<DOC>
[DOCID: f:lake9666.wais]
AKZO NOBEL SALT, INC.
August 6, 1999
LAKE 96-45-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
August 6, 1999
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. LAKE 96-45-RM
: LAKE 96-65-RM
AKZO NOBEL SALT, INC. : LAKE 96-66-RM
: LAKE 96-80-RM
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners
DECISION
BY: Jordan, Chairman; Riley, Commissioner
This consolidated civil penalty and contest 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 the decision of Administrative Law Judge George A.
Koutras to vacate a citation issued to Akzo Nobel Salt, Inc.
("Akzo"), charging a violation of the two-escapeway requirement
of 30 C.F.R. � 57.11050(a).[1] 18 FMSHRC 1950, 2016-27
(Nov. 1996) (ALJ). The Commission granted the Secretary of
Labor's petition for discretionary review ("PDR") in Docket
No. LAKE 96-66-RM challenging that decision. For the
following reasons, we reverse the judge's decision.
I.
Factual and Procedural Background
Most of the relevant facts were stipulated before the
judge and are not in dispute. 18 FMSHRC at 1952-56. Akzo
operates an underground salt mine called the Cleveland mine
in Cleveland, Ohio. Id. at 1952. At the time of the alleged
violation, underground employment at the mine was approximately
174 on two production shifts and three maintenance shifts.
Id.; Jt. Stip. No. 11. Akzo's Cleveland mine has two hoists:
one in the 1853-foot production shaft and one in the 1805-foot
service shaft. 18 FMSHRC at 1952. In the event of an emergency,
the hoist in the service shaft is to serve as the primary
escapeway for miners, while the hoist in the production shaft
provides an emergency escapeway. See Vol. I, Doc. Tab U at 1.
On November 6, 1995, counsel for Akzo wrote Vernon Gomez,
the Administrator for Metal and Nonmetal Mines with the
Department of Labor's Mine Safety and Health Administration
("MSHA"), regarding MSHA's enforcement position with respect
to section 57.11050(a) when an escapeway is taken out of
service for maintenance at a mine with only one other
escapeway. 18 FMSHRC at 1955; see Vol. I, Doc. Tab N.
According to Akzo, due to the construction of the wire ropes
used with its escapeway hoists, it had to periodically take
the hoists out of service to shorten or otherwise adjust the
ropes so they were tight and of equal length. 18 FMSHRC at
2053. On December 8, 1995, Gomez responded to that letter.
18 FMSHRC at 1955; see Vol. I, Doc. Tab S ("Gomez Response").
The Gomez Response sets forth MSHA's interpretation of section
57.11050(a) that is referred to as the "1-hour rule" as follows:
[With respect to] the need for evacuating
miners . . . during hoist outages when the
minimum requirements for escapeways could not
be met because the hoist was unavailable for
use in one of the two escapeways[,] . . .
[w]e believe that [section 57.11050(a)] does
not authorize maintenance to interfere with a
mine operator's ability to use the hoist in
the event of an emergency if it is part of,
or one of, the two required escapeways.
. . . [A]s a practical application of
this standard, if a hoist could be returned
to service within 1 hour of the need to be
used then evacuation of the mine would not be
required.
18 FMSHRC at 2019-20; Vol. I, Doc. Tab S at 4-5. On December
15, 1995, counsel for Akzo informed the Secretary that Akzo
planned a hoist outage over the upcoming holidays that would
provide the basis for a Commission test case for MSHA's
interpretation of section 57.11050(a). 18 FMSHRC at 1955.
During the evening and early morning of December 24 and
25, 1995, Akzo took the production hoist out of service for
approximately 3-1/2 hours. Id. It was stipulated that there
was a period during which it would not have been possible to
put the hoist back into service in less than 1 hour if it
became necessary to use. Id. While maintenance work on the
production hoist was being performed, three miners performed
work underground that did not involve the production hoist,
including checking pumps and fans and conducting preventive
maintenance on the service hoist. Id. No salt extraction or
cutting or welding occurred during the outage. Id.
Akzo reported the incident to MSHA. Id. MSHA investigated
the matter and subsequently issued Citation No. 4546276 alleging
a violation of section 57.11050(a). Id. at 1956. The citation
was issued pursuant to section 104(a) of the Mine Act, 30 U.S.C.
� 814(a), and states that Akzo "failed to comply with [section
57.11050(a)] because the miners who were underground were not
provided with two properly maintained escapeways to the surface
to use in the event of an emergency for a period in excess of
one hour." Id. at 1957; Vol. I, Doc. Tab U at 1.[2]
Akzo contested the citation, and extensive pretrial
discovery ensued.[3] Among those deposed were a number of
MSHA officials and inspectors, who were questioned at length
regarding MSHA's past and present enforcement positions with
respect to section 57.11050(a). See 18 FMSHRC at 1958-83,
1990-93. Through their testimony, as well as by documents
submitted as exhibits, Akzo sought to show not only that MSHA
staff did not have a clear understanding of the application
and enforcement of the 1-hour rule, but that the 1-hour rule
was a change in MSHA's previous interpretation of the standard.
Under the previous interpretation, hereinafter referred to as
the "end-of-shift rule," MSHA allegedly "allowed production
to continue until the end of the shift, provided miners were
notified that only one escapeway was available and they agreed
to continue working until the end of the shift, and provided
the next shift was not permitted to go underground until the
second escapeway was repaired." 18 FMSHRC at 2026.
Akzo moved for summary decision on the ground that "there
was no violation of [section] 57.11050 . . . in that, at all
relevant times, Akzo maintained two properly maintained
escapeways to the mine's surface." A. Mot. for Summ. Dec. at
2. Akzo contended that it was at all times in compliance with
section 57.11050, in that it could perform maintenance on
hoisting equipment without violating the standard, the standard
does not require both escapeways to be functional at the same
time, and MSHA had previously recognized the end-of-shift
rule. Mem. in Supp. of A. Mot. for Summ. Dec. at 16-23. Akzo
also characterized the 1-hour rule as a new evacuation
requirement, which MSHA was engrafting onto section 57.11050(a)
in violation of the Administrative Procedure Act ("APA") and
the terms of the Mine Act. Id. at 23-34.
The Secretary cross moved for summary decision on the
ground that the facts as stipulated established a violation
of section 57.11050(a) as set forth in the citation. S. Resp.
to A. Mot. and Cross Mot. for Summ. Dec. at 2. The Secretary
argued that it was reasonable for her to interpret the
standard as prohibiting what occurred in this case, which
she characterized as a failure by Akzo to "properly maintain
two separate escapeways" while non-necessary personnel were
underground. S. Mem. in Supp. of Cross Mot. for Summ. Dec.
at 5-9, 14-17.
The judge determined that Akzo had not violated section
57.11050(a). 18 FMSHRC at 2016-27. He concluded that MSHA's
interpretation and application of section 57.11050(a) went
well beyond the language of the provision, was unreasonable,
and not entitled to deference. Id. at 2027. He found no
credible evidence of the existence, prior to the instant
litigation, of any written MSHA national policy statements
concerning mandatory mine-wide evacuation if compliance with
section 57.11050(a) is not achieved within 1 hour, or the
fixing of an "automatic" 1-hour abatement time to achieve
such compliance, or uniform enforcement methods for citing
a mine operator for a violation of section 57.11050(a). Id.
at 2016.[4] The judge characterized the Gomez Response as
having been prepared unilaterally and not shared with other
members of the mining community, and noted that its contents
had not been reduced to other written form or included as
part of MSHA's enforcement guidelines or policy manuals.
18 FMSHRC at 2020-21. He further found, from the deposition
testimony of the MSHA officials and inspectors, that there
appeared to be inconsistent, uncertain, and confusing
enforcement practices as to the interpretation and application
of section 57.11050(a). Id. at 2021-24. The judge
particularly noted that MSHA witnesses could not agree
regarding how the 1-hour rule would apply in practice.
Id. at 2021-22.
The judge found nothing in the text of section 57.11050(a)
to support MSHA's 1-hour rule. Id. at 2025-26. He also
concluded that the language of subsection (a), requiring the
positioning of escapeways so that damage to one shall not
lessen the effectiveness of the others, recognizes that one
escapeway in a two-escapeway mine may not always be available,
because of damage or for maintenance. Id. at 2026. The judge
rejected MSHA's reliance on subsection (b) of section 57.11050
as authority for requiring evacuation of an entire mine if one
of the only two escapeways is going to be unavailable for more
than 1 hour. Id. at 2024. He concluded that subsection (b)
does not provide for any mine evacuation, but only for refuges
if miners cannot reach the surface within an hour by using the
escapeways provided by subsection (a). Id. Finally, the judge
agreed with Akzo that the Gomez Response was not just a general
explanatory or interpretative statement regarding the application
of section 57.11050(a), but instead constituted a substantive
rule and was therefore subject to the notice, comment, and
publication requirements of the APA. Id. at 2027.
