Secretary of Labor v. United Salt Corporation

Plain-English summary

Two MSHA inspectors verbally issued a section 104(d)(1) predicate citation and a later withdrawal order during the same inspection, then reduced both to writing and delivered them the next morning. United Salt argued that the predicate citation had to be written and physically served before the order could begin the section 104(d) chain. Judge Margaret A. Miller held that the statute does not require written service before a later order, that immediate verbal enforcement protects miners without delaying the inspection, and that prompt later writing provided adequate notice. She granted partial summary decision to the Secretary and denied United Salt's cross-motion while leaving the underlying violation, S&S, and unwarrantable-failure merits for hearing.

Decision snapshot

• Governing provision: 30 U.S.C. § 814(d)(1)
• Outcome: The Secretary received partial summary decision that the withdrawal order validly followed a verbal predicate citation; the merits remained unresolved.
• Key point: MSHA may verbally issue a section 104(d)(1) predicate citation and proceed to a later verbal withdrawal order during the same inspection, provided the enforcement actions are reduced to writing as soon as practicable.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

FFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, COLORADO
80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

September 24, 2015

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner,

v.

UNITED SALT CORPORATION,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket No. CENT 2015-98

A.C. No. 41-02478-000364520

Mine: Hockley Mine

ORDER DENYING RESPONDENT’S MOTION FOR PARTIAL SUMMARY
DECISION

AND

ORDER GRANTING SECRETARY’S MOTION FOR PARTIAL

SUMMARY DECISION

Before:            Judge
Miller

This case is
before me upon a petition for assessment of a civil penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(d). United Salt Corporation (hereinafter “United Salt” or the
Respondent) has contested the two enforcement actions covered by the
Secretary’s penalty petition, a citation and order both issued pursuant to
section 104(d)(1) of the Mine Act. On August 21, 2015, United Salt Corporation
filed a Motion for Partial Summary Decision under Rule 67 of the Commission’s
Procedural Rules, 29 C.F.R. § 2700.67. The Respondent’s motion includes as
exhibits copies of the disputed citation and order, and excerpts from
deposition testimony of the issuing inspectors. On September 2, 2015, the
Secretary filed a Motion for Partial Summary Decision and an accompanying Brief
in Support of Cross-Motion for Summary Decision and in Opposition to
Respondent’s Motion for Summary Decision. The Secretary’s brief in support of
his motion includes as exhibits copies of the inspectors’ notes on the disputed
citation and order (designated as “Documentation”), the complete transcripts of
the deposition testimony of the issuing inspectors, and sworn declarations made
by the inspectors and their supervisor. United Salt responded to the
Secretary’s cross motion on September 15, 2015. For the reasons set forth
below, I DENY United Salt’s motion and GRANT the Secretary’s
motion.

On August 20,
2014, the Secretary issued section 104(d)(1) Order No. 8769489 and section
104(d)(1) Citation No. 8776991 at United Salt’s Hockley Mine. The violations
charged in both the citation and order were designated as having been the
result of United Salt’s unwarrantable failure to comply with the cited
standards.1 Both
motions made by the parties concern what is

commonly referred to as the section
104(d) chain. Section 104(d) creates a “chain” of increasingly severe sanctions
that serve as an incentive for operator compliance. See Naaco Mining Co.,
9 FMSHRC 1541, 1545-46 (Sept. 1987). Under section 104(d)(1), if an inspector
finds a violation of a mandatory standard during an inspection, and finds that
the violation is significant and substantial (S&S)2 and that it is also caused by an
unwarrantable failure to comply with a mandatory standard, the inspector issues
a citation under section 104(d)(1). 30 U.S.C. § 814(d)(1). That citation
is commonly referred to as a section 104(d)(1) citation or a predicate
citation. See Greenwich Colleries, Div. of Pa. Mines Corp., 12 FMSHRC
940, 945 (May 1990).

