Southwestern Portland Cement Company v. Secretary of Labor (MSHA) (ALJ decision, November 25, 1985)

Plain-English summary

Southwestern Portland Cement Company asked for summary judgment on three MSHA actions at its Odessa Cement Plant: one citation and two withdrawal orders issued under section 104(d)(1) of the Mine Act. Judge John J. Morris found that the alleged conduct was no longer occurring when MSHA investigated and that the inspectors had not directly detected it during an inspection. He therefore changed all three actions to allegations under section 104(a), removing the section 104(d)(1) designation. He denied full summary judgment because factual disputes remained about whether the underlying safety violations had occurred. Those issues were left for a hearing.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.15-6, 56.9-40, and 56.14-27.
• Outcome: One citation and two withdrawal orders modified from section 104(d)(1) to section 104(a); merits left pending.
• Key point: The judge held that the inspectors' after-the-fact investigation could not support the section 104(d)(1) designation, though the underlying allegations could still be tried.

Full text (FMSHRC public release)

CCASE:
S.WESTERN PORTLAND CEMENT v. SOL (MSHA) DDATE: 19851125 TTEXT:
~2283
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SOUTHWESTERN PORTLAND CEMENT
CONTEST PROCEEDINGS
COMPANY,
CONTESTANT
Docket No. CENT 85-71-RM
GARY PRITCHETT,
Citation No. 2235007; 1/10/85
UNION REPRESENTATIVE
and
Docket No. CENT 85-81-RM
PETE BARRERAZ,
Order No. 2238401; 4/10/85
UNION REPRESENTATIVE
v. Docket No. CENT 85-82-RM
Order No. 2238402; 4/10/85
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Odessa Cement Plant
ADMINISTRATION (MSHA),
RESPONDENT

ORDER

Southwestern Portland Cement Company (SPCC) has moved for a summary decision herein. The Secretary of Labor opposes the motion. Briefs have been filed by SPCC and the Secretary in support of their positions.

The facts are these:

CENT 85-71-RM

1. In this case Citation No. 2235007 was issued under Section 104(d)(1) of the Act. The citation in its format indicates that it was issued on January 10, 1985. The body of the citation itself recites that it was issued on March 21, 1985.

2. The citation alleges that three miners were exposed to an undetermined amount of heat and gas while working in the SPCC multiclone. It is further alleged that SPCC's actions constituted an unwarrantable failure to comply with 30 C.F.R. 56.15-6.

3. Subsequently, on May 1, 1985, the citation was modified by formally changing the issuance date from January 10, 1985 to March 21, 1985. It was further stated in the amendment that "the violation was believed to have occurred on January 10, 1985." (FOOTNOTE.1) ~2284
4. Between March 21 (the date Citation 2235007 was issued) and May 1 (the date the citation was modified) two contested withdrawal orders were issued. These contests are now docketed as CENT 85-81-RM and CENT 85-82-RM.

CENT 85-81-RM

5. In this case SPCC contests MSHA's order number 2238401 issued under Section 104(d)(1) of the Act.

The foregoing order alleges SPCC violated 30 C.F.R.
56.9-40. The order was issued April 10, 1985 after an MSHA inspector had completed an investigation.

The order claims that SPCC's operation of its #183 forklift constituted an unwarrantable failure by SPCC to comply with the regulation.

CENT 85-82-RM

6. In this case SPCC contests MSHA's order 2238402 issued under Section 104(d)(1) of the Act.

The foregoing order alleges SPCC violated 30 C.F.R.
56.14-27. The order was issued on April 10, 1985 after an MSHA inspector had completed an investigation.

The order claims that SPCC's operation of its #183 forklift (on an occasion other than as alleged in Citation 2238401) constituted an unwarrantable failure by SPCC to comply with the cited regulation.

Discussion

SPCC contends that under Section 104(d) of the Act any violations, in order to be cited and made the subject of citations and withdrawal orders, must be in existence at the time of an inspection in order to subject a mine operator to liability for violations under the Act. SPCC also contends that Section 104(d) differs from Section 104(a) and other provisions of the Act since Section 104(d) introduces a time factor into the enforcement action.

The Secretary counters claiming that Section 103(g)(1) plainly provides a right to obtain an immediate inspection after notice of an allegedly violative condition is received by the Secretary.

