<DOC>
[DOCID: f:cet2000101.wais]

 
ALCOA ALUMINA & CHEMICALS, L.L.C.
September 14, 2001
CENT 2000-101-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                       September 14, 2001

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
            v.                  : Docket No. CENT 2000-101-M
                                :
ALCOA ALUMINA & CHEMICALS,      :
  L.L.C.

BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
        Commissioners


                            DECISION

BY THE COMMISSION:

     This civil penalty proceeding arises under the Federal 
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. 
(1994) ("Mine Act" or "Act").  At issue is whether 
Administrative Law Judge Jacqueline R. Bulluck correctly 
determined that Alcoa Alumina & Chemicals, L.L.C. ("Alcoa") 
violated 30 C.F.R. �� 48.28(a)[1] and 48.31(b).[2]  22 FMSHRC 
1484, 1486-92 (Dec. 2000) (ALJ).   For the following reasons, 
we affirm the judge's decision in result.

                               I.

                Factual and Procedural Background

      Located in Point Comfort, Texas, Alcoa's Bayer Alumina
Plant ("Point Comfort") produces alumina from bauxite.  22 
FMSHRC at 1485. At the plant, the bauxite is ground and mixed
with sodium hydroxide to form a slurry.  Id.  The slurry is 
combined with steam under high heat and pressure, producing 
sodium aluminate. Id. The sodium aluminate is then clarified, 
which removes mud solids from the solution.  Id.; Tr. 173. 
The solution next undergoes precipitation, which produces 
hydrated alumina.  Tr. 173.  After a drying process called 
calcination, alumina is produced. 22 FMSHRC at 1485; Tr. 173.

     On July 13, 1999, the San Antonio Field Office of the
Department of Labor's Mine Safety and Health Administration
("MSHA") received a complaint from a Point Comfort employee 
that certain supervisors had not received refresher training. 
22 FMSHRC at 1485. On that same day, MSHA Inspector Larry Parks
responded to the complaint and conducted an inspection of Point
Comfort. Id. Inspector Parks met with Alcoa safety specialist
Richard Ripley and union representative Mike Monroy and 
discussed the particulars of the complaint.  Id.  He also 
interviewed several employees and reviewed Alcoa's training 
records for the previous year.  Id.  Parks discovered that 
over 80 supervisors had not received annual refresher training 
and six salaried employees had not received hazard training.  
Id. at 1486.

     As a result, the inspector issued Order Nos. 7879697 and
7879698 under Mine Act section 104(g)(1), 30 U.S.C. 
� 814(g)(1),[3] for violations of sections 48.28(a) and 
48.31(b). Id.  Alcoa contested the orders and a hearing was 
held.  The judge found that Point Comfort's processing of 
bauxite was a milling operation, subject to the jurisdiction 
of the Mine Act. Id. at 1485.  She rejected Alcoa's position 
that, because the plant was neither a surface mine nor a 
surface area of an underground mine, but a milling operation, 
it was not subject to MSHA's Part 48 training regulations.  
Id. at 1487.  The judge concluded that 30 C.F.R. � 48.21, the 
scope provision for both sections 48.28(a) and 48.31(b), was
plain and that the term "mine" as used in the provision 
included any operation that constituted a mine under section 
3(h)(1) of the Mine Act, 30 U.S.C. � 802(h)(1).  Id.  She 
determined that Alcoa violated section 48.28(a) because
supervisory and salaried miners had not received annual 
refresher training.  Id.  The judge concluded that the 
violation was significant and substantial ("S&S") as there was 
a reasonable likelihood that supervisory and salaried miners, 
not updated periodically on safe plant procedures, could
be seriously injured by machinery or chemicals.  Id. at 1488.
Likewise, the judge determined that Alcoa committed an S&S
violation of section 48.31(b) because six salaried employees 
had not received hazard training. Id. at 1491-92.

     Alcoa filed a petition for discretionary review, 
challenging the judge's finding that 30 C.F.R. Part 48 applied 
to Point Comfort, which the Commission granted.

                               II.

                           Disposition

     Alcoa argues that the training requirements contained in
Part 48 do not pertain to Point Comfort, which is a mill. PDR 
at 1-2, 5-6.  It contends that Part 48 plainly applies to
underground or surface mines or surface areas of underground
mines and, as MSHA Inspector Parks admitted, Point Comfort does
not fall within any of those mining categories.  Id. at 2-4, 6;
A. Br. at 5.   The operator also argues that MSHA expressly
includes "mills" and "milling operations" in other standards 
and consequently the omission of mills and milling operations 
from  Part 48 implies that it does not apply to a milling 
operation like Point Comfort.  A. Br. at 7-8; A. Reply Br. at 
9-12. Accordingly, Alcoa requests that the Commission vacate 
the orders and proposed penalty assessments.  A. Br. at 9; A. 
Reply Br. at 12.