If, during the
same inspection or any subsequent inspection within 90 days after issuance of
the predicate citation, the inspector finds another violation caused by
unwarrantable failure to comply with a standard, the inspector issues a
withdrawal order under section 104(d)(1). 30 U.S.C. § 814(d)(1); Wyoming
Fuel Co., 16 FMSHRC 1618, 1622 n.7 (Aug. 1994). If an inspector “finds upon
any subsequent inspection” a violation caused by unwarrantable failure, he issues
a withdrawal order for the violation under section 104(d)(2). 30 U.S.C. § 814(d)(2).
The issuance of withdrawal orders under section 104(d)(2) does not cease and an
operator remains on probation “until such time as an inspection of such mine
discloses no similar violations.” Id.; see Naaco, 9 FMSHRC at
1545.

In this case,
MSHA issued both a predicate citation and a withdrawal order to United Salt. The
issue for decision is whether the predicate citation must be reduced to writing
and handed to the mine operator prior to the issuance of the (d)(1) order, the
next step in the chain. I find that the predicate citation may be issued
verbally, and before it is reduced to writing, the next order in the chain may
be issued, also verbally.

The
uncontroverted facts relating to the issuances of these enforcement actions are
taken from the file, the citations and the documents filed by the parties. On
August 20, 2014, MSHA Inspectors Brandon Olivier and David Smith were
conducting a regular quarterly inspection of United Salt’s Hockley Mine. At
10:15 A.M., Inspector Olivier found that United Salt had failed to cover an
energized transformer in violation of 30 C.F.R. § 57.12032. He also found
that the violation was S&S and the result of United Salt’s unwarrantable
failure to comply with the standard. In the presence of Inspector Smith, Olivier
verbally notified the mine superintendent David Frost of the findings. Sec’y
Ex. C. United Salt took immediate actions to abate the violative condition, and
the citation was terminated by 11:00 A.M. The violation is described in Citation
No. 8776991. Later that same day, Inspector Smith found that United Salt had
failed to guard the motor on the drag chain to an elevator, in violation of 30
C.F.R. § 57.14107(a). He also found that the violation was S&S and the
result of United Salt’s unwarrantable failure to comply with the standard. Because
he knew of Inspector Olivier’s earlier section 104(d)(1) enforcement action,
Smith issued a verbal section 104(d)(1) withdrawal order. Sec’y Ex. F. During
the evening of August 20, 2014, Inspectors Olivier and Smith reduced their
findings to writing after leaving the mine site. Sometime between 7:00 and 8:00
A.M. the following morning, August 21, 2014, Olivier and Smith delivered written
Citation No. 8776991 and Order No. 8769489 to Frost. Sec’y Exs. C & F.3
Thus, both the citation and order were issued verbally on one day, reduced to
writing later, and handed to the mine at approximately the same time the next
morning. Respondent argues that handing the citation and order, without proving
that the citation was handed in writing first to the operator, violates the
requirements of the Act. The Secretary argues that the citation and order were
issued verbally in the correct order, and that reducing them to writing and
handing them to the mine operator at nearly the same time, does not invalidate
the requirement regarding the order in which they are issued.

In its motion,
United Salt asserts that section 104(d)(1) requires that a predicate citation
must “be issued in writing before the withdrawal order,” and that in this
instance, it is entitled to summary decision because the Secretary “has no
evidence” that the predicate section 104(d)(1) citation, No. 8776991, was
issued before the section 104(d)(1) withdrawal order, No. 8769489. Mot. at 4,

6. The company characterizes its assertion as to the “lack of evidence” regarding
   the sequence in which Citation No. 8776991 and Order No. 8769489 were issued,
   as an undisputed material fact. Mot. at 1-2. United Salt relies on deposition
   testimony taken from Inspectors Olivier and Smith. Olivier, who issued Citation
   No. 8776991, testified during his deposition that he issued the written
   citation on August 21, 2014, in the “[e]arly morning, approximately 7:30ish.” Smith,
   who issued Order No. 8769489, testified that he issued the written order also
   on August 21, 2014, “between 7:00 and 8:00 in the morning.”