The Commission granted the Secretary's PDR in which she
requests that we reverse the judge's decision, affirm the
citation, and remand for penalty assessment.
II.
Disposition
A. The Parties' Arguments
The Secretary contends that the 1-hour rule is an
interpretative rule, falling under the exception to the APA
that does not require notice and comment rulemaking, because
it is based on the regulation's language and intent. S. Br.
at 5-12. The Secretary argues for deference to the 1-hour
rule because it is a "safety-promoting" interpretation of
section 57.11050 that is reasonable and consistent with the
language and purpose of the standard. Id. at 14-20. Citing
to the legislative history of the Mine Act and its predecessor
statute, the Secretary claims that the purpose of the standard
is to ensure that miners will have a way out of the mine at
all times in an emergency, even if one escapeway is damaged.
S. Br. at 16-17.
The Secretary argues that the 1-hour rule is consistent
with past MSHA national practice. Id. at 21-23. She argues
that even if, at an earlier time, MSHA staff applied a different
interpretation of section 57.11050(a), she is not precluded from
announcing a new interpretation of the standard. Id. at 23-25.
The Secretary contends that this arguably is the first time she
has advanced the 1-hour rule, which does not in itself make it
undeserving of deference under applicable case law. Id. at 25-
27. She also asserts that even if she is found to have modified
her position, it is permissible for her to do so as long as she
adequately identifies a reasonable basis for the change. Id. at
27-28.[5]
Amicus United Steelworkers of America ("USWA") repeats
many of the Secretary's arguments. USWA Br. at 1, 3-5. It
also contends that section 57.11050(a) could be reasonably
interpreted to prohibit all underground work when there are
less than two escapeways available. Id. at 3, 5.
Akzo urges that the judge's decision be affirmed on the
ground that MSHA's interpretation of section 57.11050(a) is
very different than its previous interpretation, is
unsupported by the language of the standard, and is an
attempt to engraft new substantive requirements onto the
regulation, which would result in a requirement that the
operators of all two-shaft mines either add an additional
shaft or evacuate the entire mine whenever a hoist is to be
disabled for an hour or more. A. Br. at 11-12, 14-21.
According to Akzo, this new interpretation should have
been subject to APA procedures. Id. at 23-28. Akzo further
contends that no reasonably prudent operator would have had
notice of MSHA's regulatory construction of the standard.
Id. at 21-23. Akzo argues that a mandatory evacuation
requirement exceeds any withdrawal authority under the Mine
Act, and facially violates the statutory requirement that MSHA
grant each operator a "reasonable time" to abate any violation.
Id. at 12-13. Akzo nevertheless concedes "that a common sense
reading of the standard includes the tacit requirement that
miners may not remain underground indefinitely while there
is only one functioning escapeway." Id. at 15 n.12.
Amici National Mining Association ("NMA") and the Salt
Institute ("SI"), who filed a joint brief in support of Akzo's
position, make similar APA and notice arguments. NMA/SI Br. at
2-9, 14-17. They add that the 1-hour rule is so significant a
departure from the standard's plain meaning that it does not
merit the Commission's deference. Id. at 9-14.
While arguing that MSHA's 1-hour rule is a radical change
from its previously recognized end-of-shift rule, neither Akzo
nor NMA/SI argue for the end-of-shift interpretation of section
57.11050(a). At oral argument, counsel for Akzo denied that by
opposing the 1-hour rule Akzo sought to retain in place by
default the end-of-shift rule. Oral Arg. Tr. 25. Akzo's
counsel stated that Akzo instead wants MSHA "to take into
account [the] enumerable variety of circumstances and fashion
a rule that speaks to that continuum of circumstances so that
the requirements imposed on the . . . operator are reasonable
in view of the circumstances that are occurring at the time."
Oral Arg. Tr. 32.
B. Interpretation of Section 57.11050(a)
The Commission has recognized that "[w]hen the meaning
of the language of a statute or regulation is plain, the
statute or regulation must be interpreted according to its
terms, the ordinary meaning of its words prevails, and it
cannot be expanded beyond its plain meaning." Western
Fuels-Utah, Inc., 11 FMSHRC 278, 283 (Mar. 1989); Consolidation
Coal Co., 18 FMSHRC 1541, 1545 (Sept. 1996). It is a cardinal
principle of statutory and regulatory interpretation that words
that are not technical in nature "`are to be given their usual,
natural, plain, ordinary, and commonly understood meaning.'"
Western Fuels, 11 FMSHRC at 283 (citing Old Colony R.R. Co. v.
Commissioner of Internal Revenue, 284 U.S. 552, 560 (1932)).
It is only when the plain meaning is doubtful that the issue
of deference to the Secretary's interpretation arises. See
Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984)
(deference is considered "only when the plain meaning of the
rule itself is doubtful or ambiguous") (emphasis in original).
Section 57.11050 states:
(a) Every mine shall have two or more
separate, properly maintained escapeways to
the surface from the lowest levels which are
so positioned that damage to one shall not
lessen the effectiveness of the others. A
method of refuge shall be provided while a
second opening to the surface is being
developed. A second escapeway is
recommended, but not required, during the
exploration or development of an ore body.
Under the plain terms of the standard, an operator must
provide two means of escape at all times.[6] We disagree
with the judge that the phrase requiring the positioning of
escapeways so "that damage to one shall not lessen the
effectiveness of the others" somehow signals that both
escapeways do not always have to be operational when miners
are underground. 18 FMSHRC at 2026. Instead, the phrase
simply means that escapeways in a mine should be located so
that if an accident causes damage to one escapeway the others
will remain functional, to provide miners a way out. The
standard unequivocally states that two escapeways must be
provided. It follows therefore that an operator risks
being cited if miners remain underground when two escapeways
are not operational.[7]
This two-escapeway requirement is of utmost importance
to miner safety because of the constant threat of unforeseen
hazards in underground mines. When Congress enacted the
requirement as an interim mandatory standard for all
underground coal mines, Congress specifically provided that
two escapeways be provided at all times. Section 317(f) of
the Mine Act provides: "[A]t least two separate and distinct
travelable passageways which are maintained to insure passage
at all times of any person, . . . and which are to be
designated as escapeways, . . . shall be provided from each
working section continuous to the surface . . . ." 30 U.S.C.
� 877(f) (emphasis added). This two escapeway requirement
was originally included in section 317(f) of the Federal Coal
Mine Health and Safety Act of 1969, 30 U.S.C. � 801 et seq.
(1976) ("Coal Act"), and was carried over without change to
the Mine Act. The legislative history of the Coal Act
indicates that the continual need for two escapeways applies
to salt mines as well as coal mines. The report from the
Senate Committee responsible for drafting the Coal Act states:
Mine fires, extensive collapse of roof, or
similar occurrences may completely block the
regular travelway between the working section
and the surface, thus cutting off escape in
an emergency unless an alternate route is
provided to the surface. As recently as
March 1968, 21 men at a salt mine lost their
lives because a second escapeway was not
provided.
S. Rep. No. 91-411, at 83 (1969), reprinted in Senate
Subcommittee on Labor, Committee on Labor and Public Welfare,
94th Cong., Part I Legislative History of the Federal Coal
Mine Health and Safety Act of 1969, at 209 (1975) (emphasis
added). The plain meaning of the regulation, requiring two
escapeways when miners are underground, is not only consistent
with this Congressional view, but also with the primary
purpose of the Mine Act. See Secretary of Labor on behalf
of Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1437
(D.C. Cir. 1989) ("This court has several times observed that
the `primary purpose' of the Mine Act was `to protect mining's
most valuable resource - the miner'") (citations omitted).
As the Secretary explains, the "purpose of the standard and
the statute is to ensure that miners will have a way out of
the mine at all times, even if something happens during an
emergency situation and one escapeway is damaged." S. Br.
at 17.
Here, it is undisputed that two emergency escapeways were
not provided at all times for the miners' protection. The
judge found, and the parties stipulated that, on December 24,
1995, the "cited production hoist, which was one of the
escapeways, was not available for use for approximately three
hours and thirty seven minutes while the hoist rope was being
shortened." 18 FMSHRC at 2016. Under the plain terms of
section 57.11050(a), Akzo violated the standard by closing
down one of its escapeways for approximately 3-1/2 hours while
miners were underground.