     The Secretary responds that the judge correctly determined
that Part 48 plainly applies to Point Comfort.  S. Br. at 4-8.
She asserts that the judge's determination is supported by the
Mine Act, the purpose of Part 48, and the preamble to the final
rule, which states that milling operations are subject to Part
48's requirements. Id. at 8-9, 11. The Secretary contends that,
in standards such as Part 48 where MSHA does not specify milling
operations for special treatment, milling operations are to be
treated the same as other facilities covered under the standard.
Id. at 10 n.5.   In the alternative, the Secretary argues that,
if the Commission determines that the applicability of Part 48
is not clear, it should accept the Secretary's reasonable
interpretation of Part 48, i.e., that the standard applies to
milling operations.  Id. at 16 n.9.

     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 Dyer v. United States, 832 F.2d 1062, 1066 (9th
Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct.
1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).
If, however, a standard is ambiguous, courts have deferred to 
the Secretary's reasonable interpretation of the regulation.  
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. 
Cir. 1994); accord Sec'y of Labor v. Western Fuels-Utah, Inc., 
900 F.2d 318, 321 (D.C. Cir. 1990) ("agency's interpretation of 
its own regulation is `of controlling weight unless it is
plainly erroneous or inconsistent with the regulation'" (quoting 
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (
other citations omitted).  The Secretary's interpretation of a
regulation is reasonable where it is "logically consistent with
the language of the regulation and . . . serves a permissible
regulatory function."  See Gen. Elec. Co. v. EPA, 53 F.3d 1324,
1327 (D.C. Cir. 1995) (citations omitted).  The Commission's
review, like the courts', involves an examination of whether the
Secretary's interpretation is reasonable.  See Energy West, 40
F.3d at 463 (citing Sec'y of Labor on behalf of Bushnell v.
Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439 (D.C. Cir.
1989)); see also Consolidation Coal Co., 14 FMSHRC 956, 969 
(June 1992) (examining whether Secretary's interpretation was
reasonable).  Additionally, "a regulation must be interpreted 
so as to harmonize with and further and not to conflict with 
the objective of the statute it implements."  Emery Mining 
Corp. v. Sec'y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984) 
(citation omitted).

      Sections 48.28(a) and 48.31(b) are contained in subpart 
B of the Secretary's Part 48 standards.  The scope of subpart 
B is set forth in section 48.21.  That section states in 
pertinent part:

          The provisions of this subpart B set forth
          the mandatory requirements for submitting and
          obtaining approval of programs for training
          and retraining miners working at surface
          mines and surface areas of underground mines.
          . . .  The requirements for training and
          retraining miners working in underground
          mines are set forth in subpart A of this
          part.  This part does not apply to training
          and retraining of miners at shell dredging,
          sand, gravel, surface stone, surface clay,
          colloidal phosphate, and surface limestone
          mines, which are covered under 30 C.F.R. Part
          46.

30 C.F.R. � 48.21 (emphasis added).  Additionally, "miner" is
defined in pertinent part for purposes of both standards at 
issue by 30 C.F.R. � 48.22(a)(1) & (a)(2) as a person working 
in a "surface mine."  We must therefore decide whether Point 
Comfort is a "surface mine" for purposes of the training 
requirements contained in Part 48, subpart B.

     Our first inquiry is whether the text of section 48.21 is
plain.  Both parties advance plain language interpretations of
the standard to support their respective positions.  Under the
strict literal approach, advocated by the Secretary, a mill is 
a "mine," as defined in Mine Act section 3(h)(1), and because 
it is located on the surface of the earth, the mill must be a 
"surface mine."  However, the statutory definition of a mine 
was not expressly incorporated into the Secretary's Part 48 
regulations. Compare 30 C.F.R. � 50.2(a) (applying Mine Act 
definition of mine to Part 50).  Additionally, neither section 
48.21, nor the definitional provision for Part 48, subpart B, 
contained in section 48.22, define the terms "surface mine," 
"surface," or "mine." Without sufficient definition, confusion 
may result because "surface mining" is a term of art in the 
mining industry that refers to excavation of a mineral on the 
surface as opposed to underground.  See Am. Geological Inst., 
Dictionary of Mining, Mineral and Related Terms 554 (2d ed. 
1997) (defining surface mining as the "mining in surface 
excavations").  Indeed, the inspector alluded to this term of 
art when he testified on cross-examination that surface mining 
consisted of the removal of metal or mineral from the surface 
of the earth and that Point Comfort was not a surface mine. 
Tr. 40-44.  Ambiguity is also possible because, as Alcoa points 
out, section 48.21 does not expressly include mills or milling 
operations within its scope, whereas other standards explicitly 
apply to them.  See 30 C.F.R. �� 50.30-1(g) and 56.20012 
(specifying requirements for "mill operations" and "milling," 
respectively).  However, we are not convinced by Alcoa's plain
language interpretation, particularly given its failure to 
address the statutory definition of a mine, which includes 
milling operations.

