<DOC>
[DOCID: f:harlan.wais]
HARLAN CUMBERLAND COAL COMPANY
September 25, 1997
KENT 94-996
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
September 25, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
: Docket Nos. KENT 94-996
v. : KENT 94-997
: KENT 94-998
HARLAN CUMBERLAND COAL : KENT 94-1024
COMPANY : KENT 94-1307
BEFORE: Jordan, Chairman; Marks, Riley and Verheggen,
Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal
Mine Safety and Health Act of 1977 ("Mine Act" or "Act"), 30
U.S.C. � 801 et seq. (1994). At issue is whether
Commission Administrative Law Judge Roy J. Maurer
correctly found that Harlan Cumberland Coal Company
("Harlan Cumberland") violated 30 C.F.R. �� 70.207(a)
and 70.208(a)[1] when the Department of Labor's Mine
Safety & Health Administration ("MSHA") failed to
receive several respirable coal dust samples that
Harlan Cumberland was required to submit to MSHA on a
bimonthly basis. 17 FMSHRC 1551, 1554, 1557 (September
1995) (ALJ). Also at issue is whether the $3000 in
penalties assessed by the judge against Harlan
Cumberland for its alleged violations are supported by
substantial evidence. Id. at 1555, 1558. The
Commission granted Harlan Cumberland's petition for
discretionary review challenging these determinations.
For the reasons that follow, the judge's findings of
violations are affirmed and his penalty assessments are
vacated and remanded.
I.
Factual and Procedural Background
Harlan Cumberland operates the C-2 Mine in eastern
Kentucky near the town of Gray's Knob. On November 16,
1993, Eddie Sargent, Harlan Cumberland's safety director,
certified on Dust Data Cards that designated area
samples were taken that same day at sampling points
904-0 and 904-1 in the C-2 Mine pursuant to section
70.208(a). Ex. R-1; Tr. 115-117. During December
1993, Matthew Coots, a section foreman at the C-2 Mine,
and Jeremy Madon, the superintendent of Harlan
Cumberland, certified on Dust Data Cards that five
designated occupation respirable coal dust samples were
taken on Mechanized Mining Unit ("MMU") 004-0 in the
C-2 Mine pursuant to section 70.207(a). Ex. R-2; Tr.
120-23.
MSHA did not receive either of the designated area
samples, or two of the five designated occupation samples.
17 FMSHRC at 1553, 1556-57. Nor did Harland Cumberland
offer any direct evidence at the hearing on this matter
that the samples MSHA failed to receive were ever
actually mailed. Id. at 1554, 1557. The company's
standard procedure was to transport its respirable dust
samples to its offices in Gray's Knob, a task generally
done by Sargent. Id. at 1554. The dust cassette card
numbers for each sample were typically logged into a
book for the particular mine from which the sample had
been collected; then the sample would be placed in a
box designated for outgoing mail. Id. The practice
was for Clyde Bennett, Harlan Cumberland's general
manager, to then take the dust samples from the
company's office to a nearby post office and place them
in the U.S. mail for non-certified delivery. Id., Tr.
153.
On December 9, 1993, in response to two Advisories
of Noncompliance sent out by MSHA's Respirable Dust
Processing Laboratory, MSHA Inspector Calvin E. Riddle
issued two citations, Nos. 9885355 and 9885356,
alleging that Harland Cumberland violated section
70.208(a) because it failed to take a valid respirable
dust sample during the October/November 1993 bimonthly
sampling cycle for sampling points 904-0 and 904-1. 17
FMSHRC at 1553. On January 14, 1994, in response to
another Advisory of Noncompliance, Riddle issued
Citation No. 9885368 alleging Harland Cumberland
violated section 70.207(a) because it failed to take
five valid respirable dust samples during the
November/December 1993 bimonthly sampling cycle for MMU
004-0. Id. at 1556-57. The Secretary subsequently
proposed $1000 penalties for each of the alleged
violations of section 70.208(a). S. Pet. for
Assessment of Penalty, Ex. A (August 18, 1994). The
Secretary also proposed a $3500 penalty for the alleged
violation of section 70.207(a). S. Pet. for Assessment
of Penalty, Ex. A (August 24, 1994). Harlan Cumberland
contested each of these penalties.
