaffirmed that the term can have multiple definitions in Enlow Fork Mining Co., 19 FMSHRC 5,
14 (Jan. 1997) (interpreting “hazardous condition” in 30 C.F.R. § 75.360(b)). In Enlow Fork, the Commission noted that hazard can both mean “a possible source of peril, danger, duress, or
difficulty” and “a condition that tends to create or increase the possibility of loss.”
Id. (citation
omitted).
American contends that the judge erred in her interpretation of the term, asserting that the
safeguard must articulate the specific risk or harm the miners face. The operator relies on the
description of “hazard” found in the Secretary’s Program Policy Manual (“PPM”),
the decision
of an ALJ in SOCCO III, and the Canadian Centre for Occupational Health and Safety’s website.
Id. at 9-11.
American’s arguments are not persuasive. First, it is well-established that the Secretary’s PPM does not prescribe rules of law that are binding on the Secretary or the Commission. D.H. Blattner & Sons, Inc., 18 FMSHRC 1580, 1586 (Sept. 1996); King Knob Coal Co., 3 FMSHRC 1417, 1420 (Jun. 1981). Moreover, although the PPM may encourage inspectors to identify a harm in a safeguard, it is not an obligation. We agree with the conclusion of the judge, who stated that “while, on occasion, the Secretary chooses to include language in the safeguard which addresses the potential risks [or] outcomes associated with hazards, such inclusion is not necessary under Commission case law.” Unpublished Order at 3 (Sept. 20, 2010).
We are also not persuaded by American’s reliance on the judge’s decision on remand in SOCCO III. In SOCCO III, the safeguard stated that there was “only 6 inches of side clearance . . . for the scoop car being operated along the [] supply track” and it required “36 inches of unobstructed side clearance (both sides combined) [to] be provided for all rubber-tired haulage equipment where such equipment is used.” Southern Ohio Coal Co., 14 FMSHRC 1404, 1405 (Aug. 1992) (ALJ). This safeguard both specified a hazardous condition, i.e., six inches of side clearance for the scoop, and specified a remedy, i.e., provide 36 inches of unobstructed side clearance. Therefore, this safeguard complied with the requirements of SOCCO I. However, after the Commission decision in SOCCO III, the judge on remand ruled that the safeguard was invalid because it did not identify “[t]he hazards to the scoop operator [of] potential injuries from striking the rib or the supply cars or in being struck by rib coal coming through the canopy [or the] [h]azards to pedestrians [of] being struck by a scoop or by a dislodged supply car.” Id. at 1407. The judge’s requirement to list the harms is contrary to SOCCO I’s requirement that a safeguard state a hazardous condition and a remedy. Additionally, in the preceding Commission decision in SOCCO III, the safeguard was not found to be invalid on its face. See SOCCO III, 14 FMSHRC at 752 (remanding for the judge to consider, in part, whether the safeguard was based on the specific conditions in the mine). In any event, the judge’s decision in SOCCO III is, of course, not binding precedent upon the Commission. See 29 C.F.R. § 2700.69(d).
Finally, American’s reliance on the interpretation of the term “hazard” by the Canadian Centre for Occupational Health and Safety is also not binding on the Commission nor is it persuasive. American relies on a selected quote that states: “[s]ometimes a hazard is referred to as being the actual harm or the health effect it caused rather than the hazard. For example, the disease tuberculosis (TB) might be called a hazard by some but in general the TB-causing bacteria would be considered the ‘hazard’ or ‘hazardous biological agent.’” PDR at 10 n.6 (citation omitted). This quotation fails to provide any guidance in the present case.
In summary, we conclude that the judge correctly interpreted “hazard” in section 314(b) of the Mine Act to mean “conditions/objects that could affect the safe transportation of men and materials.”
D. Facial Validity of the Individual Safeguards
The parties stipulated for each citation “that the condition or practice described in . . . this citation is a violation of the underlying safeguard cited.” E.g., Stips. at 4. Therefore, the only issue before us is the facial validity of each safeguard, which is a purely legal issue. Accordingly, we review the judge’s decision de novo. See Black Diamond Constr., Inc., 21 FMSHRC 1188, 1194 (Nov. 1999).
