<DOC>
[DOCID: f:va9911cd.wais]
ISLAND CREEK COAL COMPANY
July 31, 2000
VA-99-11-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
July 31, 2000
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. VA-99-11-R
:
ISLAND CREEK COAL COMPANY :
BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen,
Commissioners[1]
DECISION
BY THE COMMISSION:
In this contest proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act"), Administrative Law Judge Avram
Weisberger determined that Island Creek Coal Company
("Island Creek") did not violate 30 C.F.R. � 75.1725(c)[2]
when a miner performed maintenance work on a conveyor belt
while standing on another conveyor belt which was not
blocked against motion. 20 FMSHRC 1395, 1399 (Dec. 1998)
(ALJ). The Commission granted the Secretary of Labor's
petition for discretionary review challenging the judge's
determination. For the reasons that follow, the judge's
decision stands as if affirmed.
I.
Factual and Procedural Background
On September 20, 1998, Ronnie Maggard, a maintenance foreman
at Island Creek's VP 8 underground coal mine, told Charles
Miller, a rock dust motorman, to add oil to a speed reducer
which was part of the drive mechanism of the 5-A conveyor
belt. 20 FMSHRC at 1395-96. He did not instruct Miller to
make sure the belt was locked and tagged out,[3] even though
it was company policy to have belts locked and tagged out
during maintenance or repair work. Tr. 53, 76, 155. Miller
asked Thomas Ray, an electrician, to assist in the task. 20
FMSHRC at 1396. The 5-A belt was located above the 5-B belt
and dumped material onto it. Id.; Jt. Ex. 1. Ray stood on
the 5-B belt, which had been deenergized, in order to pump
oil into the speed reducer which was attached to the 5-A
belt and located 4 to 5 feet above the 5-B belt. Id.
Neither belt was locked and tagged out. Id. The 5-B belt
was unexpectedly energized, traveling 400 feet, and carrying
Ray with it before it was stopped. Id. Ray injured his
hand and as a result was still unable to return to work as
of the date of the hearing, November 12, 1998. Id. at
1395-96.
Following an investigation of the accident, the Department
of Labor's Mine Safety and Health Administration ("MSHA")
issued an order under section 104(d)(1) of the Mine Act, 30
U.S.C. � 814(d)(1), alleging a violation of section
75.1725(c). The order alleged that the violation was
significant and substantial ("S&S")[4] and involved a high
level of negligence by the operator. Gov't Ex. 1. The
operator contested the order and the matter proceeded to
hearing before Judge Weisberger.
The judge found that Island Creek did not violate section
75.1725(c). 20 FMSHRC at 1397-99. He concluded that, based
on the plain meaning of the standard, it did not apply to
the 5-B conveyor belt on which the miner stood because no
maintenance or repairs were being performed on that belt.
Id. at 1397. The judge also rejected the Secretary's claim
that, because maintenance work was performed on the belts
while they were not locked and tagged out, Island Creek
violated the standard. Id. at 1398-99. The judge concluded
that the standard requires machinery undergoing maintenance
or repairs to be blocked against motion but does not require
it to be locked and tagged out. Id.
II.
Disposition
The Secretary argues that the judge erred in finding that
Island Creek did not violate section 75.1725(c) when the
miner stood on the 5-B conveyor belt and performed
maintenance to the 5-A conveyor belt. S. PDR at 8-10. She
contends that the judge incorrectly determined that the term
"on" in the standard does not refer to machinery on which a
miner stands while performing repairs or maintenance to
other machinery. Id. at 8-10. The Secretary also argues
that, because the 5-A and 5-B belts formed an integrated
unit, the judge erred in finding that the standard did not
apply to the 5-B belt when the miner performed maintenance
on the 5-A belt. Id. at 11-12. Further, she contends that
the judge erred in failing to accept the Secretary's
interpretation that belts undergoing maintenance or repairs
must be deenergized and locked and tagged out, at least when
they are not otherwise blocked against motion. Id. at
13-16.
Noting that the original order alleged that it violated
the standard because the 5-B belt was "not blocked against
motion" (IC Br. at 2; Gov't Ex. 1), and that the Secretary
did not move to modify the order to assert the "lock and tag
out" argument, Island Creek argues that the issue of whether
it violated section 75.1725(c) when it failed to lock and
tag out the belts is not properly before the Commission. IC
Br. at 2. On the merits, Island Creek argues that the plain
meaning of section 75.1725(c), as well as case law and MSHA
policy, support the judge's finding that the standard does
not require machinery to be locked and tagged out during
maintenance or repairs. Id. at 5-10. It contends that the
judge correctly found that the standard does not apply to
machinery on which a miner stands to perform maintenance or
repairs on other machinery. Id. at 11-13. Further, Island
Creek argues that the judge correctly determined that the
5-A and 5-B belts were discrete and separate units. Id. at
14.
Commissioners Riley and Verheggen on different grounds
would affirm the judge's decision that Island Creek did not
violate section 75.1725(c). Chairman Jordan and
Commissioner Marks would reverse the judge's decision.
Under Pennsylvania Elec. Co., 12 FMSHRC 1562, 156365 (Aug.
1990), aff'd on other grounds, 969 F.2d 1501, 1505 (3d Cir.
1992), the effect of the split decision is to allow the
judge's decision to stand as if affirmed.
III.
Separate Opinions of Commissioners
Commissioner Riley, in favor of affirming the decision of the
administrative law judge:
For the following reasons, I conclude that the judge
properly determined that Island Creek did not violate 30
C.F.R. � 75.1725(c) when maintenance was performed on the
conveyor belts while they were not locked and tagged out.