The judge noted that sections 70.207(a) and 70.208(a)
require submission of valid respirable dust samples and
concluded that, to determine the validity of a sample,
it must be received and examined by MSHA. 17 FMSHRC at
1554, 1557. Finding that MSHA received none of the
samples at issue, the judge determined that Harlan
Cumberland violated sections 70.207(a) and 70.208(a).
Id. at 1554-55, 1557. The judge concluded that the
violations of section 70.208(a) resulted from Harlan
Cumberland's "moderate" negligence. Id. at 1555. He
also found that the company had a "propensity to
repeatedly violate this same section of the standards."
Id. Noting that he had considered "all the statutory
criteria in section 110(i) of the Mine Act," 30 U.S.C.
� 820(i), but without making any separate findings of
fact on any of the criteria except the negligence
criterion, the judge assessed a penalty of $1000 for
each violation of section 70.208(a). Id. The judge
concluded that Harlan Cumberland's violation of section
20.207(a) was "serious" and due to the company's
"moderate" negligence. Id. at 1557. Without making
any other findings on the penalty criteria, he assessed
a $1000 penalty for this violation. Id. at 1558.
II.
Disposition
Harlan Cumberland argues that under the plain meaning
of sections 70.207(a) and 70.208(a), it complied with the
standards when it took the samples and placed them in
the mail. H.C. Br. at 8-13. The company faults the
judge's interpretation of the cited standards as
requiring MSHA's receipt of a sample to render the
sample "valid," arguing that it is impossible for an
operator to guarantee that MSHA will receive a sample.
Id. at 11-13. Harlan Cumberland also argues that the
penalty assessed by the judge is excessive and not
supported by substantial evidence. Id. at 13-14. The
Secretary responds that "MSHA cannot determine whether
a dust sample is valid for purposes of Sections 70.207
and 70.208 unless it receives the sample." S. Br. at
10. The Secretary argues that the Commission should
defer to this interpretation of sections 70.207(a) and
70.208(a), and reject Harlan Cumberland's argument that
operators comply with these standards merely by
collecting samples and placing them in the mail. Id.
at 14, 17. The Secretary also argues that substantial
evidence supports the judge's conclusion, regarding his
penalty assessment for the violations of section
70.208(a), that Harlan Cumberland had "a persistent
problem of failure to submit valid dust samples." Id.
at 17-18 n.11. The Secretary contends the judge
correctly determined that the violation of section
70.207(a) was serious "because it rendered the dust
standards unenforceable." Id.
A. Violations
We do not agree with Harlan Cumberland's contention that
it complied with sections 70.207(a) and 70.208(a) merely by
taking the requisite respirable dust samples and placing
them in the mail. Instead, the plain language of these
standards, when read in conjunction with the provision in
Part 70 defining "valid respirable dust sample," requires
receipt and examination by MSHA. The Commission has
recognized that 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. Consolidation Coal Co.,
18 FMSHRC 1541, 1545 (September 1996) (citations omitted).
It is only when the plain meaning is doubtful or ambiguous
that the issue of deference to the Secretary's
interpretation arises. Pfizer Inc. v. Heckler, 735 F.2d
1502, 1509 (D.C. Cir. 1984). Since the meaning of sections
70.207(a) and 70.208(a) is clear and unambiguous, we need
not address the Secretary's contention that her
interpretation of the standards is entitled to deference.
At issue here is whether Harlan Cumberland complied with
the requirements of sections 70.207(a) and 70.208(a) to take
"valid respirable dust samples." The term "valid respirable
dust sample" is defined elsewhere in MSHA's Part 70
regulations as "a respirable dust sample collected and
submitted as required by [Part 70], and not voided by MSHA."
30 C.F.R. � 70.2(p). Thus, to comply with sections
70.207(a) and 70.208(a), three elements must be met. First,
an operator must collect respirable dust samples in
accordance with the many requirements of Part 70 regulating
how, where, by whom, and under what conditions such samples
are to be collected. See 30 C.F.R. �� 70.201-70.208.