American argues that each safeguard is fatally ambiguous. However, in a prescient footnote in SOCCO I, the Commission expressly cautioned against the approach taken by American in this case, stating that “[t]he requirements of specificity and narrow interpretation are not a license for the raising or acceptance of purely semantic arguments. We recognize that safeguards are written by inspectors in the field, not by a team of lawyers.” SOCCO I,
7 FMSHRC at 512 n.2 (citation omitted).
For the following reasons, we find that 12 of the 13 safeguards at issue are facially valid, as they meet the requirements of SOCCO I:
1. Safeguard No. 7582643
The safeguard states:
The active 13th West Long wall working section, 058 MMU, was not provided with a clear travelway between the long wall face conveyor and the shield bases for the entire length of the long wall face. Coal and gob was observed deposited in the walkway and on the shield bases at various depths. This is a notice to provide safeguard(s) requiring that all long walls at this mine shall maintain the walkways and shield bases, between the face conveyor and the shields, free of all extraneous materials that would affect the safe travel of miners.
American alleges that the safeguard identifies conditions and not a hazard. The operator also alleges that the term “extraneous material” lacks necessary specificity. In addition, it argues that the safeguard does not adequately specify the corrective measures required of the operator. The Secretary submits that the safeguard is appropriately specific.
We conclude that the safeguard specifies “the nature of the hazard,” i.e., coal and gob in the walkway that would affect the safe travel of miners. The safeguard also specifies a remedy to the hazard, i.e., maintain the walkway and shield bases free of extraneous materials that would affect the safe travel of miners. Accordingly, we affirm the judge’s conclusion that the safeguard is valid on its face. Unpublished Order at 9 (Sept. 20, 2010). Additionally, whether material is “extraneous” would have been, at least in part, a question of fact to be resolved by the judge after a hearing, which American waived.
2. Safeguard No. 4054826
The safeguard states:
Accumulations of rib rash, rock, crib ties, belt rollers, and other extraneous material was observed along both sides of the 1st section main east belt conveyor, starting at survey station 675 east and extending inby to survey station 5175 east at the 1st section belt tail. These accumulations were at various locations and were not continuous.
This is a notice to provide safeguard requiring a clear 24 inch travelway be maintained free of debris and extraneous material, along both sides of all belt conveyors.
American argues that this safeguard on its face does not comply with SOCCO I, in part because the language used is ambiguous as it does not specify what is considered “extraneous material.” In its brief American asks hypothetically whether a fire extinguisher could be “extraneous material” under the safeguard. The Secretary states that whether an item constitutes “extraneous material” depends on the factual context.
We conclude that because the safeguard specifically identifies “the nature of the hazard,” i.e., rib rash, rock, crib ties, belt rollers, and other extraneous materials and specifies a remedy, i.e., a clear 24-inch travelway, it is valid on its face. Moreover, we conclude that whether a fire extinguisher in a travelway constitutes “extraneous material” is partially a question of fact that is to be resolved by a judge after a hearing, which American has waived. As a result, we affirm the judge’s conclusion that the safeguard is valid on its face.
3. Safeguard No. 7568565
The safeguard states:
Bottom irregularities, debris in the form of rock that had fallen from the roof, and wet and muddy conditions were present on the mine travelways at the following locations: on the Main East travelway from no. 69 to no. 85 crosscut, on the 6th North travelway from the mouth to no. 28 crosscut, and for the entire 6 North 5A unit travelway, a distance of approximately 20 crosscuts. This Notice to Provide Safeguards requires that all mine travelways be kept as free as practicable of bottom irregularities, debris and wet and muddy conditions that could affect the control of mobile equipment traveling these areas.
American argues that this safeguard is ambiguous, does not provide it with notice of the hazard, and does not specify the corrective measures required. In particular, the operator asserts that the safeguard is ambiguous because it lacks a description of “bottom irregularities” and the phrase “as free as practicable” is too subjective. The Secretary states that the possibility of a disagreement between the operator and the Secretary over the interpretation of a safeguard does not establish vagueness. She contends that the operator is making the type of semantic arguments cautioned against in SOCCO I. She adds that, according to SOCCO I, any vague language in the safeguard would be construed narrowly.
