FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, D.C. 20001
November 30, 2007
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) v. AUSTIN POWDER COMPANY |
: : : : : : : : |
Docket No. CENT 2006-128-M |
BEFORE: Duffy, Chairman; Jordan and Young, Commissioners
DECISION
BY: Jordan and Young, Commissioners
These consolidated civil penalty proceedings arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (“Mine Act” or “Act”), involve citations
issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) to
Austin Powder Company (“Austin Powder”), alleging that it violated 30 C.F.R. §§ 56.6132(a)(4)
and (a)(5).
Administrative Law Judge Richard Manning upheld the citations. 29 FMSHRC 274
(Mar. 2007) (ALJ). The Commission granted Austin Powder’s petition for discretionary review
challenging the judge’s decision. The Commission also granted motions to participate as amicus
curiae from the National Stone, Sand & Gravel Association (“NSSGA”) and the Institute of
Makers of Explosives (“IME”). For the reasons that follow, we affirm the judge.
I.
Factual and Procedural Background
McGeorge Contracting Company (“McGeorge”) operates the Granite Mountain Quarry No. 2 in Pulaski County, Arkansas. 29 FMSHRC at 274. Austin Powder is an independent contractor at the quarry. Id. Austin Powder delivered and stored explosive materials but did not engage in any blasting activities. Id.
Austin Powder stored several types of detonators at the quarry, including Electro-Star and Rock Star detonators. Id. at 275; Tr. 31-32. Austin Powder utilized metal, welded freight containers, similar to those used to transport cargo, for storing the detonators. Tr. 38, 150-151. The unit at issue in this proceeding, container No. 8, was covered by plywood on the interior sides and floor, but the metal ceiling was not covered, which provided a sparking surface inside the storage area. 29 FMSHRC at 275; Tr. 38-39. The plywood on the sides covered up vents that would have controlled dampness and alleviated excessive heating inside. Tr. 38-40, 46, 150; G. Exs. 9-1 and 10-1.
On December 6, 2005, MSHA Inspector Steve Medlin conducted an inspection at the quarry. 29 FMSHRC at 274. Medlin issued Citation No. 6250692, charging Austin Powder with a violation of 30 C.F.R. § 56.6132(a)(5). Id. The citation stated:
The vents in the cap magazine number: 8 was [sic] covered up. This hazard exposes miners to the possibility of receiving injuries, should the explosives become over-heated. The foreman stated, new wood had been installed in the magazine, and was not aware the vents had been covered.
G. Ex. 5-1. The citation alleged moderate negligence. Id.
Medlin also issued Citation No. 6250695, charging Austin Powder with violating 30 C.F.R. § 56.6132(a)(4). 29 FMSHRC at 275. The citation stated:
The top of magazine number: eight was not covered with non-sparking material. This hazard exposes miners to the possibility of receiving injuries, should the electric blasting caps become [sic] set off. This area is traveled on a daily basis, to get supplies for the days shot.
G. Ex. 6-1. The citation alleged moderate negligence. Id. The Secretary proposed penalties of $60 for each citation. 29 FMSHRC at 275.
Austin Powder challenged the proposed penalty assessments and a hearing was held.
Thereafter, the judge issued his decision in which he stated that the parties did not dispute the
existence of the conditions that MSHA cited. Id. Further, the judge noted that the parties agreed
that the products stored in the magazine were “detonators,” as that term is defined in the
regulations.
Id. Based on the plain language of the regulation, the judge concluded that
explosives and detonators must be stored in magazines that are “bullet-resistant, theft resistant,
fire-resistant, weather-resistant, and ventilated.” Id. at 276. The judge stated that, in contrast,
“blasting agents” may be stored in a “storage facility,”
which corresponds to a Bureau of
Alcohol, Tobacco and Firearms (“BATF”) Type 4 or 5 facility that does not satisfy MSHA’s
definition of “magazine.” Id. at 276-77.
