Alcoa Alumina & Chemicals, L.L.C.

Plain-English summary

Alcoa Alumina & Chemicals operated the Bayer Alumina Plant at Point Comfort, Texas, which processed bauxite into alumina. MSHA found that more than 80 supervisors lacked annual refresher training and six salaried employees lacked hazard training, then issued withdrawal orders under Mine Act section 104(g)(1). The Commission held that the Part 48 training rules apply to milling operations because the Secretary's interpretation was reasonable and consistent with the Mine Act and the rule's preamble. It affirmed the Judge's decision in result and left the significant-and-substantial findings for the two training violations in place.

Decision snapshot

• Cited standards: 30 C.F.R. § 48.28(a); 30 C.F.R. § 48.31(b)
• Outcome: The Judge's decision finding two significant-and-substantial training violations was affirmed in result.
• Key point: Part 48 training requirements cover milling operations, including stand-alone mills covered by the Mine Act.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                   September 14, 2001

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

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

                                        DECISION

BY THE COMMISSION:

   This civil penalty proceeding arises under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”). At issue is whether Administrative
Law Judge Jacqueline R. Bulluck correctly determined that Alcoa Alumina & Chemicals, L.L.C.
(“Alcoa”) violated 30 C.F.R. §§ 48.28(a)1 and 48.31(b).2 22 FMSHRC 1484, 1486-92 (Dec.
2000) (ALJ). For the following reasons, we affirm the judge’s decision in result.

                                             I.

                          Factual and Procedural Background

   Located in Point Comfort, Texas, Alcoa’s Bayer Alumina Plant (“Point Comfort”)

produces alumina from bauxite. 22 FMSHRC at 1485. At the plant, the bauxite is ground and

   1
    Section 48.28(a), entitled “Annual Refresher Training of Miners,” provides in part:

“Each miner shall receive a minimum of 8 hours of annual refresher training.”
2
Section 48.31, entitled “Hazard Training,” provides in part: “(a) Operators shall provide
to . . . miners . . . a training program before such miners commence their work duties. . . .
(b) Miners shall receive the instruction required by this section at least once every 12 months.”

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mixed with sodium hydroxide to form a slurry. Id. The slurry is combined with steam under
high heat and pressure, producing sodium aluminate. Id. The sodium aluminate is then clarified,
which removes mud solids from the solution. Id.; Tr. 173. The solution next undergoes
precipitation, which produces hydrated alumina. Tr. 173. After a drying process called
calcination, alumina is produced. 22 FMSHRC at 1485; Tr. 173.

    On July 13, 1999, the San Antonio Field Office of the Department of Labor’s Mine

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

    As a result, the inspector issued Order Nos. 7879697 and 7879698 under Mine Act

section 104(g)(1), 30 U.S.C. § 814(g)(1),3 for violations of sections 48.28(a) and 48.31(b). Id.
Alcoa contested the orders and a hearing was held. The judge found that Point Comfort’s
processing of bauxite was a milling operation, subject to the jurisdiction of the Mine Act. Id. at
1485. She rejected Alcoa’s position that, because the plant was neither a surface mine nor a
surface area of an underground mine, but a milling operation, it was not subject to MSHA’s Part
48 training regulations. Id. at 1487. The judge concluded that 30 C.F.R. § 48.21, the scope
provision for both sections 48.28(a) and 48.31(b), was plain and that the term “mine” as used in
the provision included any operation that constituted a mine under section 3(h)(1) of the Mine
Act, 30 U.S.C. § 802(h)(1). Id. She determined that Alcoa violated section 48.28(a) because
supervisory and salaried miners had not received annual refresher training. Id. The judge
concluded that the violation was significant and substantial (“S&S”) as there was a reasonable
likelihood that supervisory and salaried miners, not updated periodically on safe plant

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

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


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procedures, could be seriously injured by machinery or chemicals. Id. at 1488. Likewise, the
judge determined that Alcoa committed an S&S violation of section 48.31(b) because six salaried
employees had not received hazard training. Id. at 1491-92.

   Alcoa filed a petition for discretionary review, challenging the judge’s finding that 30

C.F.R. Part 48 applied to Point Comfort, which the Commission granted.

                                             II.

                                        Disposition

    Alcoa argues that the training requirements contained in Part 48 do not pertain to Point

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

    The Secretary responds that the judge correctly determined that Part 48 plainly applies to

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

    Where the language of a regulatory provision is clear, the terms of that provision must be

enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, a standard is
ambiguous, courts have deferred to the Secretary’s reasonable interpretation of the regulation.
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec’y of
Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) (“agency’s interpretation
of its own regulation is ‘of controlling weight unless it is plainly erroneous or inconsistent with
the regulation’” (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (other
citations omitted). The Secretary’s interpretation of a regulation is reasonable where it is
“logically consistent with the language of the regulation and . . . serves a permissible regulatory

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function.” See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations omitted).
The Commission’s review, like the courts’, involves an examination of whether the Secretary’s
interpretation is reasonable. See Energy West, 40 F.3d at 463 (citing Sec’y of Labor on behalf of
Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439 (D.C. Cir. 1989)); see also
Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (examining whether Secretary’s
interpretation was reasonable). Additionally, “a regulation must be interpreted so as to
harmonize with and further and not to conflict with the objective of the statute it implements.”
Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984) (citation omitted).