Commissioner Verheggen contends in dissent that the
presence of the requirement in Mine Act section 317(f) that
coal mine operators maintain two escapeways at all times is
"an indication that the Secretary, in promulgating section
57.11050(a), may have opted not to include an `at all times'
element in the regulation."[8] Slip op. at 21. It is
noteworthy however that at least two metal/non-metal
regulations, 30 C.F.R. �� 57.8518(a) and 57.8534(a), mandate
that fans be continuously operated in active workings when
individuals are present except for "scheduled production-cycle
shutdowns or planned or scheduled fan maintenance." Applying
the same logic as our dissenting colleague, the presence of
this exception in those regulations makes its absence from
section 57.11050 all the more significant, reinforcing our
conclusion that this standard contains no implicit exception
for planned maintenance.
Our dissenting colleagues believe we are "ignoring . . .
practical problems" and claim that our ruling "will seriously
inhibit the ability to maintain escapeways[.]" Slip op. at 21,
26.[9] Our colleagues also imply that our ruling may have a
negative impact on safety in that an operator who is required
to stop production in order to service its hoist or perform
other maintenance work may be deterred from doing that work
at all. Slip op. at 27. Alternatively, they raise the concern
that "frequent calls to evacuate could result in miners . . .
begin[ning] to second-guess the need to evacuate." Slip op. at
28.
We recognize that adopting the plain meaning of section
57.11050(a), and thus requiring two operational escapeways while
miners are underground, may be inconvenient, because the nature
of the mining industry presents numerous situations, other than
the malfunctioning of a hoist, where an escapeway may become
temporarily unavailable for a certain period of time. However,
when a regulation states unequivocally that each mine "shall
have two or more . . . escapeways" (30 C.F.R. � 57.11050(a)),
it would be adding an improper gloss to tack on an "only some
of the time" qualification. The requirement that mines must
have two or more escapeways does not apply for only two shifts
out of three, or only when it is convenient for the operator,
or only during times when maintenance is not being performed.
When a standard says "[e]very mine shall have two or more"
escapeways (id.), it follows that two escapeways be provided
and available at all times when miners are underground.
We are confident that our ruling is faithful to the
objectives of the Mine Act, which was enacted for the express
purpose of strengthening the safety protections under the
predecessor Metal/Non-Metal Act and to prevent the recurring
mine disasters in that industry. S. Rep. No. 95-181, at 4-5,
8-9, reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, Legislative History of the Federal Mine Safety
and Health Act of 1977, at 589, 592-93, 596-97 ("Legis. Hist.").
Congress was concerned with improving safety protection for all
miners in both coal and non-coal mines. H.R. Rep. No. 95-312,
at 8 (1977), reprinted in Legis. Hist. at 357, 364; S. Rep. No.
95-181, at 9, Legis. Hist. at 597. One of the disasters that
prompted enactment of the Mine Act was the tragedy at the
Sunshine Silver Mine in Idaho in May 1972, where 91 miners died
of carbon monoxide asphyxiation. S. Rep. No. 95-181, at 4,
Legis. Hist. at 592. The Senate Report attributed one of
the major causes for this disaster as "the failure of mine
management to provide a secondary escape route trap[ping]
miners as much as a mile underground." Id. Providing two
escapeways, as section 57.11050(a) mandates, is an important
measure to prevent recurrence of such disasters in the future.
We believe our dissenting colleagues' extrapolation that
dire consequences may result from our ruling is hypothetical
rather than supported by the record before us.[10] In addition,
like the Secretary, our colleagues are unable to indicate how
long an operator can require miners to work underground with
only one escapeway available. Commissioner Beatty urges "the
Secretary to engage both miners, and the regulated community,
in an attempt to develop a uniform rule that provides clear
guidance . . . ." Slip op. at 29. Commissioner Verheggen
contends that "the Secretary is in a better position to balance
. . . concerns and promulgate an appropriate guidance document
or rule that clearly and reasonably addresses these problems."
Slip op. at 23. Both of our dissenting colleagues express
concern about our "inflexible" approach (see slip op. at 21,
28), yet their decision would leave the miners' escapeway
protection standard in legal limbo while their suggested
rulemaking process occurs.
Having found the meaning of the regulation to be plain,
we would normally have no need to consider the reasonableness
of the 1-hour rule set out in the Gomez Response. Heckler,
735 F.2d at 1509. However, because we find the Secretary's
interpretive gloss in this case to be particularly troubling,
we feel compelled to comment on it.
The Gomez Response states that "routine maintenance is
allowed with miners underground, if, at all times, a hoist can
be reactivated and miners withdrawn from the mine within 1
hour." 18 FMSHRC at 2020; Vol. I, Doc Tab S at 5. Under this
interpretation of the regulation adopted by the Secretary,
miners could remain underground regardless of the length of
time an escapeway is inoperable, so long as it could be placed
back in service and miners withdrawn from the mine within 1
our.[11] Because the Secretary considers an escapeway operable,
for purposes of the escapeway standard, as long as it "could
be returned to service within one hour of the need to be used"
(18 FMSHRC at 2020 (emphasis added)), an operator could
simultaneously disable both escapeways for maintenance while
miners were underground and would apparently not violate the
escapeway standard unless the escapeways would not be available
for use within 1 hour of any need which may arise. Under this
approach, miners could technically remain underground for an
indefinite period of time, without access to any escapeway, so
long as the operator is able to make the escapeways operable
within 1 hour of intended use.[12]
We have carefully considered the Secretary's arguments in
favor of adopting a 1-hour rule. However, the Secretary's
conflicting arguments were more confusing than illuminating.
See slip op. at (6 n.5). In the instant case, the Secretary's
1-hour rule leaves unresolved whether the hour is fixed or
floating as to when it starts and stops and whether the entire
hour is available for restoration of service or includes the
time necessary to evacuate the mine. Under this policy, the
requirement that every mine provide two escapeways has been
reduced to merely a showing of the potential for making two
escapeways available within an hour.[13]
In sum, we conclude that section 57.11050(a) means what
it says - that two escapeways must be provided to miners while
underground. Therefore, the operator had adequate notice of
the terms of the standard. See Bluestone Coal Corp., 19 FMSHRC
1025, 1031 (June 1997) (adequate notice provided by unambiguous
regulation); see also Rock of Ages Corp. v. Secretary of Labor,
170 F.3d 148, 156 (2d Cir. 1999) (operator had "sufficient
notice of its regulatory obligations because the Commission's
interpretation of [the regulation at issue] is consistent with
the plain meaning of the regulation and a reasonably prudent
mine operator would take the Mine Act's objectives into account
when determining its responsibilities to comply with a
regulation promulgated thereunder.").
Accordingly, we reverse the judge and find a violation.
While the Secretary requests that we remand for penalty
assessment, we note that the operator has already paid the
$50 penalty the Secretary proposed. In such circumstances,
and in the interest of judicial economy and finality, we see
no reason to remand for penalty assessment. See 30 U.S.C.
� 823(d)(2)(C) (Commission empowered to affirm, set aside,
or modify decision of ALJ in conformity with record);
Sellersburg Stone Co., 5 FMSHRC 287, 293-94 (Mar. 1983)
(Commission eschewed remand to set penalty where there was no
dispute between Secretary and operator regarding penalty).
Taking into account the statutory criteria of section 110(i),
we conclude that such a nominal penalty is appropriate under
the unique circumstances of this case, where the operator
staged the violation in order to test the Secretary's
interpretation of a standard at a time no mining was underway.
**FOOTNOTES**
[1]: Section 57.11050 provides:
(a) Every mine shall have two or more
separate, properly maintained escapeways to
the surface from the lowest levels which are
so positioned that damage to one shall not
lessen the effectiveness of the others. A
method of refuge shall be provided while a
second opening to the surface is being
developed. A second escapeway is
recommended, but not required, during the
exploration or development of an ore body.
(b) In addition to separate escapeways,
a method of refuge shall be provided for
every employee who cannot reach the surface
from his working place through at least two
separate escapeways within a time limit of
one hour when using the normal exit method.
These refuges must be positioned so that the
employee can reach one of them within 30
minutes from the time he leaves his
workplace.
[2]: The citation goes on to state:
During part of the time that the production
hoist was out of service, the service hoist
(the primary escapeway) was also out of
service for a maintenance procedure which did
not result in its use being interfered with
for over 30 minutes. However, during that
time both escapeways were not in service.
Vol. I, Doc. Tab U at 1.
[3]: After the Secretary proposed, and Akzo paid, a
$50.00 penalty for the citation, the Secretary moved to
dismiss the contest proceeding on the ground that, by paying
the penalty, Akzo had waived its right to contest. See
S. Mot. to Dismiss Contest Proceedings at 1. In an
unappealed decision, the judge denied the Secretary's motion,
accepting Akzo's contention that its payment of the penalty
was inadvertent. Unpublished Order at 1-2 (June 10, 1996)
(distinguishing Old Ben Coal Co., 7 FMSHRC 205 (Feb. 1985)).