The judge for the purpose of this order has reviewed the citation and withdrawal orders as well as the affidavits on file. These indicate that the violative condition were not actually perceived, observed or otherwise directly detected by the MSHA inspectors. Further, such violative conditions did not exist at ~2285 the time the inspectors visited the worksite. This analysis rests on the fact that MSHA conducted an after the fact investigation before issuing the citation and orders. Specifically, Citation 2235007 was issued due to events that allegedly occurred on January 10, 1985. MSHA investigated these events when it received a written employee complaint on February 7, 1985. The two withdrawal orders were issued as the result of an after the fact MSHA investigation on April 3, 1985.

An overview of the Act is necessary to resolve the issues in the case.

Section 103(a) of the Act provides: "Authorized representatives of the Secretary . . . shall make frequent inspections and investigations in . . . mines each year for the purpose of . . . (4) determining whether there is compliance with the mandatory health or safety standards . . ." Section 103(b) of the Act, speaking only of an "investigation," provides: "For the purpose of making any investigation of any accident or other occurrence relating to health or safety in a . . . mine, the Secretary may, after notice, hold public hearings,. . . .

The contrast between the foregoing sections indicates that Congress saw an investigation as something different from an inspection.

Of considerable significance, the most used enforcement tool, Section 104(a), mentions both inspections and investigations. It provides that "if, upon inspection or investigation, the Secretary . . . believes that an operator of a . . . mine . . . has violated this Act, or any . . . standard, . . . he shall, with reasonable promptness, issue a citation to the operator. . . . The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act."

Section 104(d)(1), in contrast to Section 104(a), relates only to "inspections," providing that "if, upon any inspection of a . . . 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 can significantly and substantially contribute to the cause and effect of a . . . hazard, and if he finds such violation to be caused by an unwarrantable failure . . . he shall include such findings in any citation given to the operator under this Act."

The second sentence of Section 104(d)(1) provides for the withdrawal order in the enforcement chain or scheme contemplated by Congress in this so-called "unwarrantable failure" formula.
~2286
Significantly, it provides that "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 . . . and finds such violation to be also caused by an unwarrantable failure . . ., he shall forthwith issue an order requiring the operator to cause all persons . . . to be withdrawn from . . . such area. . . ."

If the position of the Secretary in this case were adopted, that is, if withdrawal orders could be issued on the basis of an investigation of past occurrences, the effect would be to increase the 90-day period provided for in the second section of Section 104(d)(1) by the amount of time which passed between the occurrence of the violative condition described in the order and the issuance of the order.

Section 104(d)(2) of the Act permits the issuance of a withdrawal order by the Secretary if his authorized representative "finds upon any subsequent inspection" the existence of violations similar to those that resulted in the issuance of the Section 104(d)(1) order.

Summing up, it is clear that nowhere in Section 104(d) is the issuance of any enforcement documentation sanctioned on the basis of an investigation. Although Congress did not define the terms "inspection" or "investigation" specifically in the Act, there is no question but that Congress in using those terms in specific ways in prior sections of the Act, and by not using the term "investigation" in Section 104(d)(1) and (2) indicates the Congress did so with some premeditation.

Further, an example of the fact that Congress intended the words to have different meanings is provided by Section 107(b)(1)

• (2) of the Act where Congress lays out an enforcement sequence
  whereby, based upon findings made during an "inspection,' further "investigation' may be made."

  Finally, Section 107(a) of the Act permits the Secretary's
  representative to issue a withdrawal order where imminent danger is found to exist either upon an inspection or investigation.

  A review of the various portions of the Act, commencing at
  the point where the subject words are first used on through to the end of such use, indicates that the terms were used with care and judiciously and with an understanding of the general connotations contained in their definitions.(FOOTNOTE.2)
  ~2287
  Commission Judge Richard C. Steffey thoroughly considered the
  legislative history of the Act concerning these issues in Westmoreland Coal Company, WEVA 82-340-R, May 4, 1983. His views, slightly recast by the writer, are quoted at length herein because his order (on a motion for a summary decision) is otherwise unreported. He stated:

   WCC correctly argues that an order issued under Section
   104(d) should be based on an inspection as opposed to
   an investigation. As herein before indicated, the
   Secretary argues that Congress has not defined either
   term to indicate that Congress recognizes that there is
   a difference between an "inspection' as opposed to an
   "investigation.' If one wants to examine the
   legislative history which preceded the enactment of
   unwarrantable-failure provisions of the 1977 Act, one
   must examine the legislative history which preceded the
   enactment of Section 104(c) of the 1969 Act.
  