     Because Part 48, subpart B is silent on whether a milling
operation constitutes a surface mine and the term surface mine 
is open to a number of interpretations, we disagree with the 
judge and the parties that section 48.21 is plain. We conclude
that the scope provision of subpart B is ambiguous on this
issue. See Walker Stone Co. v. Sec'y of Labor, 156 F.3d 1076, 
1081 (10th Cir. 1998) (providing that regulatory standard was 
ambiguous when neither of the proffered  "plain" language 
interpretations was clearly required or prohibited by the 
standard's language).

     We turn next to the question whether the Secretary's
interpretation of section 48.21 is reasonable. The Secretary's
interpretation (that a milling operation is a surface mine 
under Part 48) is consistent with the preamble to the 
regulations.  The preamble to Part 48 explains the coverage of 
the rules:

          These rules are applicable to all facilities
          which are covered under the Mine Act.  MSHA
          does not have the authority to exempt or
          exclude operations otherwise covered by the
          Act from the training requirements.  Thus,
          milling, dredging and clay winning operations
          are subject to these requirements.

43 Fed. Reg. 47,454, 47,456 (Oct. 13, 1978) (emphases added).
Thus, the preamble explicitly states that milling is subject to
Part 48 training requirements.[4]  Since the preamble was 
issued when Part 48 was first promulgated, the Secretary has
historically and consistently applied her interpretation.  
Id.[5]

     We must also examine whether the Secretary's interpretation
of Part 48 is consistent with Mine Act section 115, 30 U.S.C. 
� 825, the statutory section that Part 48 implements. See 43 
Fed. Reg. at 47,454 (preamble indicating that Part 48 implements 
Mine Act section 115); Emery, 744 F.2d at 1414 (construing Part
48 in light of Mine Act section 115).  Section 115(a) states: 
"Each operator of a coal or other mine shall have a health and
safety training program which shall be approved by the 
Secretary."  30 U.S.C. � 825(a).  The section requires that 
"all miners" are to receive annual refresher training. 30 U.S.C. 
� 825(a)(3). Miners are defined in section 3(g) of the Act as 
"any individual working in a coal or other mine."  30 U.S.C. 
� 802(g).  Because mills are included in the definition of 
"mine" under Mine Act section 3(h)(1), the Secretary's 
interpretation, i.e, that the phrase "surface mines" should be 
read to include mills, is consistent with the Mine Act.

     On the other hand, Alcoa's construction, which excludes
mills from Part 48's coverage, would permit operators to deny
training to miners at milling operations.  This construction
directly contravenes the Mine Act's mandate that all miners
receive training.  30 U.S.C. � 825(a).  We find problematic
Alcoa's assertion that, under its interpretation, miners who 
work in milling operations located as part of surface mines
or underground mines would be subject to Part 48 training
requirements, but miners who work at stand-alone milling
operations, like Point Comfort, would not receive Part 48
training.  A. Reply Br. at 3, 11-12.  Alcoa's interpretation
would result in piecemeal protection for miners at milling
operations, a result at odds with the Mine Act and the
Congressional intent in enacting the Act.[6]

      Because the Secretary's interpretation that a milling
operation qualifies as a surface mine under Part 48 is
reasonable, logically consistent with the language of the
regulation, and serves a permissible regulatory function in
furtherance of the Mine Act's safety goals, we defer to it.[7]
Rock of Ages Corp., 20 FMSHRC 106, 112 (Feb. 1998), aff'd in
part, 170 F.3d 148 (2d Cir. 1999); Cannelton, 867 F.2d at 1435.
Accordingly, we affirm the judge's decision that Part 48, 
subpart B applies to Point Comfort, and that Alcoa committed
S&S  violations of sections 48.28(a) and 48.31(b) by failing 
to provide the requisite training.[8]

                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's decision 
in result.


                              ____________________________________
                              Theodore F. Verheggen, Chairman
                              
                              ____________________________________
                              Mary Lu Jordan, Commissioner

                              ____________________________________
                              James C. Riley, Commissioner
                              
                              ____________________________________
                              Robert H. Beatty, Jr., Commissioner



Distribution

Harold J. Engel, Esq.
Arant, Fox, Kintner, Plotkin & Kahn, PLLC
1050 Connecticut Ave., N.W.
Washington, D.C.  20036

Tina Peruzzi, Esq.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

Administrative Law Judge Jacqueline R. Bulluck
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [1]: Section 48.28(a), entitled "Annual Refresher Training
of Miners," provides in part: "Each miner shall receive a 
minimum of 8 hours of annual refresher training."