Where the language of a regulatory provision is clear, the
terms of that provision must be enforced as they are written
unless the regulator clearly intended the words to have a
different meaning or unless such a meaning would lead to
absurd results. See Dyer v. United States, 832 F.2d 1062,
1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC
1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC
1555, 1557 (Aug. 1993). If, however, a standard is
ambiguous, courts have deferred to the Secretary's
reasonable interpretation of the regulation. See Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir.
1994); accord Secretary of Labor v. Western Fuels-Utah,
Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) ("agency's
interpretation of its own regulation is 'of controlling
weight unless it is plainly erroneous or inconsistent with
the regulation'" (quoting Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945)) (other citations omitted)).
The Secretary's interpretation of a regulation is reasonable
where it is "logically consistent with the language of the
regulation and . . . serves a permissible regulatory
function." See General Elec. Co. v. EP", 53 F.3d 1324, 1327
(D.C. Cir. 1995) (citations omitted). The Commission's
review, like the courts', involves an examination of whether
the Secretary's interpretation is reasonable. See Energy
West, 40 F.3d at 463 (citing Secretary of Labor on behalf of
Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1435,
1439 (D.C. Cir. 1989)); see also Consolidation Coal Co., 14
FMSHRC 956, 969 (June 1992) (examining whether Secretary's
interpretation was reasonable).
I conclude that the language of section 75.1725(c) is not
clear when applied to the facts of this case. In such
situations as here involving an ambiguous standard, the
Secretary has on numerous occasions asserted that the
Commission and its judges must examine her interpretation of
the standard and give deference to that interpretation if it
is reasonable. S. PDR at 6-8; see, e.g., Lafarge Constr.
Materials, 20 FMSHRC 1140, 1143 (Oct. 1998) (Secretary
arguing deference due to her reasonable interpretation of
standard); Harlan Cumberland Coal Co., 19 FMSHRC 1521, 1523
(Sept. 1997) (same). Island Creek was cited for failing to
block against motion the 5-B belt on which the miner stood
while performing maintenance to the 5-A belt. Gov't Ex. 1.
Section 75.1725(c) requires machinery to be "blocked against
motion" when maintenance is performed "on" it. It is not
clear whether the term "on" in the standard only refers to
machinery "to which" maintenance is performed (i.e., the 5-A
belt) or also includes machinery "upon which" a miner stands
(i.e., the 5-B belt) while performing maintenance to other
machinery. Because the standard is not clear in this case,
the Commission and its judges must defer to the Secretary's
interpretation of the standard, provided her interpretation
is reasonable. See Daanen & Janssen, Inc., 20 FMSHRC 189,
192-93 (Mar. 1998) (holding that where "the standard is
ambiguous rather than plain," the Commission "must consider
whether the Secretary's interpretation . . . is
reasonable.").
I conclude that the Secretary's interpretation of the
standard is unreasonable, inconsistent, and wrong. She
erroneously argued to the judge that "blocked against
motion" in the standard means "locked and tagged out" when
applied to conveyor belts and that the operator violated the
standard because it failed to lock and tag out the 5-A and
5-B belts. S. Post-Hearing Br. at 4-5. The Secretary's
interpretation is not consistent with the language of the
regulation. She defines the term "locking and tagging out"
as "a procedure by which a lock and tag are put on the
cathead of a belt at the power source [to ensure] that after
the power is turned off on a belt, no one else can turn the
power back on." S. PDR at 13. However, this "locked and
tagged out" requirement is not mentioned in section
75.1725(c) and there is no indication from the regulatory
history of the standard (see 37 Fed. Reg. 11777 (1972)
(proposed rule); 38 Fed. Reg. 4974 (1973) (final rule)) that
"blocked against motion" means "locked and tagged out."
The Secretary's interpretation of section 75.1725(c) is
contrary to the Mine Act's goal of protecting the safety of
miners. See Dolese Bros. Co., 16 FMSHRC 689, 693 (Apr.
1994) ("A safety standard 'must be interpreted so as to
harmonize with and further . . . the objectives of' the Mine
Act.") (quoting Emery Mining Co. v. Secretary of Labor, 744
F.2d 1411, 1414 (10th Cir. 1984)). Under the Secretary's
interpretation, even if machinery is deenergized and locked
and tagged out, an employee performing maintenance or
repairs to the machinery may still be in danger from the
unexpected movement of the machinery due to the release of
stored mechanical, hydraulic, pneumatic, or other form of
energy. See 29 C.F.R. � 1910.147 (Occupational Safety and
Health Administration regulations for the control of
hazardous energy during servicing and maintenance of
machinery). Thus, the Secretary's interpretation of the
standard does not adequately protect the safety of miners
during maintenance or repair work. However, such protection
can be better achieved if, as stated in section 75.1725(c),
the machinery is deenergized and "blocked against motion" to
prevent the unexpected movement of the machinery.[5]1
The Secretary's interpretation of the standard is also
unreasonable because she erroneously attempts to apply an
electrical procedure, the "locked and tagged out"
requirement, to mechanical non-electrical work. "Lock and
tag out" procedures are specifically required in several
MSHA regulations (see 30 C.F.R. �� 56.12016, 56.12017,
57.12016, 57.12017, 75.511, 77.501), but these involve work
on electrical equipment where there is a danger of
electrical discharge. "Blocked against motion" procedures
are also used in several MSHA regulations (see 30 C.F.R.
�� 56.14105, 57.14105, 75.1725(c), 77.404(c)) but these involve
mechanical maintenance or repair work. In the instant case,
the miner performed mechanical work when he added oil to the
speed reducer on the 5-A belt. 20 FMSHRC at 1396. The
Secretary does not argue and there is no record evidence to
indicate that the miner was exposed to the danger of
electrical discharge when he added oil to the speed reducer.