The judge rejected Austin Powder’s arguments that MSHA had incorporated into its
regulations BATF’s “entire enforcement structure,” which allows detonators such as those used
at the quarry that do not mass detonate,
to be kept in a storage facility that is not a “magazine” as
defined by MSHA. Id. at 277-78. The judge also concluded that the preamble to the final rule
governing explosives supported MSHA’s position, rather than Austin Powder’s, because the
regulations do not distinguish between types of detonators, i.e., between mass detonating
detonators and non-mass detonating detonators. Id. at 278-80. Based on the clear language of
the regulations, the judge also concluded that Austin Powder was provided with fair notice of the
requirements for detonator storage. Id. at 280-81. Finally, the judge found that Austin Powder’s
negligence was “low,” and, based on his analysis of the penalty criteria, he assessed a penalty of
$40 for each of the citations. Id. at 282.
II.
Disposition
Austin Powder’s main argument on review is that MSHA has improperly applied the “magazine” requirements for explosives in section 56.6132 to non-mass detonating detonators. A.P. Br. at 11. Austin Powder continues that the judge erred when, based on the language of the regulation, he concluded that the regulation does not distinguish between types of detonators. Id. at 11-12. Austin Powder argues that the judge further erred when he ignored MSHA’s intent expressed in the preamble to the publication of the final rule in the Federal Register. Id. at 13-18. Austin Powder also argues that the Secretary cannot deviate from BATF regulations on storage of explosives without engaging in additional rulemaking. A.P. Reply Br. at 4-6. Austin Powder contends that the citations are a reversal of MSHA’s position that was published in the preamble to the rule, and that due process requires notice to operators before the regulation can be enforced in such a manner. A.P. Br. at 18-22; A.P. Reply Br. at 2. Finally, Austin Powder argues that, even if the regulatory requirements are ambiguous, the Commission should not defer to the Secretary’s interpretation of the regulations because her interpretation has been newly articulated in an enforcement proceeding. A.P. Br. at 22-24.
The IME, whose members include manufacturers of commercial explosives and entities that transport and store such materials at customer sites, filed a brief in support of Austin Powder. IME argues that the judge essentially imposed the requirements for BATF Type 1 and Type 2 magazines to Type 4 storage facilities, which are used to store non-mass detonating detonators. IME Br. at 2. IME claims that, if the judge’s decision is allowed to stand, it would require replacing over 500 Type 4 storage facilities with Type 1 and Type 2 magazines at a cost of over $90,000 per magazine. Id. at 2-3. IME argues that the judge ignored language in the preamble to the final rule; that the decision is contrary to industry practice and MSHA’s enforcement for over 14 years; and that Austin Powder lacked fair notice of MSHA’s intent to alter the rule. Id. at 3-6. Finally, IME contends that MSHA is effecting a major change in regulatory practice without adhering to due process. Id. at 8-9.
The NSSGA argues that the economic impact of the judge’s decision will be “substantial”
because it will require retrofitting or replacing many Type 4 storage facilities with no
corresponding safety benefit. Mot. at 3.
The NSSGA further contends that the preamble of the
1993 final rule expressly permits non-mass detonating detonators to be stored in Type 4 storage
facilities. Id. The NSSGA concludes by arguing that MSHA is changing a longstanding
enforcement position without fair notice to operators. Id. at 3-4.
In response, the Secretary argues that the plain meaning of the regulations compels the conclusion that all detonators must be stored in magazines that are constructed in compliance with section 56.6132(a). S. Br. at 6-12. The Secretary further argues that Austin Powder’s contention that the regulation is ambiguous is unsupported by the language of the regulation. Id. at 12-13. Moreover, the Secretary contends that the regulatory history of the explosives standards, when read as a whole, supports the plain language reading of the regulation. Id. at 14-22. The Secretary urges the Commission to reject the argument that MSHA had not cited operators for violating the standard because of lack of proof. Id. at 22-24. Finally, the Secretary contends that Austin Powder had adequate notice of the standard because of its plain language, that the regulatory preamble could not lead to a different interpretation, and that Austin Powder had actual notice of the standard’s requirements from prior litigation and a prior citation. Id. at 25-29.
The primary issue on review is whether the structural requirements for magazines in section 56.6132 apply to the metal container used at the Granite Mountain Quarry to store Electro-Star and Rock Star detonators. Resolution of these issues requires a close reading of the definitions and standards in Subpart E of Part 56, which addresses the use of explosive materials at metal and nonmetal mines, and a review of the regulatory history. In addition, because MSHA’s rules also refer to regulations of the Department of Transportation and the BATF, consideration must also be given to any impact of those regulations on the Secretary’s regulatory scheme.