[4]: The judge found that, prior to the Gomez
Response, "MSHA's inspectors in the North- Central District,
and probably other districts, followed an apparent
long[-]standing practice of not requiring the evacuation of
miners working underground when only a single escapeway
was available during a shift." Id. at 2026 (emphasis in
original). Among the evidence the judge relied upon was a
1990 memorandum from James M. Salois, District Manager for
MSHA's North Central District, to MSHA field staff in that
district. Id. at 2017; see Vol. I, Doc. Tab G. In his
memorandum, Salois stated that, in the absence of a
national policy on mine evacuation related to hoist
repairs and maintenance in mines with only two escapeways,
the North Central District would begin to follow
variations of the end-of-shift rule. Vol. I, Doc. Tab G
at 1-3.
[5]: The Secretary advanced a number of inconsistent
arguments for finding a violation. While the citation at
issue referenced the 1-hour rule, and the case was litigated
under that theory before the judge, the Secretary's briefs
to us repeatedly describe her new interpretation as one
requiring that two escapeways be available at all times, and
that miners would have to evacuate if, for any length of
time, there were less than two escapeways available. See S.
Br. at 17, 18, 20; S. Reply Br. at 2, 7. At oral argument,
her counsel disavowed statements made in the briefs, and
explained that section 57.11050(a) was being interpreted
to include the 1-hour rule. Oral Arg. Tr. 13, 38. However,
the Secretary also contended for the first time at oral
argument that the 1-hour rule was compelled by the plain
meaning of the standard. Oral Arg. Tr. 6, 13-14. Her
counsel also claimed that there were two reasonable
interpretations of the 1-hour rule - one measuring the hour
by the time it would take to return the hoist to service,
and the other measuring it by time it would take to
return the hoist to service and evacuate the mine. Oral
Arg. Tr. 15-16.
[6]: In support of his argument that the standard is
not plain, Commissioner Verheggen argues that Akzo would
never have brought this test case if the regulation were
clear on its face. Slip op. at 20. However, the mere fact
that a party contests a citation - even setting up a
violation as a "test case" seeking clarification of a
regulation's meaning - does not automatically lead to the
conclusion that the standard at issue is ambiguous. It
would be curious indeed if, simply because litigants disagree
about the interpretation of a regulation, the Commission
were then precluded from finding that the standard was clear.
[7]: We nevertheless believe that when citing a
violation of section 57.11050(a), the Secretary should
carefully consider all of the facts surrounding the violative
condition to properly characterize the nature of the violation,
and to also correctly fix a reasonable time for abatement
pursuant to section 104(a) of the Mine Act.
[8]: here is no regulatory history to support this
assertion.
[9]: Our dissenting colleague Commissioner Beatty
questions how escapeway maintenance and repair work could ever
be performed in a two escapeway mine under our approach,
since the miners doing the repair work would not have two
escapeways until the work was finished. Slip op. at 26-27.
We note, however, that the Mine Act allows those persons
necessary to abate a condition to remain in a mine even when
other personnel are required to be withdrawn. See section
104(c), 30 U.S.C. � 814(c), and section 107(a), 30 U.S.C.
� 817(a).
[10]: Our colleagues claim we are being impractical,
yet, as indicated above, operators of coal mines are already
required by section 317(f) of the Act to provide two
escapeways "at all times." Moreover, although they supported
the Secretary's 1-hour rule in this case, the United Steel
Workers of America, on behalf of the miners at this facility,
additionally argued that it would also be reasonable for the
Secretary to prohibit all underground work when there are
less than two escapeways available, USWA Br. at 3, 5.
[11]: Counsel for the Secretary confirmed this
interpretation during oral argument by stating that "[a]s
long as at any point in time, you are capable of bringing
that escapeway back into service within an hour, . . . it
doesn't really matter how long the escapeway is out of
service." Oral Arg. Tr. 37.
[12]: Significantly, even Akzo concedes that miners
cannot be left underground indefinitely when only one
escapeway is available. See A. Br. at 15 n.12.
[13]: In light of our holding, we do not address
the Secretary's argument that the 1-hour rule is an
interpretative rule that is not subject to notice and comment
rulemaking.
III.
Conclusion
For the foregoing reasons, we reverse the judge's
determination and find that there was a violation of section
57.11050(a) and assess a penalty of $50.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Commissioner Marc Lincoln Marks concurring:
I write separately to specifically emphasize the safety
aspects of this case and to call attention to certain facts
in the evidence not a part of the opinion filed by Chairman
Mary Lu Jordan and Commissioner James Riley.
BACKGROUND
When the Mine Act of 1977 was passed by the 95th Congress
of the United States and signed by then President Jimmy Carter,
this extraordinary piece of legislation set the public policy
of the United States once and for all, above all else, in favor
of SAFETY. As has been said over and over again, the primary
purpose of the Mine Act was to protect mining's most valuable
resource - the miner. See 30 U.S.C. � 802 (a).
During that legislative process there were many voices
who attempted to temper the safety provisions - trying to
weaken them - but fortunately those voices were overridden
by the vast majority of the legislative and executive branch
and therefore strong safety and health provisions prevailed.
There were also those voices of gloom who predicted that
the safety and health provisions of the Act would penalize the
operators so harshly that production would be reduced, if not
curtailed so drastically that only bankruptcy of the mining
industry would follow.
Neither of these predictions proved true! In fact, not
only have the miners benefitted from the Act but so have the
operators.
Yet, today, there are still those operators and their
defenders who try to weaken the safety provisions of the 1977
Act and as well as those regulations that have come about as
a result of it. The battle to uphold the 1977 Act's sole
purpose, greater safety and better health for miners, is still
being fought. This case, as much as any case that has come
before this tribunal while I have served, makes that point!
Because of that, I choose to write separately, so that
timidity will not keep the real issue in this case hidden.
That real issue is whether or not production should be our
first consideration or should the safety and health of our
miners continue to take priority even though it may cost an
operator some production time and/or additional money to
provide the safety necessary to the miners' well being.
Let me begin by going back to March 5, 1968. On that
date a disastrous and horrendous fire occurred in a Louisiana
mine called Belle Island Salt Mine, which was owned by a
company named Cargill. Vol. I, Doc. Tab. B., Final Report on
Major Mine - Fire Disaster Belle Isle Salt Mine ("Belle Isle
Report"). At the time the fire started, there were 21 miners
working underground. ALL 21 MINERS SUFFERED AN AWFUL DEATH.
Id. at 1. Twenty of them died of carbon monoxide poisoning
and one apparently as the result of a massive skull fracture.
Belle Isle Report at 1.
Over a period of the next number of months, an
investigation was made of that fire, (perhaps the most
thorough investigation ever made up to that time), by the
Department of Interior's Bureau of Mines under Public Law
89-577, the Federal Metal and Nonmetallic Mine Safety Act.
Id. Subsequently, a report was filed that indicated, in no
uncertain terms, that a separate shaft for use as an
escapeway would prevent underground disasters such as the
one that killed the 21 men during the fire in that Louisiana
salt mine. Id. at 44, 46. The Bureau pointed out that the
blast and intense heat in the single shaft made escape of
any of the 21 men in the mine at the time, impossible!
Bureau of Mines, Press Release at 1 (Feb. 14, 1969). The
Bureau's report cited the fact that the lack of A SECOND
WAY OUT OF THE MINE was a major contributing factor to the
loss of life. Belle Isle Report at 44. That report also
points out that the company had been advised to place a
second shaft in its mine nearly six months before the
disaster occurred, although at the time of the disaster
work on the second escapeway had not even started! Id.
What makes all of this even more relevant, is the fact
that Cargill owns the Cleveland mine that is involved in the
case at bar. But you say, it didn't own it at the time all
escapeways were closed down with miners underground, which
prompted the citation that brought this case before us. And
you're right. However, interestingly enough the company that
did own the mine at the time, Akzo, sold the mine in question
to Cargill before this matter was heard in oral argument by
us. In fact the sale took place on April 25, 1997. Akzo's
Status Report, � 1 (May 23, 1997). Although it seems unusual
that the name Cargill does not appear on the caption or that
at no time has any attempt been made to substitute or add
Cargill as a party on the record, such neglect, if one thinks
about it, is understandable. How in the world could Cargill
have wanted its name to appear on a matter in which it was
promoting the idea that when a mine regulation says every
mine shall have two or more separate properly maintained
escapeways, that isn't what it really means, in light of the
experience it had back in 1968. When counsel was asked who he
represented at the oral argument of this matter, counsel
indicated that he represented Akzo Nobel Salt and did not
indicate that he represented Cargill. Oral Arg. Tr. 4. No
explanation was given for this mysterious posture, even
though a representative of Cargill sat at the counsel's table
alongside of "Akzo's" counsel. Oral Arg. Tr. 4.