Furthermore, the preamble to the 30 C.F.R. Part 75 final rules,
which cover mandatory safety standards for electrical and
mechanical equipment, states that section 75.1725 covers
"mechanical equipment" rather than electrical equipment.
38 Fed. Reg. at 4975.
The electrical nature of the "locked and tagged out"
requirement is supported by case law. In Phelps Dodge Corp.
v. FMSHRC, 681 F.2d 1189, 1190, 1192-93 (9th Cir. 1982), the
court held that the Secretary should have applied a "blocked
against hazardous motion" standard (30 C.F.R. � 55.14-29
(1979) (now 30 C.F.R. � 56.14105)) to mechanical work
involving the removal of wedged rocks from a drop chute at a
metal mine instead of applying a "lock out" requirement (30
C.F.R. � 55.12-16 (1979) (now 30 C.F.R. � 56.12016))
intended for work on electrically-powered equipment.
Similarly, the Commission in Mettiki Coal Corp., 13 FMSHRC
760, 766 (May 1991), stated in dictum that the Secretary
should have applied a "blocked against motion" standard (30
C.F.R. � 77.404(c)) to the mechanical repair of a speed
reducer on a conveyor belt at a surface coal mine instead of
applying a "locked and tagged out" standard (30 C.F.R.
� 77.501) intended for electrical work on electric
distribution circuits and equipment. Indeed, the Secretary'
s refusal to acknowledge applicable case law making this
distinction between mechanical equipment that must be
"blocked against motion" and electrical equipment that must
be "locked and tagged out," led to the first Equal Access to
Justice Act (5 U.S.C. � 504) award by the Commission. Ray,
employed by Leo Journagan Construction Co., 20 FMSHRC 1014
(Sept. 1998).
Like the Queen of Hearts in Lewis Carroll's Alice In
Wonderland, who could change the law on a whim and then
arbitrarily decide whose head would roll for unforeseeable
and thus unavoidable offenses, the Secretary stands before
the Commission demanding that we endorse the unsupportable
proposition that in section 75.1725(c), which covers the
maintenance or repair of mechanical equipment, "blocked
against motion" really means "locked and tagged out," as
used in sections 56.12016, 56.12017, 57.12016, 57.12017,
75.511, and 77.501, which apply to electrical equipment.
Because the Secretary's underlying assumption that section
75.1725(c) requires machinery to be "locked and tagged out"
is unreasonable, it is not necessary to analyze the
reasonableness of her interpretation that the standard
applies to the 5-B belt upon which the miner stood when
performing maintenance to the 5-A belt. Such an analysis
would have included interpretative questions such as
whether, for the purposes of section 75.1725(c), the two
conveyor belts were sufficiently integrated structurally and
functionally to form a single piece of equipment (a "belt
system"), or, if they were not a single piece of equipment,
whether the term "on" in the standard means "located upon"
the machinery as well as "performing maintenance or repairs
to" the machinery.
Having found the meaning of section 75.1725(c) to be
ambiguous and having rejected the Secretary's interpretation
of the standard as being clearly unreasonable, I turn next
to what I refer to as the "order argument," raised by
Chairman Jordan and Commissioner Marks (slip op. at 13-14),
that the judge's finding of no violation should be reversed
because the original order stated that the operator violated
the standard because the belt was not "blocked against
motion"[6]2 (Gov't Ex. 1) and the record evidence shows that
the belt was not blocked against motion. Section 113(d)(2)
(A)(iii) of the Mine Act, 30 U.S.C. � 823(d)(2)(A)(iii),
provides that, except for good cause shown, an issue cannot
be considered on review unless it was raised before the
judge. Beech Fork Processing, Inc., 14 FMSHRC 1316, 1319
(Aug. 1992). Despite having every opportunity to do so, the
order argument was never raised before the judge because the
Secretary always maintained that the operator violated
section 75.1725(c) by failing to lock and tag out the belts.
S. Post-Hearing Br. at 4-5. Section 113(d)(2)(A)(iii) of
the Mine Act also provides that "review shall be limited to
the questions raised by the petition." Asarco, Inc., 14
FMSHRC 1323, 1326 (Aug. 1992). The Secretary never raised
the order argument in her petition. Thus, I conclude that
the order argument is not before the Commission because it
was not explicitly raised before the judge or on petition to
the Commission. Nor do I think it was implicitly raised
because the Secretary explicitly defined "blocked against
motion" to mean "locked and tagged out." S. Post-Hearing
Br. at 4-5; see Beech Fork, 14 FMSHRC at 1319-21 (finding
issue not on review because it was not explicitly or
implicitly raised before judge).
The judge correctly analyzed the instant case according
to the "locked and tagged out" interpretation of the standard
argued before him by the Secretary and correctly found it to
be erroneous. Although my analysis differs from that of the
judge, I affirm his decision in result that the operator did
not violate section 75.1725(c) when maintenance was
performed on the conveyor belts while they were not locked
and tagged out.
By failing to block the machinery against motion, Island
Creek's actions were obviously unsafe and my decision in no
way condones its actions. It is unfortunate that the
Secretary has complicated what might have been a simple
case. By again confusing blocking mechanical equipment
against motion with locking and tagging out electrical
equipment, she continues to muddle the law at the expense of
miner safety.