A. Language of the Regulation
The “language of a regulation . . . is the starting point for its interpretation.” Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). Where the language of a regulatory provision is clear, the terms of that provision must be enforced as they are written unless the regulator clearly intended the words to have a different meaning or unless such a meaning would lead to absurd results. See id.; Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). It is only when the meaning is ambiguous that deference to the Secretary’s interpretation is accorded. See Udall v. Tallman, 380 U.S. 1, 16-17 (1965) (finding that reviewing body must “look to the administrative construction of the regulation if the meaning of the words used is in doubt”) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)); Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C. Cir. 1990) (“Deference . . . is not in order if the rule’s meaning is clear on its face.” (quoting Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984))). The Commission has held that the meaning of a broadly-worded regulation may be determined from its plain language. Nolichuckey Sand Co., Inc., 22 FMSHRC 1057, 1060 (Sept. 2000).
Section 56.6130(a) states that “[d]etonators and explosives shall be stored in magazines.”
30 C.F.R. § 56.6130(a). As the judge correctly concluded, “[t]his standard could not be written
more clearly.” 29 FMSHRC at 281. Moreover, on its face, with the exception of detonator cord,
the regulatory definition of “detonator” encompasses all types of detonators, including the
detonators at issue in this proceeding. The Secretary defines “explosive materials” as
“explosives, blasting agents, and detonators.” 30 C.F.R. § 56.2 (emphasis added).
In section
56.6100, the Secretary defines “detonator” as “[a]ny device containing a detonating charge used
to initiate an explosive.” 30 C.F.R. § 56.6100. The only exclusion from the broad definition is
“detonating cord.” Id.
The definition further specifies that detonators may be either Class A or
Class C, as determined by the Department of Transportation (“DOT”). Id. DOT, in turn, has
included in the first category, Class A, explosives with a mass explosion hazard and in the
second category, Class C, explosives with a minor explosion hazard. 49 C.F.R. §§ 173.50(b)(1),
173.50(b)(4), 173.53.
These divisions appear to be generally consistent with the Secretary’s
references to two categories of detonators: mass-detonating (or sympathetic detonators) and non-mass detonating detonators. See n.4, supra. Thus, relying on DOT regulations, the Secretary has
broadly defined “detonators” to include all types of detonators without regard to their explosive
capacity.
In subpart E, addressing the use of explosives, the Secretary defines “magazine” as “[a]
bullet-resistant, theft-resistant, fire-resistant, weather-resistant, ventilated facility for the storage
of explosives and detonators (BATF Type 1 or Type 2 facility).” 30 C.F.R. § 56.6100 (emphasis
added).
Section 56.6132, the regulation at issue in this proceeding, describes with even greater
specificity the construction requirements for magazines, including the use of “nonsparking
material on the inside” and being “ventilated to control dampness and excessive heating within
the magazine.” Id. at § 56.6132(a)(4), (a)(5). Part 56 broadly defines a “storage facility” as “the entire class of structures used to store explosive materials.” 30 C.F.R. § 56.2.
We must also read these regulations in context.
See Morton Int’l, Inc., 18 FMSHRC
533, 536 (Apr. 1996) (“[R]egulations should be read as a whole, giving comprehensive,
harmonious meaning to all provisions.”). The Secretary refers in the definition of “magazine” to
“BATF Type 1 or Type 2 facility.” 30 C.F.R. § 56.6100. BATF regulations, in turn, describe
“types of magazines” at 27 C.F.R. § 555.203 and specify that Type 1 magazines are permanent
magazines for the storage of high explosives, while Type 2 magazines are mobile and portable
indoor and outdoor magazines for the storage of high explosives. Id. at (a) and (b). The
construction requirements for Type 1 and Type 2 magazines are consistent with the MSHA
requirements for magazines, including requirements for non-sparking material in the interior and
for ventilation. See generally 27 C.F.R. §§ 555.207, 555.208.
The judge concluded that a reading of the plain language of the Secretary’s regulations in the context in which they appear leads to the conclusion that all detonators and explosives must be stored in magazines that are bullet-resistant, fire-resistant, weather-resistant, and ventilated. 29 FMSHRC at 276. The judge’s reasoning and conclusion are correct.