    Sections 48.28(a) and 48.31(b) are contained in subpart B of the Secretary’s Part 48

standards. The scope of subpart B is set forth in section 48.21. That section states in pertinent
part:

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

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

     Our first inquiry is whether the text of section 48.21 is plain. Both parties advance plain

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

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explicitly apply to them. See 30 C.F.R. §§ 50.30-1(g) and 56.20012 (specifying requirements for
“mill operations” and “milling,” respectively). However, we are not convinced by Alcoa’s plain
language interpretation, particularly given its failure to address the statutory definition of a mine,
which includes milling operations.

   Because Part 48, subpart B is silent on whether a milling operation constitutes a surface

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

    We turn next to the question whether the Secretary’s interpretation of section 48.21 is

reasonable. The Secretary’s interpretation (that a milling operation is a surface mine under Part
48) is consistent with the preamble to the regulations. The preamble to Part 48 explains the
coverage of the rules:

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

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

    We must also examine whether the Secretary’s interpretation of Part 48 is consistent with

Mine Act section 115, 30 U.S.C. § 825, the statutory section that Part 48 implements. See 43
Fed. Reg. at 47,454 (preamble indicating that Part 48 implements Mine Act section 115); Emery,
744 F.2d at 1414 (construing Part 48 in light of Mine Act section 115). Section 115(a) states:
“Each operator of a coal or other mine shall have a health and safety training program which
shall be approved by the Secretary.” 30 U.S.C. § 825(a). The section requires that “all miners”
are to receive annual refresher training. 30 U.S.C. § 825(a)(3). Miners are defined in section

   4
       The preamble’s explicit inclusion of milling contradicts Alcoa’s arguments in its PDR

and opening brief that the preamble should be read to exclude milling. PDR at 4-6; A. Br at 6-8.
In its reply, Alcoa asserts, inconsistently with its prior argument, that the preamble should not in
fact be considered. A. Reply Br. at 4-6.
5
Additionally, the Secretary’s construction is not inconsistent with the literal terms of
section 48.21.
23 FMSHRC 915

Page 6

3(g) of the Act as “any individual working in a coal or other mine.” 30 U.S.C. § 802(g).
Because mills are included in the definition of “mine” under Mine Act section 3(h)(1), the
Secretary’s interpretation, i.e, that the phrase “surface mines” should be read to include mills, is
consistent with the Mine Act.

    On the other hand, Alcoa’s construction, which excludes mills from Part 48’s coverage,

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

    Because the Secretary’s interpretation that a milling operation qualifies as a surface mine

under Part 48 is reasonable, logically consistent with the language of the regulation, and serves a
permissible regulatory function in furtherance of the Mine Act’s safety goals, we defer to it.7
Rock of Ages Corp., 20 FMSHRC 106, 112 (Feb. 1998), aff’d in part, 170 F.3d 148 (2d Cir.
1999); Cannelton, 867 F.2d at 1435. Accordingly, we affirm the judge’s decision that Part 48,
subpart B applies to Point Comfort, and that Alcoa committed S&S violations of sections

   6
       The legislative history reveals that Congress was aware of and concerned about the

health and safety hazards for miners in mills. H. Rep. No. 95-312, at 6-9, 11-13 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Res., 95th Cong., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 362-65, 367-369 (1978) (“Legis. Hist.”)
(bringing mills specifically under the jurisdiction of the Mine Act and discussing the potential
hazards of mills including toxic exposure to iron oxide, radon, mercury and manganese).
Congress also considered training of miners to be of paramount importance for mine safety. See
Legis. Hist. at 362 (citing one of the causes for the Sunshine Silver Mine fire, in which 91 miners
lost their lives, to be the failure to train miners in self-rescue and survival techniques); id. at 637­
638 (stating that “the Committee considers the presence of miners in a dangerous mine
environment who have not had even the rudimentary training of self-preservation and safety
practices inexcusable.”). In fact, Congress provided MSHA with one of the most potent tools
under the Act — a withdrawal order — for training violations. 30 U.S.C. § 814(g).
7
Chairman Verheggen states: For the reasons stated in my dissent in Cyprus
Cumberland Resources Corp., 21 FMSHRC 722, 737-38 (July 1999), appeal docketed sub nom.
RAG Cumberland LP v. FMSHRC, No. 00-1438 (D.C. Cir. Oct. 10, 2000), I would “accord
special weight,” rather than defer, to the Secretary’s interpretation of the regulations at issue here.
See Helen Mining Co., 1 FMSHRC 1796, 1801 (Nov. 1979).

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48.28(a) and 48.31(b) by failing to provide the requisite training.8

                                             III.

                                        Conclusion

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




                                          ____________________________________
                                          Theodore F. Verheggen, Chairman



                                          ____________________________________
                                          Mary Lu Jordan, Commissioner



                                          ____________________________________
                                          James C. Riley, Commissioner



                                          ____________________________________
                                          Robert H. Beatty, Jr., Commissioner




   8
      In cases involving ambiguous standards, the issue of whether the operator had adequate

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

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Distribution

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

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

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

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