   The history of the 1969 Act shows that there was a
   difference in the language of the unwarrantable-failure
   provisions of S.2917 as opposed to H.R.13950. S.2917,
   when reported in the Senate, contained an
   unwarrantable-failure provision; section 302(c) which
   read almost word for word as does the present Section
   104(d), H.R.13950 contained an unwarrantable-failure.
   Section 104(c), which provided that if an
   unwarrantable-failure notice of violation had been
   issued under Section 104(c)(1), a reinspection of the
   mine should be made within 90 days to determine whether
   another unwarrantable failure violation existed.
  
   Conference Report No. 91-761. 91st Congress, 1st
   Session, stated with respect to the definition in
   section 3(1) of H.R.13950 (page 63):
  
   The definition of "inspection' as contained in the
   House amendment is no longer necessary, since the
   conference agreement adopts the language of the Senate
   bill in section 104(c) of the Act which provides for
   findings of an unwarrantable failure at any time during
   the same inspection or during any subsequent inspection
   without regard to when particular inspection begins or
   ends.
  
   Section 104(c)(1) of H.R.13950 provided for the
   findings of unwarrantable failure to be made in a
   notice of violation which would be issued under section
   104(b). Section 104(c)(1)'s requirement of a
   reinspection within 90 days to determine if an
   unwarrantable failure violation still existed explained
   that the reinspection required within 90 days by
   section 104(c)(1) was in ad
  

  ~2288
  dition to the special inspection required under section
  104(b) had to determine whether a violation cited under
  section 104(b) had been abated. Section 104(c)(1), as
  finally enacted, eliminated the confusion about intermixing
  reinspections with special inspections by simply providing
  that an unwarrantable failure order would be issued under
  section 104(c)(1) any time that an inspector, during a
  subsequent inspection, found another unwarrantable failure
  violation (Conference Report 91-761, pp. 67-68).

  The legislative history discussed above shows that
  Congress thought of an inspection as being the period
  of time an inspector would spend to inspect a mine on a
  single day because the inspection was to begin when the
  inspector entered the mine and end when he left. It
  would be contrary to common sense to argue that the
  inspector might take a large supply of food with him so
  as to spend more than a single day in a coal mine at
  one time. On the other hand, Congress is very
  experienced in making investigations to determine
  whether certain types of legislation should be enacted.
  Congress is well aware that an investigation, as
  opposed to an inspection, is likely to take weeks or
  months to complete. Therefore, I cannot accept the
  Secretary's argument that Congress did not intend to
  distinguish between an "inspection" and an
  "investigation" when it used those two terms in section
  104(a) and section 107(a) of the 1977 Act.
  
  It should be noted, for example, that the counterpart
  of section 104(a) in the 1977 Act, was section 104(b)
  in the 1969 Act. Section 104(b) in the 1969 Act
  provided for notices of violation to be issued "upon
  any inspection,' but section 104(a) in the 1977 Act
  provides for citations to be issued "upon inspection or
  investigation.' Likewise, the counterpart of
  imminent-danger section 107(a) in the 1977 Act was
  section 104(a) in the 1969 Act. In the 1969 Act an
  imminent-danger order was to be written "upon any
  inspection,' but when Congress placed the
  imminent-danger provision of the 1977 Act in section
  107(a), it provided for imminent-danger orders to be
  issued "upon any inspection or investigation.' On the
  other hand, when the unwarrantable-failure provision of
  section 104(c) of the 1969 Act was placed in the 1977
  Act as section 104(d), Congress did not change the
  requirement that unwarrantable-failure orders were to
  be issued "upon any inspection.'
  
  The legislative history explains why Congress changed
  section 104(a) in the 1977 Act to allow a citation to
  be issued "upon inspection or investigation.'
  Conference Report No. 95-461, 95th Congress, 1st
  Session, 47-48, states that the Senate bill permitted a
  citation or order to be issued based upon the
  inspector's belief that a violation had occurred,
  

  whereas the House amendment required that the notice or order be based on the in
  ~2289
  spector's finding that there was a violation. Additionally,
  as both the Secretary and WCC have noted, Senate Report No.
  95-181, 95th Congress, 1st Session, 39, explains that an
  inspector may issue a citation when he believes a violation
  has occurred and the report states that there may be times
  when a citation will be delayed because of the complexity of
  issues raised by the violations, because of a protracted
  accident investigation or for other legitimate reasons. For
  this reason, section 104(a) provides that the issuance of a
  citation with reasonable promptness is not a jurisdictional
  prerequisite to any enforcement action.