We conclude that this safeguard specifies “the nature of the hazard,” i.e., bottom irregularities, debris, and muddy conditions in a travelway that could affect the control of mobile equipment and specifies a remedy, i.e., all mine travelways are to be kept as free as practicable of bottom irregularities, debris and muddy conditions that could affect the control of mobile equipment. Hence, we affirm the judge’s conclusion that the safeguard is valid on its face.
4. Safeguard No. 3538483
The safeguard states:
[T]he established rubber-tired (off track) haulage roadway located in the no. 1 entry of the 1st East Longwall tailgate entries was not maintained to allow safe passage of miners and material. Numerous pieces of bridging lumber (2 ½" x 10 ½” x 12' - 14'), which were used to stabilize the mine floor, were dislodged or protruding from the mine floor along this travel entry. This is a notice to provide safeguards requiring all bridging lumber used on the mine floors be secured or that loose and dislodged pieces of lumber be re-secured or removed from the travelway.
American asserts that the safeguard does not provide notice of the harm it was intended to prevent or how to remedy the condition. The Secretary counters that American’s “contention is based on the flawed premise that knowledge of the potential harm(s) is necessary for the operator to know how to comply with the notice . . . rather, the notice must specifically identify the means of compliance.” S. Br. at 17.
We conclude that the safeguard specifies “the nature of the hazard,” i.e., haulage track roadway was not maintained to allow safe passage because it contained dislodged or protruding pieces of lumber, and specifies a remedy, i.e., secure or remove the loose pieces of lumber. We affirm the judge’s conclusion that the safeguard is valid on its face.
5. Safeguard No. 4268263
The safeguard states:
A clear travelway at least 24" inches wide was not provided on the No. 4 Galatia Belt from the No. 4 Belt Drive for approximately 100' feet, due to water and slurry conditions in an excess of 16" inches. This is a notice to provide a safeguard for a clear travelway at least 24" inches wide shall be provided on both sides of all belt conveyors and kept free from water and or slurry conditions that would affect safe travel of miners.
American states that the safeguard fails to state a hazard. It also suggests that the safeguard duplicates Safeguard No. 4054826. The Secretary asserts that the safeguard identifies a hazardous condition that affected the safe travel of miners, and that this safeguard differs from Safeguard No. 4054826, as the latter did not identify water accumulations.
We conclude that this safeguard specifies “the nature of the hazard,” i.e., water and slurry conditions in excess of 16 inches in a travelway, and a specifies a remedy, i.e., a clear travelway of at least 24 inches wide shall be provided on both sides of the belt conveyor. We affirm the judge’s conclusion that the safeguard is valid on its face.
In addition, we conclude that the safeguard in issue does not duplicate the protections afforded by Safeguard No. 4054826. A safeguard must specifically provide notice that it is intended to prevent accumulated water. SOCCO I, 7 FMSHRC at 513 (in which the Commission vacated a citation issued for accumulated water in the travelway, because the safeguard did not explicitly prohibit the accumulated water). This safeguard is aimed at preventing water accumulations, whereas Safeguard No. 4054826 did not identify wet conditions.
6. Safeguard No. 4054971
The safeguard states:
A miner was observed being hoisted from this coal mine, on the MAIN – MAN and MATERIAL CAGE with the NORTH gate secured in the open position. This gate measures nine (9) feet wide by seven (7) feet high. This is a NOTICE to provide safeguards requiring the gates on all cages, at this coal mine, be secured in the closed position when persons are being hoisted or lowered.
American asserts that the safeguard is invalid on its face. The Secretary argues that “[i]f the language of this safeguard notice is not sufficiently specific, no language will ever suffice.” S. Br. at 20.
We conclude that this safeguard specifies “the nature of the hazard,” i.e., a miner being hoisted in a man cage with the gate secured in an open position, and specifies a remedy, i.e., secure the gate in the closed position when persons are being hoisted. In addition, we agree with the Secretary that it requires only common sense to know that it is unsafe to travel in a hoist with an open gate and that the remedy is to close the gate. S. Br. at 20. We affirm the judge’s conclusion that the safeguard is valid on its face.