In support of his
cross motion, the Secretary argues that an MSHA inspector has the discretion to
issue a section 104(d)(1) withdrawal order verbally before the predicate
citation on which the order is based is reduced to writing and given to the operator.
The Secretary maintains that the section 104(d)(1) order Inspector Smith issued
verbally on August 20, 2014, (Order No. 8769489) is therefore valid, and that as
such, the Secretary is entitled to summary decision as a matter of law.

The Commission’s
Procedural Rule 67(b) sets forth the grounds for determining whether a party is
entitled to a summary decision:

A
motion for summary decision shall be granted only if the entire record,
including the pleadings, depositions, answers to interrogatories, admissions,
and affidavits, shows:

(1)
That there is no issue as to any material fact; and

(2)
That the moving party is entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67(b). The
Commission “has long recognized that[] ‘[s]ummary decision is an extraordinary
procedure,’” and has analogized it to Rule 56 of the Federal Rules of Civil
Procedure, under which “the Supreme Court has indicated that summary judgment
is authorized only ‘upon proper showings of the lack of a genuine, triable
issue of material fact.’” Energy West Mining Co., 16 FMSHRC 1414, 1419
(July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov.
1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).

Here, I find that
the basic facts pertaining to the issuance of Citation No. 8776991 and Order
No. 8769489 are not in dispute, and thus that there is “no issue as to any material
fact,” satisfying Rule 67(b)(1). The parties both agree that the citation was
issued verbally on August 20, 2014, that the subsequent order was issued verbally
later that same day, and that both the citation and order were reduced to
writing and handed to mine management the following morning. In view of the
analysis that follows, I find that the sequence in which the written citation
and order were physically handed to the Respondent does not invalidate either
enforcement action. 

The argument of
both parties is that they are entitled to summary decision “as a matter of
law,” 29 C.F.R. § 2700.67(b)(2), based upon the statutory language at the
center of the dispute. Section 104(d)(1) states as:

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has been a
violation of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause imminent
danger, such violation is of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to
the operator under this Act. If, during the same inspection or any subsequent
inspection of such mine within 90 days after the issuance of such citation, an
authorized representative of the Secretary finds another violation of
any mandatory health or safety standard and finds such violation to be
also caused by an unwarrantable failure of such operator to so comply, he shall
forthwith issue an order requiring the operator to cause all persons in
the area affected by such violation, except those persons referred to in
subsection (c) to be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary determines that such
violation has been abated.

30 U.S.C. § 814(d)(1) (emphasis
added).

The essential
inquiry here is to determine whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. If, however, the court determines
Congress has not directly addressed the precise question at issue, the court
does not simply impose its own construction on the statute, as would be
necessary in the absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is based on a permissible
construction of the statute.”  Chevron U.S.A, Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 842-843 (emphasis added, footnotes and
citations omitted).

Here, the
“precise question at issue” is whether a written predicate section
104(d)(1) citation must precede the issuance of a section 104(d)(1) withdrawal
order. The statute requires that the inspector make “findings,” but nowhere
does it specify that these must be in writing. The closest the statute comes to
referring to a writing is the requirement that the inspector include his findings
in a citation “given” to the operator. But while this might refer to a physical
document, the statute is by no means unambiguous on the point. Indeed,
notwithstanding United Salt’s arguments to the contrary, any explicit reference
to a writing is conspicuously absent from section 104(d)(1), including any
explicit requirement to reduce a finding to writing prior to issuing a
withdrawal order. Most of the references to an inspector’s actions are to
making findings, and without any requirement that any such findings be in
writing. There is also a reference to the forthwith issuance of a withdrawal
order, which, again, does not include any requirement that the issuance be in
writing. The silence of the statute on the “precise question at issue” is obvious:
Congress simply did not address it.

I find that as to
the manner in which the Secretary exercises his discretion to issue
unwarrantable failure citations and orders, section 104(d)(1) is ambiguous to
whether and to what extent such issuances must be in writing. I find further
that the Secretary’s reading of section 104(d)(1) as allowing him to verbally issue
section 104(d)(1) withdrawal orders based on the verbal issuance of a predicate
citation is reasonable and, as such, entitled to deference.