  The legislative history and the plain language of
  section 107(a) in the 1977 Act explain why that section
  was changed so as to insert the provision that an
  imminent danger order could be issued upon an
  "investigation' as well as upon an "inspection.'
  Section 107(a) states, in part, that the issuance of an
  order under this subsection shall not preclude the
  issuance of a citation under section 104 or the
  proposing of a penalty under section 110. Both Senate
  Report No. 95-181, 37, and Conference Report No.
  95-461, 55, refer to the preceding quoted sentence to
  show that a citation of a violation may be issued as
  part of an imminent-danger order. Since section 104(a)
  had been modified to provide for a citation to be
  issued upon an inspector's "belief' that a violation
  had occurred, it was necessary to modify section 107(a)
  to provide that an imminent-danger order could be
  issued upon an inspection or an investigation so as to
  make the issuance of a citation as part of an
  imminent-danger order conform with the inspector's
  authority to issue such citations under section 104(a).
  
  Despite the language changes between the 1969 and 1977
  Acts with respect to the issuance of citations and
  imminent-danger orders, Congress did not change a
  single word when it transferred the unwarrantable
  failure provisions of section 104(c) of the 1969 Act to
  the 1977 Act as Section 104(d). Conference Report No.
  95-461, 48, specifically states "the conference
  substitute conforms to the House amendment, thus
  retaining the identical language of existing law.'
  
  My review of the legislative history convinces me that
  Congress did not intend for the unwarrantable failure
  provisions of section 104(d) to be based upon lengthy
  investigations. Congress did not provide that an
  inspector may issue an unwarrantable failure citation
  or order upon a "belief' that a violation occurred.
  Without exception, every provision of section 104(d)
  specifically requires that findings be made by the
  inspector to
  

  ~2290
  support the issuance of the first citation and all
  subsequent orders. The inspector must first, "upon
  any inspection' find that a violation has occurred.
  Then he must find that the violation could significantly
  and substantially contribute to the cause and effect of a
  coal or other mine safety or health hazard. He must
  then find that such violation is caused by an unwarrantable
  failure of such operator to comply with such mandatory
  health or safety standard. He thereafter must place those
  findings in the citation to be given to the operator. If
  during that same inspection any subsequent inspection, he
  finds another violation of any mandatory health or safety
  standard and finds such violation to be caused by an
  unwarrantable failure of such to so comply, he shall forthwith
  issue an order requiring the operator to cause all persons in
  the area affected by such violation to be withdrawn and be
  prohibited from entering such area until the inspector
  determines that such violation has been abated.

   After a withdrawal order has been issued under
   subsection 104(d)(1), a further withdrawal order is
   required to be issued promptly under subsection
   104(d)(2) if an inspector finds upon any subsequent
   inspection that an additional unwarrantable-failure
   violation exists until such time as an inspection of
   such mine which discloses no unwarrantable-failure
   violations, the operator is liberated from the
   unwarrantable-failure chain. Conference Report No.
   95-181, 34, states that "both Sections 104(d)(1) and
   104(e) require an inspection of the mine in its
   entirety in order to break the sequence of the issuance
   of orders. (Emphasis added.)
  

  I agree with Judge Steffey and I conclude that the Act does
  not permit a section 104(d) order to be based on an investigation. But rather the order must be based on and it must have been a product of an inspection of the site. Section 104(d) provides that an order may be issued only if, upon an inspection of the mine, the Secretary finds a violation of a safety or health standard. Where an inspector does not inspect the site but only learns of the alleged violation from the statements of miners a section 104(d) order may not be issued.

  As previously noted, when it intended to permit MSHA
  enforcement actions to proceed on the basis of an inspection or an investigation, Congress so provided. The section 104(d) requirement of an inspection cannot be dismissed as mere semantic inadvertence on the part of Congress.

  Section 104(d) sets forth the sanctions that may be imposed
  against an operator under the specific conditions discussed in that section. If follows that the inspector authorized on a miner's complaint by section 103(g)(1) cannot reduce the safeguards Congress intended to provide in section 104(d). The Secretary's reliance on section 103(g)(1) is, accordingly, rejected.
  ~2291
  As previously noted the citation and orders in contest here all
  indicate on their face that they were issued as a result of MSHA investigations.

  Accordingly, I find that Citation 2235007 and Withdrawal
  Orders 2238401 and 2238404 were improvidently issued pursuant to section 104(d) of the Act.