7. Safeguard No. 4272082
The safeguard states:
Construction tractor (CT10) was not provided with a proper coupling device. The construction tractor was enroute to the 8th west headgate unit pulling a material trailer loaded with crib ties coupled only with a belt chain. This is a notice to provide safeguard requiring that a proper coupling device be used on CT10 and all other mobile equipment used at this mine to transport materials and equipment.
American asserts that the safeguard is invalid on its face because it does not specify a hazard or the corrective measures required. American suggests, in part, that the term “proper coupling device” is too ambiguous. The Secretary contends that American has made the type of semantic argument that SOCCO I cautioned against. She asserts that the safeguard specifies a hazard (a belt chain used as a coupling device) and provides a remedy (the operator must use a device made specifically for coupling).
We conclude that this safeguard specifies “the nature of the hazard,” i.e., a construction tractor that was pulling a material trailer with only a belt chain, and specifies a remedy, i.e., a proper coupling device shall be used to transport materials and equipment. We affirm the judge’s conclusion that the safeguard is valid on its face.
8. Safeguard No. 7570492
The safeguard (as modified) states:
Accumulations of water and coal fines were present in the 2nd West Longwall walkway from Shield # 102 to Shield No. 122. These accumulations created a hazard for miners who must travel the longwall walkway. This is a notice to provide safeguards requiring that all longwall walkways be maintained free of water and slurry in depths that affect the safe travel of miners.
American argues that the safeguard provides no indication of how much water and material is prohibited. Furthermore, American suggests that this safeguard is duplicative of Safeguard No. 7582643. The Secretary states that the safeguard does specify how much water and material is prohibited – the level that “affect[s] the safe travel of miners.”
We conclude that the safeguard specified “the nature of the hazard,” i.e., accumulations of water and coal fines in the longwall walkway that affect the safe travel of miners, and a remedy, i.e., all longwall walkways are to be maintained free of water and slurry in depths that affect the safe travel of miners. We affirm the judge’s conclusion that the safeguard is valid on its face.
In addition, we conclude that the safeguard at issue does not duplicate the protections afforded by Safeguard No. 7582643. As previously discussed, according to SOCCO I, a safeguard must specifically provide notice that it intended to prevent accumulated water. 7 FMSHRC at 513. This safeguard is aimed at preventing water accumulations, whereas Safeguard No. 7582643 did not identify wet conditions.
9. Safeguard No. 4056981
The safeguard states:
The MT-11 personnel carrier located on the MMU 004, was not provided with a well maintained audible warning device. It failed to sound an alarm or warning when operated. This is a notice to provide safeguards that all personnel carriers shall be equipped with well maintained, functional audible warning devices.
American argues that this safeguard does not describe a hazard with specificity, and is therefore invalid on its face. The operator also contends that the safeguard should be vacated because it is duplicative of an existing mandatory standard, 30 C.F.R. § 75.1725(a) (requiring mobile equipment to be maintained in safe operating condition). The Secretary contends that the safeguard is valid, as it clearly states that the hazard is the lack of an audible warning device.
We conclude that this safeguard specifies “the nature of the hazard,” i.e., a personnel carrier was not provided with a well maintained audible warning device, and specifies a remedy, i.e., all personnel carriers shall be equipped with well maintained, functional audible warning devices. We affirm the judge’s conclusion that the safeguard is valid on its face.
With respect to the duplication argument, American did not raise this issue before the judge, and as a result it is not properly before us. See Beech Fork, 14 FMSHRC at 1319-20 (holding that according to section 113(d)(2)(A)(iii) of the Mine Act, new theories are not considered on review in the absence of good cause).
10. Safeguard No. 7582396
The safeguard states:
This is a notice to provide safeguard for all long wall units, the hydraulic manifolds, hoses and CIU shield control boxes shall be mounted in a manner to provide the maximum walkway clearance between the pan line cable tray rail and the shield components.
In the event that the clearances cannot be maintained to provide safe travel in these areas for the miners the conveyor shall be shut off and the electrical isolation switch at the head gate opened before miners travel through the affected area.