James C. Riley, Commissioner
Commissioner Verheggen, in favor of affirming the decision of the
administrative law judge:
In its July 1982 decision in Phelps Dodge Corp. v. FMSHRC,
the Ninth Circuit highlighted the Secretary's misguided
approach to ensuring the safety of miners performing
mechanical repairs. 681 F.2d 1189 (9th Cir. 1982). In that
case, the Secretary applied to mechanical repairs a standard
designed to ensure the safety of miners performing
electrical repairs. Id. at 119193. Calling the Secretary's
enforcement action "an abuse of discretion" (id. at 1193),
the court observed that the cited standard was "directed to
abatement of the danger of electric shock" and did not
"address the hazards arising from the accidental movement of
electrical equipment while mechanical work is being done
thereon" (id. at 1192).
Now, almost 18 years later, the instant case, Island Creek
Coal Co., underscores the truth of the old adage that the
more things change, the more they stay the same. Here, a
miner, Thomas Ray, was performing mechanical work on a belt
drive mechanism. 20 FMSHRC 1395, 1395-96 (Dec. 1998) (ALJ).
Ray was assisting another miner, Charles Miller, with adding
oil to a speed reducer. Id. at 1396. When the belt on
which Ray was standing was accidentally activated, it
carried Ray 400 feet, resulting in serious injury to him.
Id. Miller and Ray's work entailed no risk whatsoever of
electric shock.
MSHA cited Island Creek under the correct standard, 30
C.F.R. � 75.1725(c), which in my opinion clearly required
that the machinery on which Miller and Ray were working be
"blocked against motion." Yet inexplicably, the Secretary
based her enforcement action against Island Creek on the
fact that Miller and Ray had not locked and tagged out the
belt on which they were working. At the hearing and in her
post-hearing brief, the Secretary argued that, with regard
to conveyor belts, the term "blocked against motion" in
section 75.1725(c) means "locked and tagged out," and that
Island Creek violated the standard because it did not lock
and tag out the belts. S. Post-Hearing Br. at 4-5; Tr.
24-26. Island Creek also addressed this contention in its
post-hearing brief and the judge fully considered it in his
decision. IC Post-Hearing Br. at 16-18; 20 FMSHRC at
1397-98.[7]1 In other words, the basis for the Secretary's
enforcement action is that the belt was not locked and
tagged out, which the Secretary described as an "electrical
plug [being] pulled from a power source and a lock [being]
put on the plug itself, thus preventing it from being
plugged back in." S. Post-Hearing Br. at 4 n.1. She also
defined the term to mean "a procedure by which a lock and
tag are put on the cathead of a belt at the power source [to
ensure] that after the power is turned off on a belt, no one
else can turn the power back on." S. PDR at 13.
It hardly bears stating that section 75.1725(c) does not
require equipment to be locked and tagged out.[8]2 The term
is not mentioned in section 75.1725(c), nor is it defined in
any MSHA regulation or by the Mine Act. Instead, the
standard requires that when machinery undergoes maintenance
or repair, it must be (1) deenergized and (2) "blocked
against motion." The term "blocked against motion" is not
defined in the MSHA regulations or the Mine Act. Under
ordinary usage,[9]3 the term "to block" means "to render
. . . unsuitable for passage or progress by obstruction," and
the term "motion" means "passing from one place . . . to
another." Webster's Third New Int'l Dictionary (1986) at
235, 1475. Therefore, the term "blocked against motion"
means obstructing passage from one place to another. There
is no indication from the plain meaning of section
75.1725(c) that, when applied to conveyor belts, "blocked
against motion" may only be satisfied by locking and tagging
out. The Secretary also did not present any evidence at
trial to show that the only way to block a belt against
motion is to lock it and tag it out.[10]4
I also find compelling the clause of section 75.1725(c)
that allows blocks against motion to be removed "where machinery
motion is necessary to make adjustments." I fail to see how
any such adjustments could feasibly be made if the machinery
were locked and tagged out. Nor has the Secretary explained
this contradiction to her position. More importantly, I
find that the Secretary's enforcement strategy in this case
could well pose significant hazards to the safety of miners
in other situations. It is a matter of common sense that
some machinery, no matter how carefully locked and tagged
out, could, if not blocked against motion, move under the
simple force of gravity (if not other forces, such as stored
mechanical energy), and so injure a miner. I am thus in
complete agreement with the concern expressed by Commissioner
Riley that "[t]he Secretary's interpretation of section 75.1725(c)
is contrary to the Mine Act's goal of protecting the safety of
miners." Slip op. at 5. Locking and tagging out is no substitute
for blocking against motion when mechanical repairs are
performed.[11]5
All these points lead me to the conclusion that, just as
in Phelps Dodge, the Secretary has attempted to fit a square
peg into a round hole, even though a round peg was ready at
hand. I find this inexplicable because it is an attempt to
graft an electrical work safeguard onto a standard which
applies to mechanical work, a lock and tag requirement that
simply does not appear in the plain language of section
75.1725(c). This case is an example of the Secretary
attempting to "prosecute citizens for violating a regulation
that does not exist." Contractor's Sand and Gravel, Inc. v.
FMSHRC, 199 F.3d 1335, 1341 (D.C. Cir. 2000).
The Secretary's confusion of electrical and mechanical
standards is also at odds with Commission precedent. In
Mettiki Coal Corp., the Secretary cited the operator of a
surface coal mine for an improperly functioning lock out
device for a belt on which miners were making mechanical
repairs to a speed reducer. 13 FMSHRC 760, 762 (May 1991).
Although the operator was not required to have the lock out
device engaged when an MSHA inspector discovered that it was
not working (id. at 765-66), the Commission nevertheless
recognized that when mechanical repairs are performed
. . . [a] lock out of the equipment or circuit
is not required. Thus, when mechanical repairs
are being made to mechanical equipment and there
is no danger of contacting exposed energized
electrical parts, MSHA requires only that the
power be turned off and the machinery be blocked
against motion.
Id. at 766.