  However, such a conclusion does not mandate that the
  citation and orders in contest here should be vacated. The Commission has thoroughly explored the procedural propriety of a judge modifying an invalid 104(d) order. Consolidation Coal Company, 4 FMSHRC 1791 (1982); United States Steel Corporation, 6 FMSHRC 1908 (1984). The rationale as expressed in Consolidation Coal Company follows:

   We first consider the question of modification from a
   general perspective. Sections 104(h) and 105(d) of the
   Mine Act expressly authorize the Commission to "modify"
   any "orders" issued under section 104. This power is
   conferred in broad terms and we conclude that it
   extends, under appropriate circumstances, to
   modification of 104(d)(1) withdrawal orders to
   104(d)(1) citations. In this case, and in future ones
   raising similar issues, we will define such
   "appropriate circumstances." Where, as here, the
   withdrawal order issued by the Secretary contains the
   special findings set forth in section 104(d)(1), but a
   valid underlying 104(d)(1) citation is found not to
   exist, an absolute vacation of the order, as urged by
   the operator, would allow the kind of serious violation
   encompassed by section 104(d) to fall outside of the
   statutory sanction expressly designed for it--the 104(d)
   sequence of citations and orders. The result would be
   that an operator who would otherwise be placed in the
   104(d) chain would escape because of the sequencing of
   citations and orders. Such a result would frustrate
   section 104(d)'s graduated scheme of sanctions for more
   serious violations.
  

Consolidation Coal Company, specifically addresses the issue of whether 104(d) orders survive as alleged 104(a) violations. On this point the Commission stated 4 FMSHRC at 1794 (Footnote 9):

Modification under such circumstances is also consistent with our settled precedent. We held in Island Creek Coal Co., 2 FMSHRC 279, 280 (February 1980), that allegations of a violation survived the Secretary's vacation of the 104(d)(1) withdrawal order in which they were contained and, if proven at a subsequent hearing, would have required assessment of a penalty. We reached a similar result in a companion case in which we held that allegations of violation also survived Secretarial
~2292 vacation of an invalid 107(a) order (imminent danger).
Van Mulvehill Coal Co., Inc., 2 FMSHRC 283, 284 (February 1980). In both cases, we thus contemplated future trial of the allegations as possible 104(a) violations. (Neither of the vacated withdrawal orders had contained significant and substantial findings.) If less serious allegations of 104(a) violations survive, then, a fortiori, the more serious allegations in the present type of case should survive as potential 104(d)(1) violations.
In short, the purport of our decisions is that such allegations survive, and modification is merely the appropriate means of assuring that they do.

For the foregoing reasons I conclude that SPCC's motion should only be granted in part. A total summary decision is denied because the pleadings herein indicate that a factual dispute remains as to the validity of the modified citation and orders. If, after a hearing, the evidence fails to show that the violations occurred then the citations will be vacated.

In summary, I conclude that the 104(d) citation and two 104(d) withdrawals orders are invalid because the alleged violative condition was not in existence during the period of the inspection. Further, the violations were not actually perceived, observed or otherwise directly detected by a duly authorized representative of the Secretary. I further conclude that Commission precedent requires that the 104(d) allegations should be modified to allegations of violations under Section 104(a) of the Act.

Accordingly, pursuant to Section 105(d) of the Act, I enter the following:

ORDER

1. Citation No. 2235007 alleging a violation of 30 C.F.R.
56.15-6, docketed as case No. CENT 85-71-RM and issued under section 104(d)(1) of the Act is modified to reflect its issuance under section 104(a) of the Act.

2. Withdrawal Order 2238401 alleging a violation of 30 C.F.R. 56.9-40, docketed as case No. CENT 85-81-RM and issued under section 104(d)(1) of the Act is modified to reflect its issuance under section 104(a) of the Act.

3. Withdrawal Order 2238402 alleging a violation of 30 C.F.R. 56.14-27, docketed as case No. CENT 85-82-RM, and issued under section 104(d)(1) of the Act is modified to reflect its issuance under section 104(a) of the Act.

4. All proposed findings of fact and conclusions of law not expressly incorporated in this order are rejected.

John J. Morris
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE:-

~Footnote_one

1 The facts in this paragraph only appear in CENT 85-119-M, a penalty case pending before this judge for the alleged violation of Citation 2235007.

~Footnote_two

2 Webster's New Collegiate Dictionary, 1979 at 593 and 603 indicates that the primary definition of "inspect" is "to view closely in critical appraisal: look over." On the other hand, the primary definition of "investigate" is "to observe or study by close examination and systematic inquiry."