Contrary to Austin Powder’s position in this proceeding, nothing in MSHA’s regulations
exempts non-mass detonating detonators (Class 1.4 explosives) from the magazine storage
requirement. In addition to the reference in the definition of “magazine” at section 56.6100 to a
BATF Type 1 or Type 2 facility, the Secretary has further referenced BATF’s classification of
magazines to specify the requirements for the storage of “blasting agents,” the third category of
explosive materials that is covered in the Secretary’s regulations.
Thus, section 56.2 provides
that a “‘storage facility’ used to store blasting agents corresponds to a BATF Type 4 or 5 storage
facility.”
By its terms, the provisions in section 56.2 that allow the use of a BATF Type 4 or 5
storage facility apply only to “blasting agents,” not to detonators. See also 30 C.F.R. §
56.6130(b) (“Packaged blasting agents shall be stored in a magazine or other facility.”).
In sum, there is no provision in MSHA’s regulations that supports Austin Powder’s position that using a Type 4 storage facility to house Class 1.4 non-mass detonating detonators is permissible. However, Austin Powder would have the Commission read the regulatory history associated with the Part 56 regulations and give precedence to language in the preamble that, it argues, overrides the plain language of the regulations. Commission precedent does not support Austin Powder’s position that language in the preamble to a regulation can override the plain language of the regulation. See Morton Int’l, 18 FMSHRC at 539 (“operators should not be held to examining regulatory history to learn the meaning of a standard that appears to be clear on its face”). See also Pfizer, Inc. v. Heckler, 735 F.2d at 1509 (in rejecting reliance on inflation impact statement accompanying issuance of rule that was clear, court noted, “Where the enacting or operative parts of a statute are unambiguous, the meaning of the statute cannot be controlled by language in the preamble.”) (quoting Assoc. of Am. Railroads v. Costle, 562 F.2d 1310, 1316 (D.C. Cir. 1977)). Despite the clear language of the regulation, we now review the regulatory history of the provisions at issue in part because Austin Powder and the amici claim that they lacked sufficient notice of the magazine storage requirements for non-mass detonating detonators.
B. Regulatory History
In evaluating Austin Powder’s position and the impact of the regulatory history,
prior to
the publication of the proposed rule in 1988, the Secretary made clear that the “existing
standard . . . states that detonators and explosives other than blasting agents shall be stored in
magazines.” 53 Fed. Reg. at 45491. See 30 C.F.R. § 56.6001 (1988).
In 1988, the Secretary
did not propose any change to the magazine storage requirement for detonators. In the January
31, 1991 final rule publication, the Secretary modified the definition of “detonator” to include
language that “detonators may be either ‘Class A’ or ‘Class C.’” 56 Fed. Reg. at 2072. In the
explanatory material accompanying the final rule, the Secretary emphasized that “detonators and
explosives must be stored in a magazine and . . . blasting agents may be stored in a magazine or
other facility.” Id. at 2075 (emphasis added).
Thereafter, the Secretary issued a Program Policy Letter (PPL No. P91-IV-1) to provide
interpretations of, inter alia, “magazine” and “storage facility” in 30 C.F.R. Parts 56 and 57,
which became effective on November 1, 1991.
The PPL addressed in particular whether the
new standards prohibited the use of “Type 4 storage facilities.” In stating that the new standards
did not prohibit their use, the PPL stated:
In the final rule, “storage facility” . . . refers to the entire class of structures used to store explosive materials. “Magazine” refers to a type of storage facility for highly volatile explosive materials. 56/57.6130 requires that detonators and explosives, not explosive materials, be stored in magazines because they are highly volatile and subject to sympathetic detonation. Blasting agents were specifically excluded from this provision because they are less volatile and thus can be stored in structures other than magazines.
Id. at 1-2 (emphasis added). Thus, section 56.6130(a), then in effect, continued to provide that “[d]etonators and explosives shall be stored in magazines.” 30 C.F.R. § 56.6130(a) (1992).