The primary
purpose of the Mine Act is to ensure the health and safety of miners. It would defy
reason and the very purpose of the Mine Act to require MSHA to delay issuing a
withdrawal order so that a predicate citation could be committed to writing. The
purpose of a withdrawal order is to protect miners from hazards, and the
hazards that led the inspector to issue a withdrawal order should not be placed
on hold while the inspector takes the time to prepare a written predicate
citation. Though the Commission has never ruled that section 104(d)(1)
withdrawal orders may be issued based upon a verbal predicate citation,4 such an interpretation
reasonably follows from the text of the Mine Act, which requires that withdrawal
orders be issued “forthwith” and permits them to be issued “during the same
inspection” as the citation. 30 U.S.C. § 814(d)(1). Verbally issued citations
and orders are consistent with the scheme outlined in section 104(d) for
protecting miners from the repeated unwarrantable failure of an operator to comply
with mandatory standards – i.e., violations attributable to the operator’s
aggravated negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001
(Dec. 1987) (unwarrantable failure is aggravated conduct constituting more than
ordinary negligence).

United Salt
argues that its interpretation of section 104(d)(1) is compelled by the
language of the statute. But as I have already noted, the text of section
104(d)(1) does not explicitly, or even implicitly, require that MSHA serve a written
citation upon a mine operator before it issues “forthwith” a subsequent
withdrawal order. Furthermore, United Salt’s interpretation would lead to the
absurd result of exposing miners to hazards while an inspector rushes out of
the mine to his car and prepares a written citation before returning to hand it
to the mine operator and only then continue his inspection.

United Salt also
argues that the requirement set forth in section 104(a) of the Mine Act that
“[e]ach citation shall be in writing,” 30 U.S.C. § 814(a), “unambiguously
indicates that there can be no such thing as an oral citation.” United Salt
Resp. at 1. I find no such clarity in the statutory language, and do not
discern any prohibition against MSHA acting in the first instance through
verbal directives so long as such actions are reduced to writing as soon as is
practicable. In this regard, the Commission has recognized that the purpose of
the requirements of section 104(a) is to “allow [] the operator to discern what
conditions require abatement, and to adequately prepare for a hearing on the
matter.” Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 379 (Mar. 1993). In
this instance, it appears that the verbal issuance of Citation No. 8776991 and
its subsequent written transmission to United Salt both put the company on
notice of the conditions it needed to abate (the cited condition was terminated
before the written citation was given to United Salt) and allowed it to prepare
for a hearing. Furthermore, MSHA mine inspectors must act to protect miners
from harm, and often must act quickly and without the impediment of reducing
their findings to writing before ordering a mine operator to correct a
hazard. If the discretion of inspectors to take such immediate action was
constrained as United Salt argues, the Mine Act would be eviscerated.5

Even if I
determined that the Secretary was not entitled to summary decision, I could not
grant United Salt’s motion. United Salt’s argument depends on finding that the
written Citation No. 8776991 was given to the operator before it received the
written Order No. 8769489. But United Salt relies on indefinite deposition
testimony as proof of this fact; it is by no means an undisputed material fact
as to which both parties can agree. It is clear, after examining the deposition
testimony upon which United Salt relies, that it is not certain exactly when
either the written citation or written order was given to United Salt on August
21, 2014. What is clear from the deposition testimony is that these two pieces
of paper were issued to the Respondent very close to – if not exactly – at the
same time. Even if the sequence in which written section 104(d)(1)
citations and orders are given to a mine operator is relevant to the validity
of such paper, that sequence is obviously unsettled and would be in need of
further factual development, rendering summary decision inappropriate.