Akzo Nobel Salt, Inc., at the time it was cited in
violation of section 57.11050(a) was a company owned by Akzo
Nobel N.V., headquartered in the Netherlands. Akzo
Nobel N.V., Press Release (Aug. 15, 1996)
<http://www.akzo.nobel.se/om_akzo_nobel_press960815.htm>.
This huge foreign organization, worth billions of dollars in
assets, chose to make an issue of what is now before us:
whether or not there must be two escapeways or more at all
times for miners underground according to section 57.11050(a).
I want now to discuss, somewhat briefly, but importantly,
the background that led to this case coming before us and who
was responsible for the plot that set it up.
There is no question but that the record indicates that
counsel for Akzo Salt Inc., from the very beginning set up
the procedures that were to be followed, in fact the record
would indicate that none of the company officials who were
involved in the shutdown would speak to any one of the MSHA
investigators unless their counsel was present. See Vol. I.,
Doc. Tab T at 16, 19. And when the MSHA investigators began
to question the company officials, the officials refused to
answer the question as to whether they knew that they were
violating the law, as a result of being told not to answer
by their counsel. Id. at 17, 19. The record is clear that
this matter was set up and carried out in detail as a result
of instructions from legal counsel.
At this time it is incumbent upon us to ask the question,
why would this huge foreign company, aware of the public
policy of the United States to provide United States miners
with a way out of a mine at all times, want to involve itself
in this type of a dispute? Why would it take the chance that
an accident of any nature would take place during the 3-1/2
hours there were not two escapeways available to the miners
underground, trapping the miners? What insensitivity would
prompt Akzo company officials to take the advice of their
counsel and not evacuate the miners during the shutdown -
and by the way, not advise the miners at any time either
before or during this happening? Vol. I., Doc. Tab. X at
5, 7, 8; Vol. I., Doc. Tab. Y at 22. I believe that the
answer to those questions is obvious.
This billion dollar foreign corporation owned a salt
mine that had but two escapeways and it was going to cost
them a substantial amount of money and a loss of production
to dig a third escapeway so that it would be in conformance
with the requirement, that if one escapeway was shut down
for any reason, there would be two escapeways as required by
section 57.11050(a). Rather than spend the money, or have
some loss of production when any one of its escapeways were
down,[1] it was willing to gamble on expending the lives of
the miners underground.
SECTION 57.11050(a)
Section 57.11050(a) provides:
(a) Every mine shall have two or more separate, properly
maintained escapeways to the surface from the lowest
levels which are so positioned that damage to one shall
not lessen the effectiveness of the others.
Our responsibility in this case, as in all cases that
come before us, is to decide without equivocating the meaning
of section 57.11050(a). To do this there are certain
guidelines that have been set down for us to follow by
Congress, the Supreme Court of the United States, the Federal
Courts of Appeals, and by our own tribunal.
First and foremost, we are directed by Congress that our
prime concern and chief responsibility, as laid out under
section 2(a) of the Mine Act, is the SAFETY of the miners!
See 30 U.S.C. � 802(a). Additionally, the Court of Appeals
for the District of Columbia made it clear that Congress
intended the Mine Act to be liberally construed to achieve
that goal of mine safety. Secretary of Labor on behalf of
Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1437 (D.C.
Cir. 1989). Again, the Second Circuit recently stated that
it is the responsibility of this Commission to interpret the
Mine Act and its regulations, consistent with the remedial
goal of the Act, and to enhance safety. Rock of Ages Corp.
v. Secretary of Labor, 170 F.3d 148, 161 (2d Cir. 1999)
(Commission interpretation correctly took into account Mine
Act goal of preventing "mine accidents"). Justice Marshall
writing for a majority of the United States Supreme Court
recognized in Donovan v. Dewey, 452 U.S. 594, 602-03 (1981),
that the Mine Act was "specifically tailored" to address
the mining industry's "notorious history of serious accidents
and unhealthful working conditions," and that "there is a
substantial federal interest in improving the health and
safety conditions in the nation's underground and surface
mines."
Having established our responsibility, we now turn to
the law we must follow when we find a regulation to be plain
on its face. It is well established that if a regulation's
meaning is plain on its face, it must be interpreted to mean
what it says (and not something different from its plain
meaning). Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-43 (1984); K Mart Corp. v.
Cartier, Inc. 486 U.S. 281, 291 (1988); Old Colony R.R. v.
Commissioner of Int. Rev., 284 U.S. 552, 560 (1932) (in
interpreting statutory language, "the plain, obvious and
rational meaning of a statute is to be preferred to any
curious, narrow, hidden sense.")
At this point it would seem appropriate to define the
word "shall" as it applies to its use in a government
regulation. The ordinary connotation of the word "shall" is
"must." Exportal Ltda. v. United States, 902 F.2d 45, 50
(D.C. Cir. 1990). "The word `shall' generally indicates a
command that admits of no discretion on the part of the
person instructed to carry out the directive." Association
of Civilian Technicians v. FLRA, 22 F.3d 1150, 1153 (D.C.
Cir. 1994). Many courts have explained that "shall" is a
term of legal significance in that it is mandatory or
imperative, not merely precatory. Exportal, 902 F.2d at
50 (citing Conoco, Inc. v. Norwest Bank, Mason City, 767 F.2d
470, 471 (8th Cir. 1985); Continental Airlines, Inc. v.
Department of Transp., 850 F.2d 209, 216 (D.C. Cir. 1988);
Weil v. Markowitz, 829 F.2d 166, 171 (D.C. Cir. 1987);
Association of Am. R.R. v. Costle, 562 F.2d 1310, 1312 (D.C.
Cir. 1977)). See also Jim Walters Resources, Inc., 3 FMSHRC,
2488, 2490 (Nov. 1981) (the language "shall be used" in a
standard was mandatory).
Accordingly, the Commission construes standards that use
the word "shall" to require a certain condition, to mean that
the condition "must" be provided. For example, in Amax Coal
Co., 19 FMSHRC 470, 474 (Mar. 1997), the plain language of
the standard stated that methane content of the air "shall be
less than 1.0 volume per centum" and the Commission reversed
the judge's finding of no violation because methane exceeded
that level. See also Fluor Daniel, Inc., 18 FMSHRC 1143, 1146
(July 1996) (when standard provides that "[s]elf-propelled
mobile equipment shall be equipped with a service brake system
capable of stopping and holding the equipment . . . the service
brakes must be capable of stopping and holding the equipment")
(emphasis added).
The use of the word "shall" in the standard at issue
means "must"; there must be two escapeways, and these must be
functional at all times when miners are underground.[2]
The case Fluor Daniel, 18 FMSHRC 1145-46, makes the point
dramatically. In that case, the regulation in question required
mobile equipment to be equipped with a service brake system and
the operator argued that since the regulation did not use the
words "in functional condition," the regulation did not require
the brakes to be functional. Id. at 1145. That foolish argument
was rejected by this tribunal. Id. at 1146. The same thing was
made clear in Mettiki Coal Corp., 13 FMSHRC 760 (May 1991).
There, the regulation required all electric equipment to be
provided with switches for lockout purposes. Id. at 768. The
Commission held that this meant that the switches be installed
with "functioning lockout devices." Id. The end result is that
the Commission requires what common sense dictates - that if a
regulation requires a piece of equipment, such as brakes, then it
follows that the equipment must be functional at all times, that
is the brakes must work at all times.
Thus, when the regulation in our case requires two or more
escapeways to the surface, it means two or more escapeways
functional and available at all times!! Otherwise, the
regulation would have to be read, that there must be two or more
escapeways to the surface only some of the time or perhaps none
of the time. This is a result that is antithetical to the
purpose and intent of the Mine Act.[3] Can one believe that a
Congress and a President intended that miners were to have two
functioning escapeways only part of the time and the rest of the
time be left in a black hole in the ground without any means of
escape, gambling that no roof would fall or no fire would start
and snuff out their lives - as happened to those 21 miners in the
Louisiana Salt Mine owned by Cargill back in 1968! In sum, the
standard's plain terms require two functioning escapeways that
are available AT ALL TIMES when miners are underground. To hold
otherwise would be to disregard the plain meaning of section
57.11050(a) and denigrate the spirit and purpose of the Mine Act.
Therefore, I join the majority in reversing the judge and
find a violation of section 57.11050(a). I also join the
majority in its conclusion that, under the circumstances of
this case, a remand for penalty assessment is not necessary.