The Commission addressed similar confusion over mechanical
and electrical work in Ray, employed by Leo Journagan
Construction Co., 20 FMSHRC 1014, 1016 (Sept. 1998), where
in an underlying proceeding, an individual was cited for
failing to lock and tag out a crusher under mechanical
repair. In Ray, a fourmember majority stated that "[t]here
is an urgent need for the Secretary to clarify what
precautions are necessary when employees unclog a crusher,"
including the applicability and feasibility of lockout
procedures in situations where mechanical repairs
necessitate "jogging" a machine to see if repairs have been
successful. Id. at 1026.
I find it unfortunate here that where the Secretary could
simply have argued before the judge that the operator
violated section 75.1725(c) because it failed to block the
belts against motion, she chose instead to erroneously argue
that the "blocked against motion" requirement was equivalent
to a "lock and tag out" requirement developed for electrical
work. This error might have been understandable had it been
made by an inspector in the field. Yet it is the Secretary'
s counsel, at both trial and appellate levels, that has made
this error. I am troubled by the Secretary's apparent
failure to distinguish mechanical standards from electrical
standards, a point that ought to have been settled 18 years
ago with the Ninth Circuit's Phelps Dodge decision.[12]6
Apparently, the Chairman and Commissioner Marks do not
share my concerns regarding the Secretary's confused approach
in this case. They state that "the terms of [section
75.1725(c)] must be enforced as they are written." Slip op.
at 13. They then proceed to write an opinion in which they
would so enforce the standard against Island Creek. Their
approach is at odds, however, with the manner in which the
Secretary chose to enforce section 75.1725(c) in this case.
It is not the role of the Commission to usurp the Secretary'
s enforcement role under the Mine Act and prosecute a
violation C which is essentially what my colleagues suggest
we do. To the contrary, Congress established the Commission
to, among other things, "develop a uniform and comprehensive
interpretation of the law . . . [to] provide guidance to the
Secretary in enforcing the [Mine Act]." Hearing on the
Nomination of Members of the Federal Mine Safety and Health
Review Comm. Before the Senate Comm. on Human Resources,
95th Cong. 1 (1978) (emphasis added). Congress explicitly
charged the Commission "with the responsibility . . . for
reviewing the enforcement activities of the Secretary." Id.
I am not prepared, as my colleagues are, to ignore the
problems posed by the Secretary's litigation posture in this
case. I find that it is more appropriate to attempt to
guide the Secretary to a more reasonable and realistic
appreciation of the distinction between mechanical and
electrical standards.
Accordingly, I find that the judge's conclusion that Island
Creek did not violate section 75.1725(c) is correct, albeit on
grounds different from those upon which the judge relied. I would
thus affirm his decision.
Theodore F. Verheggen, Commissioner
Chairman Jordan and Commissioner Marks, in favor of reversing
the judge:
According to the plain meaning of section 75.1725(c),
an operator must take two actions to insure that miners are
protected from accidental equipment start-ups when repairs
on machinery are performed: (1) turn off the power and (2)
ensure that the machinery is blocked against motion.[13]1
Unless it does both, the operator is in violation of the
standard.
In order to pump oil into the drive mechanism of the 5-A
conveyor belt, Thomas Ray stood on the 5-B belt, which was
located 4 to 5 feet below. 20 FMSHRC 1395, 1396 (Dec. 1998)
(ALJ). Coal on the 5-A belt dumped into the 5-B belt. Id.;
Jt. Ex. 1. There is no dispute that at some point during
the repair, the power on the 5-B belt was turned on. 20
FMSHRC at 1396. It is also undisputed that the 5-B conveyor
belt was not blocked against motion. See IC Br. at 4 ("when
the 5-B belt started to move" Ray was carried on the top).
The accidental start up of the belt caused Ray to be carried
a distance of 400 feet and to sustain injury to his hand.
20 FMSHRC at 1396.
Where the language of a regulatory provision is clear,
the terms of that provision must be enforced as they are
written unless the regulator clearly intended the words to
have a different meaning or unless such a meaning would lead
to absurd results. Utah Power & Light Co., 11 FMSHRC 1926,
1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555,
1557 (Aug. 1993). Both the plain meaning of the regulation
and the order at issue clearly state the nature of Island
Creek's violation here[14]2 C failure to block a belt against
motion. 30 C.F.R. � 75.1725(c); Gov't Ex. 1 at 1 (belt was
not "blocked against motion").
Although the Secretary has argued both below and on
review that the regulation required Island Creek to lock and
tag out the belt during maintenance work (S. PDR at 13-16),
we are not bound by the Secretary's theory in making our
determination as to whether Island Creek violated the
standard. We cannot let the Secretary's more complicated
litigation posture obfuscate the straightforward fact that
Island Creek simply did not block the 5-B belt against
motion, as required by the regulation.[15]3 Consequently,
it was unnecessary for the judge, and remains unnecessary
for this Commission, to rule on the Secretary's contention
that the regulation required the operator to lock and tag
out the machinery.[16]4
The Commission routinely refuses to examine contentions
of the parties that are not necessary for the resolution of
the case before it. See, e.g., Arch of Kentucky, 20 FMSHRC
1321, 1327 n.7 (Dec. 1998); Extra Energy, Inc., 20 FMSHRC 1,
8 n.11 (Jan. 1998); Fort-Scott Fertilizer-Cullor, Inc., 19
FMSHRC 1511, 1516 n.6 (Sept. 1997). Neither the judge nor
our colleagues provide any reason to depart from this
bedrock principle of jurisprudence, and we can discern none
on our own.