     [2]:  Section 48.31, entitled "Hazard Training," provides 
in part: "(a) Operators  shall  provide  to  .  .  .  miners 
. . . a training program before such miners commence their work 
duties. . . .

(b) Miners shall receive the instruction required by this section
at least once every 12 months."

     [3]:  Section 104(g)(1) provides in pertinent part:

          If, upon any inspection or investigation .  .
          .   ,   the   Secretary   or   an  authorized
          representative shall find employed  at a coal
          or  other  mine  a miner who has not received
          the requisite safety  training  as determined
          under section 115 of this Act, the  Secretary
          or  an authorized representative shall  issue
          an order  under  this  section which declares
          such miner to be a hazard  to  himself and to
          others,  and  requiring  that such  miner  be
          immediately withdrawn from  the coal or other
          mine,  and be prohibited from  entering  such
          mine until  an  authorized  representative of
          the Secretary determines that  such miner has
          received the training required by section 115
          of this Act.

     [4]:  The preamble's explicit inclusion of milling
contradicts Alcoa's arguments in its PDR and opening  brief  
that  the preamble should  be read to exclude milling.  PDR  
at 4-6; A. Br at   6-8.    In  its  reply,  Alcoa  asserts,
inconsistently  with its prior argument, that the  preamble  
should  not  in  fact  be considered.  A. Reply Br. at 4-6.

     [5]: Additionally,  the  Secretary's construction is not 
inconsistent with the literal terms of section 48.21.

     [6]:   The  legislative  history  reveals  that Congress 
was aware of and concerned about the health  and  safety  
hazards  for  miners  in mills.  H. Rep.  No. 95-312, at 6-9, 
11-13 (1977),  reprinted  in  Senate   Subcomm.  on Labor,  
Comm.  on  Human  Res.,  95th  Cong., Legislative   History  
of  the  Federal  Mine Safety and Health  Act  of  1977,  at 
362-65, 367-369  (1978)  ("Legis.  Hist.") (bringing mills 
specifically under the jurisdiction  of the  Mine  Act  and 
discussing the potential hazards of mills including  toxic 
exposure to iron  oxide,  radon, mercury and  manganese).
Congress also considered  training  of miners to   be  of  
paramount  importance  for  mine safety.   See Legis. Hist. 
at 362 (citing one  of the causes  for  the  Sunshine Silver 
Mine fire, in which 91 miners lost their lives, to be the 
failure to train miners in self-rescue and  survival  
techniques);  id.  at  637-638 (stating that "the  Committee 
considers  the presence   of  miners  in  a  dangerous  mine
environment   who   have  not  had  even  the rudimentary 
training of self-preservation and safety  practices 
inexcusable.").   In  fact, Congress  provided  MSHA with 
one of the most potent tools under the  Act  -  a  withdrawal
order - for training violations.  30 U.S.C. � 814(g).

     [7]: Chairman Verheggen states:  For the  reasons stated 
in my dissent in Cyprus Cumberland Resources Corp., 21 FMSHRC 
722, 737-38 (July 1999),   appeal   docketed  sub  nom.  RAG
Cumberland  LP  v. FMSHRC, No. 00-1438  (D.C. Cir. Oct. 10, 
2000),  I would "accord special weight,"  rather than defer,
to the Secretary's interpretation of the regulations at issue 
here. See Helen Mining Co., 1 FMSHRC 1796, 1801 (Nov. 1979).

     [8]: In cases involving ambiguous standards, the issue  
of  whether  the operator had adequate notice  of  the  
regulatory  requirements  at issue may arise.  An agency's 
interpretation may be permissible but  nevertheless may fail
to  provide  the  notice needed  to support imposition of a 
civil penalty.  Gen. Elec., 53  F.3d  at  1333-34;  Phelps 
Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193  (9th Cir. 1982).
Alcoa has not raised the issue  of  notice on this  appeal.  
30 U.S.C. � 823(d)(2)(A)(iii). Nevertheless, even if it had,
the record reveals  that at least since 1992, Alcoa  had
actual notice  o  the Secretary's interpretation of Part 48, 
including that the training requirements applied to salaried 
and supervisory employees.   22  FMSHRC  at 1490. Moreover,   
with regard to ts hourly employees,  Alcoa has complied with 
Part 48 for many years.  Tr. 92-93, 99, 155; see also S. Ex. 
6 (Part 48 training  plan  in force at Alcoa's Point Comfort 
Plant).