Second, an operator must submit its samples to MSHA. This
requirement is addressed by section 70.209(a), which
requires that "[t]he operator shall transmit within 24 hours
after the end of the sampling shift all samples collected to
fulfill the requirements of this part . . . to [MSHA's]
Respirable Dust Processing Laboratory, . . . P.O. Box 18179,
Pittsburgh, Pennsylvania . . . ." 30 C.F.R. � 70.209(a).
Finally, to be valid, an operator's samples must not be
voided by MSHA for some reason. A dust sample taken
pursuant to section 70.207(a) will be voided, for example,
if no production takes place on the shift sampled. See Ex.
G-15, Advisory No. 0051.
The judge construed sections 70.207(a) and 70.208(a) as
requiring that operators' samples be received by MSHA in
order to determine their validity. 17 FMSHRC at 1554, 1557.
The judge also defined a valid sample as one that "complies
with the appropriate dust standard." Id. at 1554. Although
this definition is incorrect - validity depends not on
compliance with the dust standards of Part 70, but rather on
MSHA's determination of whether any circumstances warrant
voiding a particular sample - we nevertheless find that the
judge reached the proper conclusion. MSHA's definition of
"valid respirable dust sample" includes the clear and
unambiguous requirement that, to be valid, a sample must not
be voided by MSHA. It follows that MSHA cannot determine
whether any circumstances warrant voiding a dust sample
unless it receives and examines the sample. Any risk that
the samples might not reach MSHA properly lies with the
operator. Once received by MSHA, the agency must then
assume responsibility for the orderly processing of the
samples to determine their validity. Accordingly, we
conclude that the judge properly determined that Harlan
Cumberland violated sections 70.207(a) and 70.208(a) when
MSHA failed to receive the samples at issue.
B. Penalties
The determination of the amount of the penalty that should
be assessed for a particular violation is an exercise of
discretion by the trier of fact, bounded by proper
consideration of the statutory criteria of section 110(i) of
the Mine Act and the deterrent purposes underlying the Act's
penalty assessment scheme. Sellersburg Stone Co., 5 FMSHRC
287, 294 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).
Section 110(i) requires Commission judges to consider the
following six criteria in assessing appropriate civil
penalties:
[1] the operator's history of previous
violations, [2] the appropriateness of such
penalty to the size of the business of the
operator charged, [3] whether the operator
was negligent, [4] the effect on the
operator's ability to continue in business,
[5] the gravity of the violation, and [6] the
demonstrated good faith of the person charged
in attempting to achieve rapid compliance
after notification of a violation.
30 U.S.C. � 820(i). Findings of fact on each of these statutory
criteria must be made. Sellersburg, 5 FMSHRC at 292.
Here, the judge made no findings for any of the violations
on the appropriateness of the penalties he assessed to Harlan
Cumberland's size, whether the company showed good faith in
abating the violations, or the company's history of previous
violations. These omissions necessitate a remand so that the
requisite findings can be made.
Although the judge also made no findings on the effect of
the penalties he assessed on Harlan Cumberland's ability to stay
in business, the parties stipulated that a reasonable penalty
would have no affect on the company's survival. Ex. J-1 4. On
remand, this must be taken into consideration when the penalties
are reassessed.
The judge made no gravity findings with respect to the two
violations of section 70.208(a). He concluded that Harland
Cumberland's violation of section 70.207(a) was "serious." 17
FMSHRC at 1557. Although the gravity criterion is frequently
analyzed in terms of "seriousness" (see Consolidation Coal Co.,
18 FMSHRC at 1549), the judge offered no specific factual
findings in support of his conclusion. Such supporting findings
are required. Sellersburg, 5 FMSHRC at 292; see also
Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994)
(a judge must analyze and weigh the relevant testimony of record,
make appropriate findings, and explain the reasons for his
decision). We thus direct the judge to make specific findings on
the gravity criterion on remand.
The judge found that Harlan Cumberland was moderately
negligent in connection with each violation. 17 FMSHRC at 1555,
1557. He offered no explanation for his finding of moderate
negligence with respect to Harlan Cumberland's violation of
section 70.207(a), which we direct him to do on remand. In
explanation of his negligence findings with respect to the two
violations of section 70.208(a), the judge stated that "[t]he
record is clear that MSHA did not receive the subject dust
cassettes, and that, without more, is enough for me to find
ordinary or `moderate' negligence." Id. at 1555. We find this
analysis of the negligence criterion inadequate.