On October 16, 1992, the Secretary proposed to issue new definitions of “magazine” and “storage facility” to clarify usage of the terms in MSHA regulations. “The result is to make clear that MSHA’s use of the term ‘magazine’ corresponds to BATF’s use of Type 1 and Type 2 storage facilities.” 57 Fed. Reg. at 47526. MSHA further proposed to define “storage facility” as “the entire class of structures used to store explosive materials” and, when used specifically to store blasting agents, it referred to a BATF Type 4 or 5 structure. Id. In further explaining the differences between magazines and storage facilities, the Secretary stated that “‘magazine’ refers to a type of storage facility for highly sensitive explosive materials such as explosives and detonators which are subject to sympathetic detonation.” Id. The Secretary concluded by stating that “because blasting agents are not as highly sensitive as detonators and explosives,” they did not have to be stored in magazines or facilities that met the construction and housekeeping criteria of magazines. Id. (emphasis added). Nowhere in the Federal Register publication of the proposed rule did the Secretary state that he was proposing to change the existing standard, 30 C.F.R. § 56.6130(a) (1992), which required that all detonators, including non-mass detonating detonators, be stored in magazines.
In the 1993 final rule publication, consistent with the 1992 proposed rule, the Secretary
added a definition of “magazine” to section 56.6000 “for the storage of explosives and detonators
(BATF Type 1 or Type 2 facility).” 58 Fed. Reg. at 69598. The Secretary responded to several
commenters that MSHA had previously used the terms “magazine” and “storage facility”
synonymously. Id. In distinguishing between a magazine and storage facility, the Secretary
clearly stated that “paragraph (a) of §§ 56/57.6130 requires that detonators and explosives, not
blasting agents, be stored in magazines; while . . . blasting agents may be stored either ‘in a
magazine or other facility.’” Id. While the Secretary further explained that the reason for
differing treatment of blasting agents was because explosives and detonators were “highly
sensitive explosive materials . . . subject to sympathetic detonation,” id. at 69599,
there is no
statement in the preamble that the Secretary sought to revise the well-established magazine
storage requirement for explosives or detonators, including ones that are not mass-detonating.
Further, in the preamble to the 1993 final rule, the Secretary noted that several
commenters objected to the use of the term “storage facility” because it precluded the storage of
non-mass detonating detonators, as permitted by BATF regulations. Id. Accordingly, those
commenters suggested deleting use of the term. In response, the Secretary emphasized that
MSHA’s final rule “conforms to BATF’s construction criteria.” Id. However, the Secretary
noted differences in MSHA’s regulations and those of BATF because MSHA utilizes the term
“storage facility,” which corresponds to BATF Type 4 and 5 facilities. Id. In contrast to BATF’s
more limited use of Type 1 and 2 facilities for storage of “highly sensitive explosives,” “MSHA’s
definition of ‘magazine’ does not prevent the use of magazines to store the full range of
explosive materials.” Id. Significantly, in the following section addressing explosive materials
storage facilities (sections 56/57.6130), the Secretary stated that the rule in effect, by virtue of the
1991 final rule publication, “required detonators and explosives other than blasting agents to be
stored in magazines.” Id.
In agreement with the judge, 29 FMSHRC at 280, we conclude that nothing in the regulatory history indicates that the Secretary’s rules distinguish between mass-detonating detonators and detonators that are not subject to mass detonation. Rather, the Secretary clearly delineated the storage requirements for explosives and detonators versus blasting agents, with the latter category of explosive materials being subject to the least stringent storage requirements. Moreover, neither the storage requirements for detonators in section 56.6130(a) nor the magazine construction requirements in section 56.6132(a) were under consideration for amendment when the preamble language appeared in the Federal Register publication upon which Austin Powder relies. In short, we cannot agree that the regulatory history leads to the conclusion that Austin Powder was not required to store the Electro-Star and Rock Star detonators in magazines. Even if the preamble were unclear as to the regulations at issue, that language cannot override the clear requirements of the regulations. See cases cited p. 8, supra.
C. Fair Notice of the Requirements of the Regulation
The heart of Austin Powder’s due process argument is that “the company lacked fair notice of the Secretary’s intention to depart from the [BATF’s] explosive storage standards and definitions . . . that she indicated in the 1993 rulemaking were being adopted.” A.P. Reply Br. at 2. However, based on our determination that the language of the standard is plain, we conclude that Austin Powder had adequate notice of the storage requirements for detonators. In this regard, the Commission has held that when “the meaning of a standard is clear based on its plain language, it follows that the standard provided the operator with adequate notice of its requirements.” LaFarge Constr. Materials, 20 FMSHRC 1140, 1144 (Oct. 1998); see also Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997) (holding that adequate notice provided by unambiguous regulation). Nor can we conclude that, based on the regulatory history of the explosive standards in Part 56, Austin Powder could reasonably believe that section 56.6130 was being revised to eliminate the requirement that all detonators be stored in magazines that met the criteria in section 56.6132(a).