Marc Lincoln Marks, Commissioner
**FOOTNOTES**
[1]: In his dissenting opinion. Commissioner Beatty
takes out of context the suggestion of Commissioner Marks that
one of the ways that an operator could come into compliance
with section 57.11050(a) was to dig a third escapeway so
that two would be available at all times. Slip op. at 25
& n.2. Commissioner Beatty neglects to mention that
Commissioner Marks stated that an operator also could halt
production when any one of its escapeways were down in
order to be in compliance.
[2]: Both dissenting colleagues fault the majority
for adding an "at all times" requirement to section
57.11050(a). Slip op. at 21-22, 26 n.4. However, the
dissenters overlook that section 57.11050(a) is written in
mandatory terms, explicitly using the word "shall."
[3]: In 1998, there were 80 fatalities in coal and
metal and non-metal mines. As of July 31, 1999, 50
fatalities from mining have been reported. MSHA, 1999
Fatalgrams and Fatal Investigation Reports Metal
and Nonmetal Mines (visited Aug. 6, 1999)
<http://www.msha.gov/FATALS/FABM99.HTM>; MSHA, 1999
Fatalgrams and Fatal Investigation Reports Coal Mines
(visited Aug. 6, 1999) <http://www.msha.gov/FATALS/FABC99.HTM>.
Therefore, it remains critical to construe the Mine Act in
a manner that promotes miner safety. As Mine Act Section
2(a) provides, "the first priority and concern of all in the
coal or other mining industry must be the health and safety of
its most precious resource - the miner." 30 U.S.C. � 801(a).
3
Commissioner Verheggen, dissenting:
I disagree with the majority's conclusion that the
standard at issue, section 57.11050(a), is clear on its face
and requires that two operable escapeways be available at all
times.[1] I fail to see how the meaning of such a standard
could be clear given the multiplicity of interpretations that
were advanced in this case by Akzo and the Secretary. I would
affirm the judge in result, however, and find no violation
because the Secretary has failed to articulate a coherent or
reasonable basis for the citation issued to Akzo. In reaching
this conclusion, I am in accord with my colleague
Commissioner Beatty.
As a threshold matter, I disagree with my colleagues
that section 57.11050(a) clearly and unambiguously requires
operators to "provide two means of escape at all times."
Slip op. at 8 (emphasis added). Aside from the fact that
the words "at all times" simply do not appear in section
57.11050(a), the regulation does require, among other things,
that the two requisite escapeways be "properly maintained."
This requirement begs two questions: (1) whether the
two-escapeway requirement applies while escapeways are in
the process of being serviced pursuant to a maintenance
schedule; and (2) whether an operator would be in violation
of the standard if an escapeway becomes unavailable as the
result of an unplanned, unforeseeable event. It is up to
the Secretary to fill this gap in the regulation, as she
attempted to do in this case - unsuccessfully, as I explain
further below. This case is before us because the Secretary,
prompted by Akzo's counsel, attempted to provide guidance to
the company on the meaning of the "properly maintained"
element of section 57.11050(a). If this provision were
clear on its face, this case - which Akzo brought and the
Secretary defended as a "test case" (see 18 FMSHRC at 1955)
- would never have arisen.
I find the Tenth Circuit's recent decision in Walker ]
Stone Co. v. Secretary of Labor instructive on this point.
156 F.3d 1076 (10th Cir. 1998). In Walker Stone, the court
had before it a case in which "[t]he administrative law judge
and the Commission both relied on their own respective
perception[s] of the plain language of the applicable
regulation." Id. at 1081. The judge and Commission, however,
"reached opposite results," which led the court to conclude
that "[t]here is thus ambiguity inherent in the safety
standard." Id. (my emphasis). The court noted that "[n]either
the . . . judge's interpretation nor the contrary
interpretation adopted by the Commission is either clearly
required or clearly prohibited by the language of the
regulatory safety standard." Id. Similarly, here, section
57.11050(a) does not explicitly require that two escapeways
be available "at all times." Nor does the standard explicitly
require that the Secretary make allowances for maintenance.
Section 57.11050(a) is silent as to the issue presented by
this case, and thus inherently ambiguous.
My colleagues, though, have unilaterally added an "at
all times" element to section 57.11050(a), without addressing
the practical problems posed by planned and unplanned
escapeway maintenance, problems which Commissioner Beatty
outlines in his dissent.[2] I find it significant that the
Secretary did not advance the majority's plain meaning
interpretation of section 57.11050(a) at trial. Indeed, she
flatly rejected such an interpretation in the instant appeal
at oral argument. Oral Arg. Tr. 13, 38 (counsel's disavowal
of the "at all times" interpretation argued in the Secretary's
briefs). What emerges from the Secretary's various
interpretations of the standard is a desire to avoid an
inflexible reading of the standard like that announced today
by the majority, a reading that poses problems with both
enforcement and compliance. Under the majority's new
interpretation of section 57.11050(a), the Secretary is faced
with having to police all escapeway outages and, as the
majority acknowledges, "carefully consider all of the facts
surrounding the violative condition to properly characterize
the nature of the violation." Slip op. at 8 n.7. Moreover,
operators can be cited for even the briefest of interruptions
in escapeway accessability, even interruptions occurring as a
result of totally unforeseeable circumstances such as short
power outages or minor mechanical problems. As the Secretary's
various interpretations of the standard suggest, she probably
wanted to avoid problems such as these.
The Secretary simply did not intend that the standard be
an absolute requirement that at least two escapeways be
available at all times. Put another way, I find no indication
in section 57.11050(a) that the Secretary "has directly spoken
to the precise question in issue" in this case - i.e., how
operators of metal and nonmetal mines must balance the
escapeway requirement with their need to maintain such
escapeways. Cf. Coal Employment Project v. Dole, 889 F.2d
1127, 1131 (D.C. Cir. 1989) (in determining whether a
"regulation is consistent with the [Mine Act]," the first
inquiry is "whether Congress has directly spoken to the
precise question in issue") (citations omitted).
My colleagues find support for their interpretation in
the requirement of Mine Act section 317(f) that coal mine
operators must maintain "[a]t least two separate and distinct
travelable [escapeways] . . . at all times." 30 U.S.C.
� 877(f) (emphasis added); see slip op. at 8-9. I view this,
however, as an indication that the Secretary, in promulgating
section 57.11050(a), may have opted not to include an "at all
times" element in the regulation. Congress provided the
Secretary a blueprint for such an approach in section 317(f),
yet for whatever reason, the Secretary did not use this
blueprint when promulgating the similar standard for metal
and nonmetal mines. Instead, she has attempted to address the
particular concerns and problems of the metal and nonmetal
mining industry - and even more specifically, those mines
with only two escapeways - in guidance documents such as the S
alois interpretation (see 18 FMSHRC at 2017-18, 2026) and
Gomez letter (id. at 1955, 2019-20).[3]
Having found that section 57.11050(a) does not address
the question of escapeway requirements during maintenance,
the issue presented by this case, I next turn to the question
of whether the Commission is required to "accord special
weight to the Secretary's view" of the regulation. Helen
Mining Co., 1 FMSHRC 1796, 1801 (Nov. 1979). Herein lies
the central problem presented by this case: It is simply
impossible to determine just what the Secretary's
interpretation of section 57.11050(a) is. The record contains
a variety of Secretarial interpretations, including:
(1) The Salois interpretation, or "end-of-shift rule."
See 18 FMSHRC at 2017-18, 2026.
(2) The Gomez letter, or "one-hour rule." See id. at
2019-20.
(3) The various interpretations of section 57.11050(a)
appearing in the pleadings, all of which indicate that
no one appears to have known just what MSHA policy was
or what the Gomez letter meant. See id. at 1958-83,
1990-93, 2021-22 ("there appears to be inconsistent,
uncertain, and confusing enforcement practices among
MSHA's inspectors as to the interpretation and
application of this regulation").
(4) The "at all times" interpretation argued in the
Secretary's briefs (see S. Br. at 17-20; S. Reply Br.
at 2, 7), but later disavowed at oral argument (see
Oral Arg. Tr. 13, 38).
(5) The Secretary's "one-hour rule" interpretation that
was revived at oral argument, and upon which counsel
elaborated, agreeing that there were two possible
interpretations of the rule. See Oral Arg. Tr. 15-16.
(6) A plain meaning interpretation advanced by the
Secretary for the first time at oral argument - which
amazingly differs from the majority's plain meaning
interpretation - deriving a one-hour rule from reading
sections 57.11050(a) and 57.11050(b) together. See
Oral Arg. Tr. 6, 13-14.
I find that the Commission need not "accord special weight"
to the Secretary's views here because she has failed to
articulate any coherent interpretation of section 57.11050(a).
