<DOC>
[DOCID: f:va9911co.wais]

 
ISLAND CREEK COAL COMPANY
VA 99-11-R
February 9, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                1730  K  STREET  NW,  6TH  FLOOR

                    WASHINGTON,  D.C.   20006


                        February 9, 2001

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    :       Docket No. VA 99-11-R
                                :
ISLAND CREEK COAL COMPANY       :


BEFORE: Jordan, Chairman; Riley and Verheggen, Commissioners[1]


                              ORDER

BY: Riley and Verheggen, Commissioners

     The Commission issued its decision in this proceeding on
July 31, 2000, in which, by a split vote, it affirmed in result
the judge's decision that Island Creek Coal Company ("Island
Creek") did not violate 30 C.F.R. � 1725(c).  Island Creek Coal
Co., 22 FMSHRC 823, 825 (July 2000).  On August 8, 2000, the
Secretary of Labor filed a Motion for Reconsideration pursuant to
Commission Procedural Rule 78, 29 C.F.R. � 2700.78, requesting us
to reconsider our separate opinions.  Island Creek filed a
response opposing the petition on August 16, 2000.

     This case involved an incident where a miner was standing on
a belt to perform repairs to the drive mechanism of an adjacent
belt.  22 FMSHRC at 823-24.  When the belt on which the miner was
standing, the 5-B belt, was energized and began moving, the miner
was injured.  Id. at 824.  The Secretary cited the operator under
section 1725(c), which requires 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."  From the inception of
this case, however, the Secretary has asserted that the violation
occurred because the 5-B belt was not "locked and tagged out."
See 22 FMSHRC at 826 (Comm'r Riley), 830 (Comm'r Verheggen).  A
belt is locked and tagged out when "`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.'"  Id. at 826.

     The standard under which a Rule 78 petition should be
considered was mentioned briefly in Morgan v. Arch of Illinois,
22 FMSHRC 586 (May 2000), in which the Commission noted that the
petitioner had "not raised any new arguments concerning the
judge's decisions that the Commission [had] not already
considered."  Id. at 586.  Federal appeals courts have held that
under Rule 40 of the Federal Rules of Appellate Procedure, a
petition for rehearing is "appropriate where . . . a petitioner
believes the court has overlooked or misapprehended significant
facts or legal arguments."  Mancuso v. Herbert, 166 F.3d 97, 99
(2d Cir. 1999).  Courts construing motions for reconsideration
made to district courts under Rule 59(e) of the Federal Rules of
Civil Procedure have held that such motions "`should not be
granted, absent highly unusual circumstances, unless the district
court is presented with newly discovered evidence, committed
clear error, or if there is an intervening change in the
controlling law.'"  McDowell v. Calderon, 197 F.3d 1253, 1255
(9th Cir. 1999) (citations omitted, emphasis in original).  Nor
should such petitions "be used to raise legal arguments which
could and should have been made before [a decision] was issued."
Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir. 1998).
The Lockard court noted that "[d]enial of a motion for
reconsideration is `especially soundly exercised when the party
has failed to articulate any reason for the failure to raise the
issue at an earlier stage in the litigation.'"  Id. (citation
omitted); see also GFF Corp. v. Associated Wholesale Grocers,
Inc., 130 F.3d 1381, 1387 (10th Cir. 1997) ("it is ordinarily
inappropriate for a party to raise new legal arguments" in a
motion for reconsideration).

     Petitions made to the Commission under Rule 78 ought, at the
very least, to bring to the Commission's attention facts or legal
arguments the petitioner believes were overlooked or
misapprehended, Mancuso, 166 F.3d at 99, or point to a change in
controlling law, see United States v. Reilly, 91 F.3d 331 (2d
Cir. 1996).  Such petitions should also not merely raise
arguments the Commission has already considered, Morgan, 22
FMSHRC at 586, or attempt to raise new legal arguments, Lockard,
163 F.3d at 1267.

     The gravamen of the Secretary's argument for reconsideration
here is that we failed to reach the issue of whether "the
operator violated the standard because the 5-B belt was
energized."  Mot. at 3.  The Chairman also states in her dissent
that the Secretary has "made clear" in prosecuting this case the
requirement in section 75.1725(c) "that the belt be
de-energized."  Slip op. at 5.

     We find the Chairman's assertion disingenuous.  The Chairman
herself recognized in the first decision in this case that "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."  22 FMSHRC at 835 (separate opinion of the
Chairman and Commissioner Marks).  In fact, she went to great
lengths in that opinion to distance herself from the Secretary's
theory of the case when she and Commissioner Marks stated "we are
not bound by the Secretary's theory in making our determination .
. . .  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 . . . ."  Id.
Indeed, nowhere in this earlier opinion does the Chairman mention
much less discuss what the Secretary had purportedly "made clear
throughout this litigation."  Slip op. at 4.  That is because at
the time the Commission first considered this case, like now, the
fact was and remains that at no stage of these proceedings has
the Secretary ever explicitly argued that one of the bases for
her citation was that the 5-B belt was unexpectedly energized.
In other words, the Secretary has never argued in the
alternative, either before us (including in her petition for
discretionary review) or the judge, that even if her argument
that "blocked against motion" really means "locked and tagged
out" was rejected, that an independent basis for finding Island
Creek liable was that the 5-B belt was energized.  See 30 U.S.C.
� 823(d)(2)(A)(iii) ("Each issue [in a petition for discretionary
review] shall be separately numbered and plainly and concisely
stated, and shall be supported by detailed citations to the
record when assignments of error are based on the record, and by
statutes, regulations, or principal authorities relied upon.").
Although the Chairman states that we have "overlooked" the
Secretary's argument on this point, there was not anything to
overlook because such an argument simply was not there.