Further, Austin Powder contends that the enforcement history of the magazine storage
requirement for detonators supports its position that the citations at issue represent a change in
MSHA’s enforcement of section 56.6130 and that it lacked fair notice of MSHA’s position.
Austin Powder’s contention is essentially an estoppel argument that it sought to bolster by trial
testimony that it had undergone prior inspections and had not been cited for storing detonators in
similar storage facilities. However, the Commission has long held that an inconsistent
enforcement pattern by MSHA inspectors does not prevent MSHA from proceeding under an
application of the standard that it concludes is correct. See Nolichuckey Sand, 22 FMSHRC at
1063-64 (citations omitted).
Thus, even if the record supported the assertion that MSHA had
failed to enforce section 56.6130 as written,
the Secretary should not be prevented from
proceeding to enforce the regulation as she has in the present case.
D. Other Arguments
In addition to notice, Austin Powder raises other arguments in response to the judge’s
decision. Austin Powder and the amici challenge MSHA’s enforcement of the magazine
requirements in section 56.6132 to storage facilities containing detonators because of the costs
involved. However, there is a lack of evidence to support any specific cost figure.
Moreover,
the Commission has generally rejected economic reasons as grounds for failing to comply with
regulatory requirements. See Consolidation Coal Co., 22 FMSHRC 328, 333 (Mar. 2000)
(operator engaged in aggravated conduct when it subordinated its responsibility to clean up coal
accumulation to its desire to complete construction); Jim Walter Res., Inc., 19 FMSHRC 1761,
1770 (Nov. 1997) (stating that aggravated conduct was shown when an operator decided to avoid
compliance with the standard in order to continue production). Austin Powder’s and the amici’s
economic defense stands on no better foundation in this proceeding.
Finally, Austin Powder argues in its reply brief that the BATF regulations preempt
MSHA regulations in the area of explosives. A.P. Reply Br. at 10-11. However, Austin
Powder’s preemption argument is a new theory in the case that was not raised before the judge.
Beech Fork Processing, Inc., 14 FMSHRC 1316, 1321 (Aug. 1992). See 30 U.S.C.
§ 823(d)(2)(A)(iii) (“Except 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.”). In any event, Austin Powder failed to raise the issue in its petition for
discretionary review. “Under the Mine Act and the Commission’s procedural rules, review is
limited to the questions raised in the petition and by the Commission sua sponte.” Wyoming
Fuel Co., 16 FMSHRC 1618, 1623 (Aug. 1994), aff’d, 81 F.3d 173 (10th Cir. 1996) (table) citing
30 U.S.C. §§ 823(d)(2)(A)(iii) and (B); 29 C.F.R. § 2700.70(f) (1993). In these circumstances,
we cannot consider the issue on review.
However, we note that Austin Powder is not
foreclosed from raising the preemption issue in a future case or requesting that MSHA undertake
rulemaking to address that issue.
III.
Conclusion
On the basis of the foregoing, we affirm the judge’s decision in all respects.
____________________________________
Mary Lu Jordan, Commissioner
____________________________________
Michael G. Young, Commissioner
Chairman Duffy, concurring:
I concur with my colleagues in affirming the judge’s decision, however, I do so with great
reluctance. At the Commission’s decisional meeting I indicated that I would dissent in this case
and hold that the judge erred in finding a violation of the standard. Since that time I have
concluded that court and Commission precedent, particularly the decisions in Pfizer, Inc. v.
Heckler, 735 F. 2d 1502, 1509 (D.C. Cir. 1984), and Morton Int’l, Inc., 18 FMSHRC 533, 536
(Apr. 1996), argue strongly for the proposition that the clear language of the standard trumps
contradictory language in the preamble.
While I agree with my colleagues that the regulations themselves do not distinguish between mass-explosion detonators and non-mass explosion detonators, I disagree that the preamble to the 1993 final rule supports the proposition that class 1.4 explosive materials, i.e., non-mass explosion detonators, must be stored in Bureau of Alcohol, Tobacco and Firearms (“BATF”) Type 1 or Type 2 storage facilities. Indeed, as I read the preamble, the opposite is true.