On this ground alone, I would find no violation. Even assuming
that the Secretary's position is memorialized in the Gomez
letter, which was, after all, the initial basis for the
Secretary's case, I agree with my colleagues that the letter is
an unreasonable interpretation of section 57.11050(a). The Gomez
letter states that "routine [escapeway hoist] maintenance is
allowed with miners underground, if, at all times, a hoist can
be reactivated and miners withdrawn from the mine within one
hour." 18 FMSHRC at 2020. As my colleagues point out, under
this interpretation, an operator could have any number of
escapeways laying dormant so long as they could be activated
within an hour. See slip op. at 11. I find unreasonable any
interpretation of section 57.11050(a) that would allow miners
to remain underground without access to any escapeway
indefinitely so long as the escapeway could be rendered
operational in at least an hour. The Gomez letter - which
served as the basis for the Secretary's case - being
unreasonable,[4] I am not prepared to sanction the
regulatory confusion apparent in the Secretary's subsequent
prosecution of the case by finding a violation. I therefore
would affirm the judge's decision in result.
In the absence of a clear interpretation of section
57.11050(a) from the Secretary, the Commission could offer
its own interpretation - the solution my colleagues adopt in
their plain meaning analysis. But the problem with their
approach is that we, as members of the Commission, are not
escapeway experts, and are not equipped to balance the problem
of planned and unplanned escapeway outages with miner safety.
I believe that in this case, the Secretary is in a better
position to balance these concerns and promulgate an
appropriate guidance document or rule that clearly and
reasonably addresses these problems.[5]
I must also take issue with the majority's penalty
assessment, which they make without considering the unequivocal
requirements of section 110(i) of the Mine Act to make findings
on the gravity of the violation, the effect of the penalty on
the operator's ability to continue in business, and the
operator's negligence, history of violations, good faith, and
size. See Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (Mar.
1983) (when a penalty is assessed under the Mine Act,
"[f]indings of fact" must be made "on each of the statutory
criteria"), aff'd, 736 F.2d 1147 (7th Cir. 1984).[6]
For all of the foregoing reasons, I therefore join
Commissioner Beatty in dissent.
Theodore F. Verheggen,
Commissioner
**FOOTNOTES**
[1]: In fact, the majority's ruling that two operable
escapeways be available at all times has the effect of
imposing a requirement that operators covered by section
57.11050(a) have three escapeways available. See slip op.
at 16 (Commissioner Marks, concurring) (Akzo's "salt mine
. . . had but two escapeways and it was going to [be
expensive] to dig a third escapeway").
[2]: Commissioner Marks states that the "real issue
[here] is whether or not production should be our first
consideration or should the safety and health of our miners
continue to take priority." Slip op. at 14. I disagree.
This case is about the meaning of section 57.11050(a). In fact,
I believe that the majority's precipitous approach, and the
confusion that it could create, could very well diminish
safety. I thus believe that it would be much better if the
Secretary addressed this issue through additional study and
promulgation of guidance or more formal rules.
[3]: The majority notes that sections 57.8518(a) and
57.8534(a) contain exceptions from what is essentially an
"at all times" requirement for the operation of mine fans,
arguing that the absence of such an exception from
section 57.11050(a) reinforces their "conclusion that this
standard contains no implicit exception for planned
maintenance." Slip op. at 9. My point, however, is that the
absence of an explicit "at all times" requirement in section
57.11050(a) - unlike sections 57.8518(a) and 57.8534(a),
which explicitly require mine fans to be run "continuously"
- provides the Secretary enough regulatory flexibility to
effectively administer the standard. Furthermore, the two
regulations cited by the majority illustrate that when
the Secretary promulgated the Part 57 regulations, she
knew just how to say "at all times," yet did not do
so in section 57.11050(a).
[4]: The purpose of section 57.11050(a) is to ensure
that miners working underground are provided escapeways. The
Gomez letter is not "logically consistent" with this goal.
See General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir.
1995).
[5]: I disagree with the majority's claim that this
dissent, together with Commissioner Beatty's dissent,
"would leave the miners' escapeway protection standard in
legal limbo while [the] suggested rulemaking process
occurs." Slip op. at 11. This issue has been in litigation
for several years now. There is no indication in the record
that there is now suddenly a compelling need to rush to
judgment and fashion a new rule imposing a brand new "at
all times" requirement. Moreover, I fear that the
majority's course will be more unworkable than that urged in
the dissents because the majority imposes a new solution
on all concerned without the benefit of input from
miners, operators, or even the Secretary's experts.
[6]: The majority's reading of Sellersburg is
incorrect. That case does not allow the Commission to eschew
a remand "where there [is] no dispute between [the]
Secretary and operator regarding [the] penalty." Slip
op. at 12. Instead, under Sellersburg, "the Commission's
entering of undisputed record information as findings
[on the criteria is] proper under the [Mine] Act."
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1153
(7th Cir. 1984).
4
Commissioner Beatty, dissenting:
I respectfully dissent from the holding of my colleagues
in the majority regarding their reading of the escapeway
requirements of 30 C.F.R. � 57.11050(a). Slip op. at 7-9.
Instead, I concur in Commissioner Verheggen's position in
favor of affirming the judge's decision in result based on the
Secretary's failure to articulate a consistent means of
application of the standard. Further, it is clear that the
Secretary has failed to offer a reasonable interpretation of
the standard that warrants the Commission's deference. I
write separately from Commissioner Verheggen to state my own
separate additional views.
As a threshold matter, I disagree with my colleagues that
the language of section 57.11050(a) is clear and unambiguous.
To the contrary, I find the language of the standard inherently
ambiguous and particularly difficult to reconcile given the
facts of the instant case.[1]
In my view, the language of the standard is ambiguous,
particularly when applied to mining operations that employ
a two-entry escapeway system. The relevant language of
section 57.11050(a) states that, "[e]very mine shall have
two or more separate, properly maintained escapeways to the
surface from the lowest levels which are so positioned that
damage to one shall not lessen the effectiveness of the
others." 30 C.F.R. � 57.11050(a). It is unclear to me,
from reading this language, precisely how the requirement
for two escapeways at all times, as articulated by my
colleagues in the majority, could possibly apply in the
context of an underground mine that has only two escapeways.
The standard explicitly requires that escapeways be
"properly maintained" and "positioned so that damage to one
shall not lessen the effectiveness of the others." Id.
(emphasis added). Where only two escapeways are present,
however, the use of the word others, when referring to the
remaining escapeway, makes no sense unless the drafters
envisioned that underground mining operations would always
have more than two escapeways. Thus, an argument could be,
and in fact has been, made that the standard requires at
least three escapeways to comply.[2] Alternatively, the
standard could be read, as the Secretary has suggested, to
mean that in a two escapeway system, a single escapeway is
permissible during brief periods of routine maintenance.
See Vol. I, Doc. Tab S ("Gomez Response") at 4-5. The point
to all of this, of course, is to illustrate that because of
the standard's ambiguity, even my colleagues in the
majority cannot agree on exactly what the regulation
requires.
Given the ambiguity in the language of the standard when
applied to a mine with two escapeways, I do not agree with
the majority that the standard is plain on its face. In my
view, this ambiguity is the reason why neither of the parties
in this litigation have advanced a reading of section
57.11050(a) that would require continuous access to two
escapeways at all times. In fact, the Secretary, who drafted
and promulgated the standard at issue, did not advance a
plain meaning interpretation of the standard prior to oral
argument before the Commission.[3] Oddly, this leaves my
colleagues in the majority as the driving force behind the
adoption of a plain meaning interpretation[4] of section
57.11050(a) that in theory appears to provide escapeway
protection but which, in practical application, will
seriously inhibit the ability to maintain escapeways in a
manner that will assure miners of their readiness in the
event of an emergency.
Aside from the analytical questions raised by the
majority's position, my primary concern is that the majority
does not address several problems that emerge from a practical
application of its ruling. First, the majority does not
address the question of how an operator can legally maintain
an escapeway under their interpretation of section 57.11050(a).
It is important to note that an escapeway is not limited to
the hoist and shaft or slope areas of a mining operation, but
instead encompasses the entire entryway from the shaft or
slope bottom to the work area. See 30 C.F.R. � 57.4000. As
the majority recognizes, "the nature of the mining industry
presents numerous situations, other than the malfunctioning
of a hoist, where an escapeway may become temporarily
unavailable for a certain period of time." Slip op. at 10.
Indeed, something as serious as a roof failure, or as common
as an accumulation of water, could have the effect of
rendering an escapeway unavailable. The unpredictable nature
of underground mining conditions is undoubtedly one reason
the standard requires "properly maintained" escapeways.
Under the majority's approach to section 57.11050(a), however,
neither maintenance, nor repair of these problems could ever
be legally conducted in a mine with only two escapeways.