Moreover, even
if, as a matter of law, the issuance of a written predicate citation must
precede the issuance of a subsequent section 104(d)(1) order for that order to
stand, I note that it is within my power to modify either the predicate
citation or the subsequent order to satisfy a “sequence rule” of the sort
United Salt argues for. See Lodestar Energy, Inc., 25 FMSHRC 343, 345-46
(July 2003). Section 105(d) of the Mine Act states that “the Commission shall
afford an opportunity for a hearing . . . and thereafter shall issue
an order, based on findings of fact, affirming, modifying, or vacating the
Secretary’s citation, order, or proposed penalty, or directing other
appropriate relief.” 30 U.S.C. § 815(d). The Commission has explained that
this provision “permits a judge to modify a citation or order so long as the
essential allegations necessary to sustain the modified enforcement action are
contained in the original citation or order.” Mechanicsville Concrete, Inc.,
18 FMSHRC 877, 880 (June 1996). Under Mechanicsville, I do not have the
authority to “add new findings to create a 104(d)(1) citation.” Id. But
I do have the authority to modify withdrawal Order No. 8769489 here to a
predicate citation, and modify predicate Citation No. 8776991 to a withdrawal
order, that is if the circumstances surrounding the issuance of these two
enforcement actions so warrants, either on my own motion or if moved to do so
by the Secretary. I note particularly that withdrawal Order No. 8769489 meets
all the prerequisites for a predicate citation: findings by the inspector that
the violation was S&S and caused by an unwarrantable failure to comply with
the cited standard. See Lodestar, 25 FMSHRC at 345.

Having considered
all of the documents, briefs, and exhibits, I find that the Secretary is
entitled to summary decision as a matter of law, and that section 104(d)(1)
Order No. 8769489 was validly issued based upon the verbal issuance of
predicate section 104(d)(1) Citation No. 8776991. I do not reach the merits of
the citation and order and therefore leave that matter for hearing and grant a
partial decision in favor of the Secretary. Accordingly, the Motion for Partial
Summary Decision of United Salt Corporation is DENIED, and the Motion
for Partial Summary Decision of the Secretary of Labor is GRANTED.

/s/ Margaret A. Miller

Margaret
A. Miller

Administrative
Law Judge

Distribution:

Jennifer J. Johnson, U.S.
Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite 501,
Dallas, TX 75202

James M. Morlath, U.S.
Department of Labor Office of the Solicitor 201 12th Street South, Suite 500
Arlington, VA 22202

Arthur G. Sapper, and Andrew
Genz, McDermott Will & Emery LLP, 500 North Capitol Street, N.W.,
Washington, DC 20001-1531

1 The unwarrantable failure terminology is taken from
section 104(d)(1) of the Act, which establishes more severe sanctions for any
violation that is caused by “an unwarrantable failure of [an] operator to
comply with . . . mandatory health or safety standards.” 30 U.S.C.
§ 814(d)(1).

2 The S&S terminology is taken from section
104(d)(1) of the Act, 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.” 30 U.S.C. § 814(d)(1).

2

4 In roughly analogous circumstances, in the face of
hazardous conditions, the Commission recently affirmed as a matter of course a
verbal order that was only subsequently given in writing to the mine operator. See
Mill Branch Coal Corp., 37 FMSHRC ___, slip op. at 4 (July 23, 2015)
(affirming verbally issued section 107(a) imminent danger order).

5 I reject out of hand United Salt’s novel assertion
that section 104(d)(1) must be strictly construed under the rule of lenity
because “a section 104(d)(1) withdrawal order is punitive.” United Salt Resp.
at 2. Withdrawal orders are not issued to punish mine operators. They are
issued to protect miners from potential harm. As to the penalty petition that
is before me in this proceeding, the legislative history of the Mine Act sets
forth the purpose of the Act’s civil penalty provision, section 110(I), 30
U.S.C. § 820(I), as follows: “[T]he purpose of a civil penalty is to induce
those officials responsible for the operation of a mine to comply with the Act
and its standards.” S. Rep. No. 95-181, at 40-41 (1977). The legislative
history of section 110(I) makes clear that civil penalties are remedial in
nature, not punitive, and are assessed to induce effective and meaningful
compliance with safety and health standards.