American argues that this safeguard is invalid on its face because it does not identify the “problem that required a safeguard.” In addition, the operator contends that it is uncertain how to comply with the safeguard’s directive as it does not address a specific amount of clearance that is required. The Secretary counters that the safeguard complies with the requirement of SOCCO I on its face. She asserts that the operator has demanded an impossible level of specificity.
The judge concluded that the safeguard was valid. Unpublished Order at 5 (Jan. 4, 2011). She stated that the safeguard identified with necessary specificity, “the hazard of hydraulic manifolds, hoses, and CIU shield control boxes which could obstruct the walkway . . .” Id. In addition, she concluded that the conduct required to remedy the hazard, namely the objects must be mounted in such a way that provides maximum walkway clearance between the pan line cable try rail and the shield components, was also sufficiently specific. Id.
We disagree. We conclude that this safeguard does not describe “the nature of the hazard”
with specificity, and is therefore invalid on its face. The inspector did not describe the conditions
that he observed in the mine that led him to issue the safeguard. While one may be able to infer that
the inspector observed hydraulic manifold, hoses, and CIU shields boxes that were not mounted in a
manner that provided maximum walkway clearance, the safeguard does not specifically state if
some or all these conditions were observed by the inspector. As a result, it does not comply with
SOCCO I’s directive to “identify with specificity the nature of the hazard.” Therefore, the
safeguard is invalid on its face. Accordingly, we reverse the judge’s conclusion that the safeguard
was valid.
11. Safeguard No. 4267616
The safeguard states:
The PV55 was not equipped with a sealed-beam headlight, or its equivalent, on each end. The rear lights had a blown fuse.
This is a notice to provide safeguards that all personnel carriers shall be equipped with a functional sealed-beam headlight or its equivalent on each end.
American alleges that the portion of this safeguard involving a blown fuse does not identify the hazard with specificity and that the safeguard is invalid on its face. The operator also alleges that the requirements of the safeguard duplicate the requirements of the mandatory standard in 30 C.F.R. § 75.1725(a). The Secretary asserts that the safeguard is valid. She states that the safeguard requires the operator to either fix a blown fuse, or remove the vehicle from service.
We conclude that this safeguard specifies “the nature of the hazard,” i.e., a PV55 that is not equipped with sealed-beam headlights and has a blown fuse on the rear lights, and specifies a remedy, i.e., all personnel carriers are to be equipped with a functional sealed-beam headlight or its equivalent on each end. We affirm the judge’s conclusion that the safeguard is valid on its face.
With respect to the duplication argument, American again did not raise the issue before the judge, and as a result it is not properly before us. See Beech Fork, 14 FMSHRC at 1319-20.
12. Safeguard No. 7577893
The safeguard states:
A material trailer was observed parked along the 4th North Headgate
at crosscut Number 24. The cable roof bolts, on the trailer, extended
outby the ribline approximately four feet into the travelway. A
continuous mining machine was also parked, along the Main West
Travelway, at crosscut Number 36 with the tail extending outby the
rib line approximately three feet. This is a Notice to provide
safeguards requiring all trailers and mine equipment be parked inby
the rib line at all times.
American alleges that this safeguard is invalid on its face, because in part, the safeguard does not specify how the alleged condition contributes to a hazard. The Secretary asserts that the hazard was the parked vehicles and equipment in the travelways.
We conclude that the safeguard specifies “the nature of the hazard,” i.e., a material trailer that contained equipment that extended into the travelway and a continuous mining machine with a tail that extended into the travelway, and specifies a remedy, i.e., all trailers and mine equipment are to be parked inby the ribline. We affirm the judge’s conclusion that the safeguard is valid on its face.
13. Safeguard No. 7581083
The safeguard states:
A suitable crossing facility was not provided for the energized 6th North Conveyor Belt in the belt drive area, where miners are routinely crossing under the energized belt conveyor. A bridge has been built under the belt in this area for miners to cross under the moving belt. This is a Notice To Provide Safeguards requiring where persons cross moving belt conveyors that a suitable crossing facility shall be provided.