The judge found that Harlan Cumberland took the requisite
samples. 17 FMSHRC at 1555. Thus, the only omission for which
the judge could have found Harlan Cumberland negligent is failure
to mail the samples. But the judge made no finding regarding
whether the samples were mailed. The judge observed that Harlan
Cumberland "was unable to establish that the cassettes were
actually mailed to MSHA." Id. at 1555. But he failed to analyze
and weigh the disputed circumstantial evidence in the record on
this question. On the one hand, Harlan Cumberland offered
evidence that respirable dust samples were routinely mailed
according to a well-established procedure. See Tr. 148-49. On
the other hand, the Secretary argued that Harlan Cumberland
failed to adduce any evidence that the samples at issue were
either logged according to the company's mailing procedures or
actually mailed, and that, thus, "the weight of the
circumstantial evidence demonstrates the cassettes were not
mailed." S. Proposed Findings of Fact and Conclusions of Law at
4-6.
If the company actually mailed the samples, it was not at
all negligent. It would be inequitable to impute to Harlan
Cumberland the negligence of the U.S. Postal Service in failing
to deliver the samples. Any failure by the company to place the
samples in the mail, however, would constitute some degree of
negligence. We therefore direct the judge to make specific
findings on this issue on remand.
But this is not the end of the inquiry concerning whether
Harlan Cumberland was negligent, or the degree of its negligence.
The Commission has held that "a history of similar violations at
a mine may put an operator on notice that it has a recurring
safety problem in need of correction and thus, this history may
be relevant in determining the degree of the operator's
negligence." Peabody Coal Co., 14 FMSHRC 1258, 1264 (August
1992). Regarding his assessment of penalties for the violations
of section 70.208(a), the judge noted that he considered Harlan
Cumberland's "propensity to repeatedly violate this same
section." 17 FMSHRC at 1555. But the judge failed to explain
the basis of this finding, nor did he relate it to the negligence
criterion.
Although Harlan Cumberland's C-2 Mine had been cited once
before for a violation of section 70.207(a) when MSHA did not
receive samples as required (see Ex. G-13), the record contains
no prior violations by the C-2 Mine of section 70.208(a). Even
if the judge had reasoned that a prior violation of section
70.207(a) should have put Harlan Cumberland on notice that it
needed to take greater efforts to ensure the MSHA received its
respirable dust samples collected pursuant to section 70.208(a),
one prior violation does not establish a "propensity to
repeatedly violate" the cited standard. However, several of
Harlan Cumberland's other mines had also been cited during 1993
for similar violations of both standards. See Exs. G-12, G-14,
G-16, G-17, G-18, and G-19.[2] These other violations could have
placed Harlan Cumberland on notice of a problem with its mailing
of respirable dust samples. However, the judge failed to explain
whether this was his rationale, and if so, how the violations at
other mines could have put the C-2 Mine on notice of a problem.
We therefore direct the judge to make specific findings on this
issue on remand.
III.
Conclusion
For the foregoing reasons, we affirm the judge's conclusion
that Harlan Cumberland violated sections 70.207(a) and 70.208(a),
and we vacate his penalty assessment and remand for reassessment
consistent with our decision.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
**FOOTNOTES**
[1]: Section 70.207(a) states in relevant part: "Each
operator shall take five valid respirable dust samples from the
designated occupation in each mechanized mining unit during each
bimonthly [sampling] period." 30 C.F.R. � 70.207(a). Section
70.208(a) states in relevant part: "Each operator shall take one
valid respirable dust sample from each designated area on a
production shift during each bimonthly [sampling] period."
30 C.F.R. � 70.208(a).
[2]: The C-2 Mine was cited on May 18, 1993 for a violation
of section 70.207(a), but this violation was based on a sample
being received but voided because of "invalid production." Ex.
G-15. This violation is thus irrelevant for purposes of
determining whether Harlan Cumberland was on notice that it
needed to take greater efforts to ensure the MSHA received its
respirable dust samples.