Under the majority's approach, once miners are sent
underground to correct an escapeway problem, or to conduct
routine maintenance, the standard is violated. Logic dictates
that if an escapeway is in the process of being maintained,
miners will, out of necessity, be underground and involved
in correcting the problem. Permitting miners underground,
however, directly contradicts the majority's position that
"two escapeways be provided and available at all times when
miners are underground." Slip op. at 10 (emphasis added).[5]
In effect, the majority's engrafting of an "at all times"
requirement onto the language of section 57.11050(a) will
impede the correction of escapeway problems, or place miners
who have been chosen to correct the problem in the very
position that the majority has identified as dangerous.
In my opinion, such an interpretation does not promote "the
primary purpose of the Mine Act ." Id. at 9. To the contrary,
the majority's reading of section 57.11050(a), when carried
to its logical extreme, can result in a situation that
actually inhibits the ability to maintain escapeways.
The majority also fails to recognize the impact that
their plain meaning construction of section 57.11050(a) will
have on compliance with other standards designed to promote
mine safety. Section 57.11050(a) does not exist in a vacuum,
but instead is an integral part of a group of health and
safety standards including, but not limited to, those
relating to the testing and maintenance of shafts, hoists,
and escapeways, whose collective requirements are crucial in
assuring the availability of functional, properly maintained
escapeways in an emergency.[6] The majority's interpretation
of section 57.11050(a) will make it difficult, if not
impossible, to comply with these standards in a mine with
only two escapeways.
Finally, the majority does not address the concerns
associated with the inevitable evacuations that will result
from its interpretation of section 57.11050(a). Under the
majority's view, miners must be evacuated anytime a
situation exists where two escapeways are not "provided at
all times," regardless of the length of time the escapeway
may be out of service. Slip op. at 9. In other words,
even a momentary loss of power at an elevator would result
in a requirement that the mine be evacuated immediately. In
my view, this leads to several specific problems. First, it
is important to recognize that evacuating an underground
mine is quite different than the evacuation of an office
building during a fire drill. Underground evacuation is an
arduous task involving procedures that raise a variety of
safety concerns beyond those associated with the temporary
loss of an escapeway. Second, frequent calls to evacuate
could result in miners developing a "fire drill" mentality
whereby they actually begin to second-guess the need to
evacuate.[7]
My colleagues in the majority characterize my concerns
regarding the possible adverse consequences of a plain
meaning reading of section 57.11050(a) as an extrapolation
of "dire consequences" that is "hypothetical rather than
supported by the record before us." Id. at 10. A close
reading of the record, however, illustrates that many of
these same concerns were previously raised by Akzo on the
record in this proceeding. See, e.g., A. Br. at 14-15 & n.11
(discussion of regulatory requirements for routine
maintenance of hoists and escapeways); id. at 10, 12-13
(problems associated with mandatory evacuation requirement);
Oral Arg. Tr. 20 ("there are a host of required maintenance
and testing regulations for hoists [which] require that
certain maintenance and testing activities be done on a
regular basis."). While the record thus contains several
references to the regulatory compliance problems I have
mentioned, there can be little question that my criticism
of the majority's interpretation of section 57.11050(a) must,
by its very nature, be hypothetical, at least until the
Secretary has had the opportunity to apply that approach in
her future enforcement of that standard. Indeed, the
majority's own criticisms of the Secretary's proposed
interpretation of that standard (the "one-hour" rule) are
also hypothetical.
I find it particularly significant that, as noted above,
the Secretary did not argue during this litigation for a
strict construction of this standard, but instead argued
strongly in favor of an interpretation of section 57.11050(a)
that permitted some flexibility in its application. Why
would the Secretary, who is charged with promulgating and
enforcing health and standards, advance an interpretation of
a regulation that resulted in a reduction in the level of
protection provided to miners? It is obvious from the
Secretary's position throughout this litigation that she
wisely recognized that an unduly restrictive interpretation
of section 57.11050(a) could impede compliance with other
mandatory health and safety standards designed to insure that
escapeways are properly maintained, and inhibit the ability
to correct escapeways problems.[8]
Under the interpretation advanced by the Secretary in
this case, miners could remain underground regardless of the
length of time an escapeway is inoperable so long as it could
be placed back in service and miners withdrawn from the mine
within one hour. Slip. op at 11. I agree wholeheartedly
with my colleagues on both sides of this issue that this
interpretation of section 57.11050(a) does not merit the
Commission's deference. I believe, however, unlike my
colleagues in the majority, that mine safety would be better
served by allowing the Secretary to engage both miners, and
the regulated community, in an attempt to develop a uniform
rule that provides clear guidance on this important matter.
In the alternative, I believe that, at a minimum, we should
allow the Secretary an opportunity to refine her interpretation
of this standard.
Accordingly, for the reasons discussed above, I
respectfully dissent.
Robert H. Beatty, Jr.,
Commissioner
Distribution
W. Christian Schumann, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Mark N. Savit, Esq.,
Patton Boggs. LLP
2550 M Street, N.W.
Washington, D.C. 20037-1350
Francis L. Casey, III, Esq.
Morgan, Lewis & Bockius, LLP
1800 M Street, NW
Washington, D.C. 20036
Michael Duffy, Esq.
National Mining Association
1130 17th Street, NW
Washington, D.C. 20036
Harry Tuggle, Safety and Health Specialist
U.S. Steel Workers of America
Five Gateway Center
Pittsburgh, PA 15222
Judge of Record
Administrative Law Judge George A. Koutras
(Retired)
**FOOTNOTES**
[1]: It is also important to recognize that this
case presents a rather unusual set of circumstances since,
according to the representation of the Secretary's
counsel at oral argument, most metal/non-metal underground
mines have more than two means of escape. Oral Arg. Tr. 35.
[2]: In his concurring opinion, Commissioner Marks
states explicitly that an operator would need to "dig a third
escapeway so that it would be in conformance with the
requirement [of section 57.11050(a)]." Slip op. at 16;
see also slip op. at 20 n.1 (dissent of Commissioner
Verheggen).
[3]: During oral argument, the Secretary did for the
first time advance a plain meaning construction of section
57.11050(a), but it was one that supported her "one-hour
rule" interpretation of that standard, rather than the
interpretation adopted by the Commission majority. Oral
Arg. Tr. 6.
[4]: My colleagues in the majority argue they are
enforcing the plain meaning of the standard, yet they appear
to base their interpretation on a requirement that two
escapeways must be operational "at all times," language
that does not appear anywhere in the regulation. As
Commissioner Marks states in his concurring opinion: "It is
well established that if a regulation's meaning is plain on
its face, it must be interpreted to mean what it says (and
not something different from its plain meaning)." Slip op.
at 17.
[5]: My colleagues in the majority take issue with
this criticism of their "plain meaning" interpretation,
noting that persons necessary to abate a violative condition
may remain in a mine even when other miners are required to
be withdrawn under provisions of the Mine Act relating to
withdrawal orders (section 104(c), 30 U.S.C. � 814(c)) and
imminent danger (section 107(a), 30 U.S.C. � 817(a)). Slip
op. at 9 n.9. These limited exceptions to the general
evacuation requirement envisioned by the majority fail to
effectively rebut my central point, however, since they would
not apply to an operator which sought merely to perform
routine maintenance work or to comply with any of the various
maintenance and inspection requirements applicable to
escapeways and hoists. See infra at 27 n.6. Under the
majority's interpretation of section 57.11050(a), an
operator with a two-escapeway system would thus be
unable to take an escapeway out of service to perform such
work, albeit temporarily, without the risk of being cited
for a violation of this standard.
[6]: See, e.g., 30 C.F.R. � 57.11051 (maintenance
and inspection of escape routes); 30 C.F.R. � 57.11056
(requirements for inspecting, testing, and maintenance of
emergency hoists); 30 C.F.R. � 57.19023 (mandating examination
of wire ropes every 14 calendar days); 30 C.F.R. � 57.19132
(testing of safety catches); 30 C.F.R. � 57.19134 (inspection
of sheaves in operating shafts); 30 C.F.R. � 57.19135
(lubrication of rollers in operating incline shafts).
[7]: This evacuation requirement also appears to
directly conflict with the requirement that a citation
set forth a reasonable abatement period, which is set forth
in section 104(a) of the Mine Act, 30 U.S.C. � 814(a).
[8]: In my view, the holding of the majority that
the language of section 57.11050(a) is clear and unambiguous
is further undermined by its statement that it "carefully
considered the Secretary's arguments in favor of adopting a
1-hour rule." Slip op. at 11. If the language of the
standard is indeed unambiguous, and can support only one
interpretation, there would appear to be little need for
a close examination of other alternative interpretations.