     We find that a Rule 78 petition is an inappropriate vehicle
to raise a legal argument that "could . . . have been made" in
the proceedings below.  Lockard, 163 F.3d at 1267.  We find this
especially true in light of the Secretary's failure to explain in
the instant petition why she failed to raise this argument
earlier.  Id.  Accordingly, the Secretary's motion for
reconsideration is denied.[2]


                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner


**FOOTNOTES**

     [1]:  Commissioner Beatty recused himself in this matter and
took no part in its consideration.

     [2]:   We  note with concern that in the instant motion, the
Secretary continues  to  confuse  the  issue when she states that
"the  5-A and the 5-B belts were not locked  and  tagged  out  or
otherwise  blocked  against  motion."   Sec'y Mot. at 3 (emphasis
added).  This statement suggests that locking  and tagging out is
equivalent  to  blocking  against motion, a proposition  we  both
continue to categorically reject as contrary to the regulation at
issue.


Chairman Jordan, dissenting:

     In their initial opinions in this matter, my colleagues
focused almost exclusively on their disapproval of the
Secretary's position that the operator failed to block the
conveyor belt against motion because it was not locked and tagged
out.  Island Creek Coal Co., 22 FMSHRC 823, 825-34 (July 2000).
They reiterate this view in their order denying the Secretary's
motion for reconsideration.  Slip op. at 3 n.2.  However, as
Commissioner Verheggen explained in his initial opinion in this
case, the standard requires that when machinery is being
maintained or repaired, "it must be (1) de-energized and (2)
`blocked against motion.'"  22 FMSHRC at 831 (emphasis added).
Neither the operator nor my colleagues have asserted that only
one of these two requirements need to be met to comply with the
standard.  Nonetheless, my colleagues fail to explain why their
rejection of the Secretary's "lock and tag out" theory should
provide the operator with immunity from disregarding the second
requirement (de-energization) of this regulation.[1]

     Whether or not one agrees with the Secretary's argument
regarding the definition of "blocked against motion," she has
nonetheless made clear throughout this litigation that compliance
with both prongs of the standard is necessary.  As I noted in my
previous dissent in this case, "[t]he 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 836, quoting PDR at 13 (emphasis in original); see also Tr. 25
("There are two requirements in the standard: That the power be
off and that the machinery be blocked against motion.") (Argument
of Secretary's Counsel); Sec'y Post-Hr'g Br. at 10, 12 ("Since
the Contestant failed to lock out and tag out the 5-A and 5-B
belts and did not de-energize the 5-B belt, it violated section
75.1725(c) . . . . [T]he standard requires that two acts must be
performed . . . the power must be turned off and the machinery
must be blocked against motion.") (emphases added); PDR at 12-13
("The judge erred in failing to address and accept the
Secretary's argument that . . . the 5B belt was required to be
deenergized and blocked against motion. . . . The Secretary's
interpretation of the standard . . . requir[es] 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 . . . .) (emphasis in original); Sec'y Mot. at 3 ("The
Secretary's litigation position in the case has always been that
the operator violated the standard both because the 5-B belt was
energized and because the 5-A and the 5-B belts were not locked
and tagged out or otherwise blocked against motion.") (emphasis
in original).  Thus, the Secretary has consistently maintained
that even if the operator fulfills one of the requirements of the
standard, it will be in violation if it fails to obey the second
as well.  See L & T Fabrication & Constr., Inc., 22 FMSHRC 509,
514 (Apr. 2000) (Commission noted that "the two prongs of the
test set forth in the 1996 EAJA amendments are conjunctive (i.e.,
joined by the word `and').  Thus, for an applicant to prevail,
both prongs of the test must be met.").[2]

     Although my colleagues have documented at length their firm
disagreement - indeed, their undisguised pique - with the
Secretary's "lock and tag out theory," they have failed to
explain why their dispute with the Secretary over one requirement
in the standard should grant the operator license to ignore the
other - the explicit additional mandate that the belt be
de-energized.  This is the legal argument that the Secretary has
steadfastly asserted and that my colleagues have clearly
overlooked.  See Mancuso v. Herbert, 166 F.3d 97, 99 (2d Cir.
1999) (petition for rehearing appropriate where significant facts
or legal arguments have been overlooked).

     For these reasons, and for the reasons stated in my initial
opinion in this matter, I would grant the Secretary's motion.


                              Mary Lu Jordan, Chairman


Distribution

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Karl T. Skrypak, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241


**FOOTNOTES**

     [1]:  It is undisputed  that  the  5-B belt was unexpectedly
energized.  See Island Creek, 22 FMSHRC at 824.

     [2]:  The Secretary's position that both requirements of the
standard  must  be  met  to  avoid liability is  in  accord  with
Commission precedent, as well  as  common sense.  For example, in
Ozark-Mahoning  Co., 12 FMSHRC 376 (Mar.  1990),  the  Commission
reviewed  a  decision  involving  a  violation  of  30  C.F.R.  �
57.12016.  The  first  sentence  of  that  standard required that
equipment be deenergized before mechanical work is performed.  12
FMSHRC at 379.  The second sentence required the operator to take
appropriate  measures  to  prevent  reenergization.    Id.    The
Commission  upheld the judge's ruling that the operator's failure
to comply with  the  first  sentence  was sufficient to sustain a
finding of violation, concluding that the two sentences set forth
conjunctive requirements.  Id.