Regulatory agencies are loath to admit error, particularly in the rulemaking process. They are especially reluctant to modify the language of a proposed rule even in light of expert public comment supporting a change. This is understandable; an agency puts a great deal of time and effort into the preparation of a proposed rule and would not issue a rule it believed to be defective. However, it seems clear to me that when MSHA proposed in 1988 to drop the definition of “magazine” in its regulations and began to use the terms “magazine” and “storage facility” interchangeably (53 Fed. Reg. 45487, 45490 (Nov. 10, 1988)), the agency set in motion a wealth of confusion that persists to this day.
From the time that proposed rule was issued in 1988, the regulatory history demonstrates that commenters consistently warned MSHA that its new regulatory approach was inconsistent with longstanding policy adopted by BATF, the vanguard federal agency for the regulation of explosives. As I understand it, the confusion arose because BATF defines “magazines” in terms of what can be stored in them (Types 1 through 5), while MSHA began to define various classes of “storage facilities” in terms of their construction characteristics as specified by BATF criteria.
MSHA framed the issue in the agency’s preamble to the final rule issued in 1993:
A few commenters objected to the use of the term “storage facility.” These commenters found the use of the term “storage facility” confusing in that it precluded the storage of non-mass detonating detonators as permitted by 27 CFR part 55, subpart K of the BATF regulations. They suggested deleting the term “storage facility” to be consistent with BATF regulations.
58 Fed. Reg. at 69596, 69599 (Dec. 30, 1993).
What follows in the preamble cannot be read for anything other than an attempt by MSHA to counter the accusation that its standards were inconsistent with those adopted and enforced by BATF:
BATF Type 1 facilities are permanent magazines used for the
storage of high explosives; . . . BATF Type 4 facilities are
magazines used for the storage of low explosives, blasting agents
and non-mass detonating detonators; . . . . MSHA’s final rule does
not require BATF Type 4 storage facilities to be bullet-resistant.
The only storage facilities that need to be bullet-resistant are
magazines (BATF Type 1 and 2 facilities) used for the storage of
highly sensitive explosive material such as explosives and
detonators which are subject to sympathetic detonation.[
]
. . . .
In summary, MSHA believes that the definition of “storage facility” as clarified by this final rule, provides mine operators and miners with objective criteria, consistent with BATF, relative to storage requirements, for the entire range of explosive materials.
Id.
Thus, if the BATF standards allow non-mass detonation detonators to be stored in the Type 4 magazines, and MSHA’s standards are “consistent” with BATF standards, it is easy to understand why Austin Powder and others could have concluded that the detonators referred to in section 56.6130(a) are mass explosion detonators and not non-mass explosion detonators.
Moreover, on the basis of the brief submitted on review by the Institute of Makers of
Explosives (“IME”), I strongly suspect that the position articulated by MSHA in this proceeding
constitutes an abrupt departure from longstanding policy regarding the storage of non-mass
detonating detonators. If anyone can attest to how explosives have been regulated under BATF,
MSHA, and Department of Transportation standards, it is IME.
Nevertheless, since the standard
refers to “detonators” without clarification, I must reluctantly agree that Austin Powder and IME
have relied upon the contradictory evidence in the preamble of the rule to their detriment.
Lastly, as to Austin Powder’s argument that BATF regulations pre-empt MSHA’s regulations as they apply to explosives, I, too, note that the argument was not raised before the judge nor in the operator’s petition for review. I would, however, take judicial notice of the fact that MSHA’s sister agency, the Occupational Safety and Health Administration, recently declared that it was ceding the field of explosives regulation and enforcement to BATF. See 72 Fed. Reg. 18792, 18796 (Apr. 13, 2007). I would encourage MSHA to consider a similar path if for no other reason than to assure that standards are consistent and enforced by the federal agency with preeminent expertise in this area.
____________________________________
Michael F. Duffy, Chairman
Distribution
Adele L. Abrams, Esq.
Law Office of Adele L. Abrams, P.C.
4740 Corridor Place, Suite D
Beltsville, MD 20705
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209-2296
Gilbert P. Sperling, Esq.
Institute of Makers of Explosives
1120 19th Street, N.W., Suite 310
Washington, D.C. 20036
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204