We do not agree with Commissioner Riley that we are
prohibited from addressing the plain meaning of the
regulation because the Secretary failed to raise it before
the judge. Riley opinion, slip op. at 6-7. The order was
admitted into evidence, and clearly charges, using the
language of the regulation, that "[t]he 5B conveyor belt
drive was not blocked against motion." See Gov't Ex. 1 at
1.[17]5 To refuse to consider the order as written, as both
our colleagues do, runs directly counter to the Mine Act's
directive that we issue a decision "affirming, modifying, or
vacating the Secretary's . . . order." 30 U.S.C. � 815(d).
Consequently, we find Commissioner Verheggen's commentary
that we are somehow acting outside our proper role in this
case unpersuasive. See Verheggen opinion, slip op. at 11.
We also disagree with Commissioner Riley's statement that
the Secretary never raised this argument in her petition.
Riley opinion, slip op. at 7. In fact, the Secretary's
petition was carefully drafted to explicitly include the
more global "blocked against motion" argument as part of the
"lock and tag out" theory that applied to the specific
situation at Island Creek. S. PDR at 14 n.4 ("[I]n the mine
in this case, locking and tagging out is the only viable
method for blocking against motion. . . . [T]his is not a
case where the operator argued that it had blocked the belts
against motion in some way other than locking and tagging
out."); see also id. at 13 ("The Secretary's interpretation
of the standard . . . [requires] that belts on which miners
are working be deenergized and locked out, at least where,
as here, the belts are not otherwise blocked against
motion"); id. at 15 n.5 ("The operator in this case neither
locked and tagged the belts against motion, nor tried to
block them in some other way.").
In addition, we are frankly puzzled by, and thus briefly
comment on, our colleagues' indignation regarding the
Secretary's "lock and tag out position," indignation that
leads them to vacate the order at issue here. Charges that
the Secretary's interpretation "does not adequately protect
the safety of miners," Riley opinion, slip op. at 5, or that
it impermissibly applies an electrical procedure to
mechanical work, id., Verheggen opinion, slip op. at 9-11,
are truly perplexing given the consistent assertions by
Island Creek's miners, foremen, and counsel, that locking
and tagging out the belts was precisely what Island Creek's
safety policies required. Miners Ray, Charles Miller, and
Tommy Proffit all testified that they had been told to lock
and tag out belts. Tr. 40, 55, 59, 74, 102. In fact,
Miller and Proffit even stated that they had been told by
Island Creek management that this was a legal requirement.
Tr. 76, 102. Island Creek foremen Elmer Deel and Ronnie
Maggard verified that the company's policy required miners
to lock and tag out belts. Tr. 120, 156-57. Notes from
Island Creek safety meetings confirm that this was the
procedure taught to miners. IC. Ex. 1.[18]6 At the
hearing, Island Creek's counsel also asserted that this mine
"require[s] a higher standard of care from their employees .
. . [and] as a matter of practice, we do require for
mechanical work that the equipment be locked and tagged
out." Tr. 31.
In fact, locking and tagging out the belts is the only
feasible manner of blocking the belts against motion (the
actual regulatory requirement) that is mentioned in the
entire record of this case. There was universal acceptance
of a lock and tag out policy by everyone affiliated with
Island Creek who appeared at the hearing. There is also a
complete lack of record evidence both as to why it might be
dangerous and how the belts could otherwise be blocked
against motion. Accordingly, our colleagues' assertion that
a lock and tag out policy does not adequately protect miner
safety (Riley opinion, slip op. at 5; Verheggen opinion,
slip op. at 9-10), constitutes a finding without record
support.
Although Island Creek failed to insure that the 5-B belt
was blocked against motion, and therefore failed to comply with
the explicit mandate contained in section 75.1725(c), our
inquiry cannot end here. Island Creek also contends that it
was unreasonable for the Secretary to apply section 75.1725's
requirements to the 5-B belt, the one upon which Ray was
standing. The operator argues that since the maintenance
was performed on the 5-A belt, only that belt came under the
purview of the regulation while Ray added oil to the speed
reducer. IC Br. at 11. The judge agreed with Island Creek
that the standard only applied to the 5-A belt. 20 FMSHRC
at 1397.
It is this section of the regulation that we find ambiguous,
because the requirement that "repairs or maintenance shall
not be performed on machinery" does not make clear whether
it is restricted to machinery that is being repaired, or
also includes machinery on which a miner is standing to
perform the repair. If a standard is ambiguous, courts have
deferred to the Secretary's reasonable interpretation of the
regulation. See Energy West Mining Co. v. FMSHRC, 40 F.3d
457, 463 (D.C. Cir. 1994); accord Secretary of Labor v.
Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990)
("agency's interpretation of its own regulation is 'of
controlling weight unless it is plainly erroneous or
inconsistent with the regulation'" (quoting Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other
citations omitted). The Secretary's interpretation of a
regulation is reasonable where it is "logically consistent
with the language of the regulation and . . . serves a
permissible regulatory function." See General Elec. Co. v.
EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations
omitted). The Commission's review, like the courts',
involves an examination of whether the Secretary's
interpretation is reasonable. See Energy West, 40 F.3d at
463 (citing Secretary of Labor on behalf of Bushnell v.
Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439 (D.C. Cir.
1989)); see also Consolidation Coal Co., 14 FMSHRC 956,
966-69 (June 1992) (examining whether Secretary's
interpretation was reasonable).
The Secretary interprets section 75.1725(c) to apply
both to machinery on which miners stand to perform repair or
maintenance work, and to the machinery to which the repair
or maintenance work is being performed. S. PDR at 8. The
Secretary argues that to repair one piece of equipment,
miners must sometimes position themselves on or adjacent to
another piece of equipment. Id. at 9-10. In light of this
fact, she maintains that the fundamental protective
objective of section 75.1725(c) can only be realized if it
is interpreted to also apply to machinery with which miners
come into contact during repair work. Id. She urges the
Commission to reject a restrictive interpretation of the
standard that would protect miners only from the dangers
caused by the accidental movement of machines undergoing the
repair, but would leave them vulnerable to the equally
harmful safety hazards of adjacent machinery. We find this
approach eminently reasonable.[19]7
In Walker Stone Co. v. Secretary of Labor, 156 F.3d.