American alleges that the safeguard does not describe a hazard that could result from a miner crossing under a belt. Furthermore, it asserts that the conduct described in the safeguard is too vague, and does not provide meaningful notice how to comply. The Secretary responds that if a dispute were to arise over the meaning of a “suitable crossing facility” at a hearing, the Commission would narrowly construe the language of the safeguard.
We conclude that the safeguard specifies “the nature of the hazard,” i.e., a suitable crossing facility was not provided in a drive area where miners are routinely crossing, and specifies a remedy, i.e., the operator is to provide a suitable crossing facility where persons can cross moving belt conveyors. We affirm the judge’s conclusion that the safeguard is valid on its face.
III.
Although we have upheld all but one of the Secretary’s safeguards in this case, we again take this opportunity to question, as a policy matter, “whether the proliferation of safeguards is the most effective method of addressing the more commonly encountered hazards in underground coal mine transportation.” SOCCO II, 14 FMSHRC at 15.
Transportation hazards are a major cause of injuries and fatalities in underground coal mines. Id. Nonetheless, the Secretary has acknowledged that she has very few mandatory standards addressing the haulage hazards in underground mines. Id. at 15-16 (citing the Secretary’s Regulatory Agenda, 56 Fed. Reg. 53584 (1991); see also Wolf Run, 32 FMSHRC at 1241 (Commissioner Duffy, dissenting). We note that the absence of certain mandatory haulage safety standards in underground coal mines stands in sharp contrast to the Secretary’s regulation of transportation hazards at surface metal and nonmetal mines (30 C.F.R. Part 56), underground metal and nonmetal mines (30 C.F.R. Part 57), and surface coal mines (30 C.F.R. Part 77). As a result of this disparity, a miner in a surface coal mine receives greater protection against transportation hazards than a miner working in an adjacent underground coal mine. This is because an underground coal mine may lack a safeguard that adequately addresses a common transportation hazard, and even if the safeguard does exist, as previously established, it only applies narrowly to the conditions described by the issuing inspector. See SOCCO I, 7 FMSHRC at 512. In comparison, the surface coal miner is protected by generally applicable mandatory standards, which are interpreted broadly. See, e.g., Allied Chemical Corp., 6 FMSHRC 1854, 1859 (Aug. 1984); Cleveland Cliffs Iron Co., 3 FMSHRC 291, 293-94 (Feb. 1981).
Accordingly, we reiterate our stance, taken in SOCCO II, that “because the use of individual safeguards, issued on a mine-by-mine basis, may not adequately protect all affected miners from haulage related hazards, we strongly suggest that the safety of underground coal miners would be better advanced by the promulgation of mandatory safety standards aimed at eliminating transportation hazards.” SOCCO II, 14 FMSHRC at 16 (emphasis in original).
IV.
Conclusion
In summary, we conclude that twelve of the safeguards at issue are facially valid. The valid
safeguards are Safeguard Nos. 4054826, 4054971, 4272082, 7568565, 3538483, 4268263, 7582643,
7570492, 4056981, 4267616, 7577893, 7581083. Accordingly, the judge’s decision upholding the
citations which allege a violation of these safeguards is affirmed.
With respect to Safeguard No. 7582396, we conclude that this safeguard is invalid on its face. Accordingly, the judge’s decision with respect to Safeguard No. 7582396 is reversed, and Citation No. 6667919, which alleges a violation of that safeguard, is vacated.
____________________________________
Mary Lu Jordan, Chairman
____________________________________
Michael F. Duffy, Commissioner
____________________________________
Michael G. Young, Commissioner
____________________________________
Robert F. Cohen, Jr., Commissioner
____________________________________
Patrick K. Nakamura, Commissioner
Distribution:
Daniel W. Wolff, Esq.
Crowell & Moring LLP
1001 Pennsylvania Avenue NW
Washington, DC 20004-2595
Noelle Holladay True, Esq.
Rajkovich, Williams, Kilpatrick & True PLLC
3151 Beaumont Centre Circle, Suite 375
Lexington, KY 40513
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., 25th Floor
Arlington, VA 22209-3939
Administrative Law Judge Margaret Miller
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
721 19th Street, Suite 443
Denver, CO 80202-5268