1076 (10th Cir. 1998), the Tenth Circuit eschewed the narrow
approach to the standard urged by Island Creek here. In
that case, a miner removing rocks which had clogged the
crusher was killed when the crusher was accidentally
restarted. Id. at 1079. Walker Stone was cited under a
standard almost identical to the one at issue in this
case.[20]8 The operator first maintained that the standard
was inapplicable because removing rocks could not constitute
repair or maintenance work. Alternatively Walker Stone
contended that even if the work was considered repair or
maintenance, the standard was still inapplicable "because
the work was actually being performed on the rocks rather
than on the crusher." Id. at 1082. The court rejected that
literal approach, endorsing instead the Commission's broad
reading of the standard as "consistent with the safety
promoting purposes of the Mine Act," and one that avoided
"anomalous results." Id.
Under the approach urged by Island Creek, miners repairing
equipment would be protected from accidental movement by the
equipment undergoing repair but would have no protection
from the accidental movement of equipment they might find it
necessary to stand upon or lean against in order to perform
the repair or maintenance work. Their protection under the
standards would therefore depend on the location of the
equipment needing the repair or maintenance. The less
accessible the equipment being repaired, the less protection
would be afforded by the standard. We reject an
interpretation that would lead to such an absurd result.
See Rock of Ages Corp., 20 FMSHRC 106, 122 (Feb. 1998) (to
avoid absurd results, explosives training standard must be
interpreted to require training in the type of explosives
actually used); aff'd in pertinent part, 170 F.3d 148 (2d.
Cir. 1999); Consolidation Coal Co., 15 FMSHRC at 1557
(judge's construction of an escapeway standard could lead to
absurd results).
In this case, the Secretary also maintains that the 5-B
belt was an integral part of the 5-A and 5-B belt transfer
point, and that the work performed by Ray should be considered
a repair of the entire belt transfer machine, which contains
5-B. S. PDR at 11-12. A careful review of the evidence
regarding these belts indicates that they formed an almost
seamless unit, with the belts mounted contiguously. See
Joint Ex. 2A-2D, 2G. Furthermore, testimony at trial
demonstrated that the miners performing the maintenance work
believed that, at least at the transfer point area, the
belts formed one unit. Ray testified that he did not check
to make sure that the 5-B belt was locked and tagged out
before he started his maintenance work on the speed reducer
because "[w]e were working there all day. . . . I didn't
stop to consider that this was a new order, new job . . . .
I just thought it was a continuation of what we were doing."
Tr. 40.[21]9 Miller testified that he did not verify
whether the 5-B belt was deenergized "[b]ecause [he] made an
assumption that C being that work was already being done at
that speed reducer, [he] just made an assumption that it was
already locked out." Tr. 73.
In construing the identical regulation in Arch of Kentucky,
Inc., 13 FMSHRC 753, 756 (May 1991), the Commission recognized that
"[t]he purpose of section 75.1725(c) is to 'prevent, to the
greatest extent possible, accidents in the use of [mechanical]
equipment.' . . . A safety standard should be construed to
effectuate its purpose." (citations omitted). We agree and would
reverse the judge's decision.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Elizabeth Chamberlin, Esq.
Robert Vukas, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
**FOOTNOTES**
[1] Commissioner Beatty recused himself in this matter and
took no part in its consideration.
[2] Section 75.1725 states in pertinent part: "(c) Repairs
or maintenance shall not be performed on machinery until the
power is off and the machinery is blocked against motion,
except where machinery motion is necessary to make
adjustments." 30 C.F.R. � 75.1725(c).
[3] Under regulations covering electrical equipment, the
term "locked and tagged out" as used in 30 C.F.R. ��
56.12016, 56.12017, 75.511, and 77.501 means that the power
is turned off by switching the breaker and a lock and tag is
placed on the cathead of the equipment so the power cannot
be turned on. Tr. 49-50, 73-74; S. Post-Hearing Br. at 4
n.1.
[4] The S&S terminology is taken from section 104(d)(1) of
the Act, 30 U.S.C. � 814(d)(1), which distinguishes as more
serious any violation that "could significantly and substantially
contribute to the cause and effect of a . . . mine safety or
health hazard."
[5] I concur with Commissioner Verheggen (slip op. at 10
n.5) that it is troubling that my colleagues voting in favor
of reversing the judge (slip op. at 15) place great
significance on the operator's internal policies requiring
lock and tag out procedures when they conclude that section
75.1725(c) requires the conveyor belts to be locked and
tagged out. This is particularly troubling because the
operator's policies are clearly at odds with the plain
meaning of the standard at issue.
[6] Although the term "blocked against motion" in the
order (Gov't Ex. 1) is the same as the term used in the
standard, the Secretary's assertions about the meaning of
the term have confused the issue. The Secretary did not
call the inspector to testify as to his reasons for issuing
the order. The only indication in the record of MSHA's
definition of the term "blocked against motion" as used in
the order was provided by the Secretary who claimed it means
"locked and tagged out." S. Post-Hearing Br. at 4-5. Thus,
it is not clear whether, when the inspector issued the
order, he meant the term to mean any method to prevent the
motion of the belt or only the "locked and tagged out"
procedure asserted by the Secretary. Given the Secretary's
unreasonable interpretation of the term "blocked against
motion" which the judge correctly rejected (20 FMSHRC at
1398) and given the confusion surrounding the meaning of the
term in the order, I disagree with Chairman Jordan and
Commissioner Marks (slip op. at 13-14, 18) that the use of
the term "blocked against motion" in the order is a
sufficient basis for reversing the judge's decision.
[7] I disagree with Island Creek's contention that,
because MSHA's order did not state that Island Creek failed
to lock and tag out the belts, and because the Secretary did
not move to modify the order to assert her "lock and tag
out" argument, that argument is not properly before the
Commission. The parties litigated the lock out/tag out
issue at trial, and it is well established that "Rule 15(b)
of the Federal Rules of Civil Procedure . . . permits [trial
and appellate] adjudication of issues actually litigated by
the parties irrespective of pleading deficiencies." See
Faith Coal Co., 19 FMSHRC 1357, 1362 (Aug. 1997).
[8] 2 Where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they
are written unless the regulator clearly intended the words
to have a different meaning or unless such a meaning would
lead to absurd results. Dyer v. United States, 832 F.2d
1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11
FMSHRC 1926, 1930 (Oct. 1989).
[9] 3 In the absence of an express regulatory definition
or an indication that the drafters intended a technical usage,
the Commission has relied on the ordinary meaning of the
word construed. Peabody Coal Co., 18 FMSHRC 686, 690 (May
1996), aff'd, 111 F.3d 963 (D.C. Cir. 1997) (table).
[10] 4 Lock and tag out procedures are required by some
MSHA regulations (see, e.g., 30 C.F.R. �� 56.12016,
56.12017, 57.12016, 57.12017, 75.511, 77.501), but these
deal specifically with electrical equipment rather than
mechanical equipment such as conveyor belts. MSHA
regulations require "blocked against motion" procedures when
performing mechanical repairs or maintenance to equipment
(see, e.g., 30 C.F.R. �� 56.14105, 57.14105, 75.1725(c),
77.404(c)).
[11] I find troubling the suggestion made by my
colleagues voting in favor of reversing the judge that we
ought to accept locking and tagging out belts on which
repairs are being performed because of the "universal
acceptance of a lock and tag out policy by everyone
affiliated with Island Creek who appeared at the hearing."
Slip op. at 15. I fail to see how any such policy, however
enthusiastically or universally endorsed by an operator, can
be used as guidance in a case such as this when the policy
is at odds with the plain language of the standard at issue.
Indeed, I find this suggestion of my colleagues particularly
puzzling in light of the fact that they do not hesitate to
find a violation of the standard's plainly stated
requirement that machinery must be blocked against motion.
They leave hanging the question of how their holding squares
with Island Creek's policy.
[12] Similarly, in the Ray case, the Secretary did not
address Phelps Dodge C "indeed, in her posthearing brief,
[she] chose to ignore the case altogether." 20 FMSHRC at
1025. The Secretary lost her case against Ray, and also was
ordered to pay his legal bills. Id. at 1029.
[13] Section 75.1725(c) states that "[r]epairs or
maintenance shall not be performed on machinery until the
power is off and the machinery is blocked against motion,
except where machinery motion is necessary to make
adjustments." 30 C.F.R. � 75.1725(c).
[14] Although we agree with Commissioner Riley that part
of the regulation is ambiguous (because the words "on
machinery" can mean machinery "to which" maintenance is
performed, or "upon which" a miner stands to perform it),
Riley opinion, slip op. at 4, this does not render the "turn
off the power" and "blocked against motion" language
ambiguous. Rather, that language should still be
interpreted according to its plain meaning. See American
Train Dispatchers Ass'n v. ICC, 54 F.3d 842, 848 (D.C. Cir.
1995) (deference to agency interpretation of term contained
in regulation only appropriate where meaning of that term is
ambiguous).
[15] Commissioner Riley is incorrect when he claims that
we "conclude that section 75.1725(c) requires the conveyor
belts to be locked and tagged out." Riley opinion, slip op.
at 5 n.1. Nothing in our opinion can be reasonably read to
support such a statement.
[16] Consideration of the Secretary's position is better
left to a case in which the operator can reasonably contend
that its machinery was "blocked against motion," but not
locked and tagged out. This is not such a case.
[17] In fact, Island Creek calls attention to this
language in its brief, complaining that the Secretary should
have modified the order to reflect her "lock and tag" out
theory. IC Br. at 2.
[18] The notes from the safety meeting of December 1,
1997, state that:
Belts can be very dangerous if correct work habits
are not followed and if we do not lock and tag the
cathead out at the power source when we are going
to work on any belt for any reason. No work shall
be started on any belt until it is verbally
confirmed that the belt has been properly locked
and tagged out.
IC. Ex. 1 at 6.
[19] 7 The Secretary also contends that the regulation
applies to both the 5-A and 5-B belts because the definition
of the word "on" means both "upon" (or "on top of
machinery") and "to" machinery. S. PDR at 8-9. This is a
permissible reading of the regulation, and thus is entitled
to deference. See Island Creek Coal Co., 20 FMSHRC 14,
18-19, 23 (Jan. 1998). The judge erred by framing the
question as asking whether the fact that Ray stood on the
5-B belt constituted maintenance of that belt (20 FMSHRC at
1397) improperly focusing on the word "maintenance" instead
of the word "on."
[20] 8 Walker Stone was cited under 30 C.F.R. � 56.14105,
the surface mine counterpart to section 75.1725(c), which
applies to underground coal mines. 156 F.3d at 1079.
[21] 9 Testimony revealed that the prior work in that
area was replacement of a broken roller on the 5-A belt drive.
Tr. 36, 96-7, 119.