Secretary of Labor v. Green River Coal Company, Inc.

Plain-English summary

Green River Coal Company received a citation after a roof fall left slippery rock blocking part of a conveyor-belt travelway at its No. 9 Mine. The Secretary argued that a safeguard requiring a 24-inch travelway covered any physical obstruction, but the administrative law judge found that the safeguard addressed clearance lost because roof supports had been installed too close to the belt. The Commission affirmed the citation's vacation, holding that the safeguard had to be read narrowly and did not give fair notice that roof-fall debris was prohibited. The Commission explained that the same narrow construction applies even when a safeguard is based on a published criterion.

Decision snapshot

• Governing authority: 30 C.F.R. § 75.1403-5(g); 30 C.F.R. § 75.1403-1(b)
• Outcome: The citation was vacated and the Commission affirmed.
• Key point: A safeguard must identify the hazard and required corrective conduct with enough specificity to provide fair notice; a published criterion does not turn it into a nationwide standard.

Full text (FMSHRC public release)

CCASE:
MSHA V. GREEN RIVER COAL
DDATE:
19920101
TTEXT:
January 10, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. KENT 88-152

GREEN RIVER COAL COMPANY, INC.

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
The issue in this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine
Act"), is whether Green River Coal Company, Inc. ("Green River") failed to
comply with a notice to provide safeguard issued pursuant to 30 C.F.R.
§ 75.1430 and based upon the criterion set forth in 30 C.F.R.§ 75.1403-
5(g).(Footnote 1) The Secretary alleges that conditions found by her
inspector

1 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 30 U.S.C. §
874(b), and states:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary [of
Labor], to minimize hazards with respect to
transportation of men and materials shall be
provided.
The procedures by which an authorized representative of the Secretary
may issue a citation pursuant to section 75.1403 are described in 30 C.F.R.
§ 75.1403-1(b)
The authorized representative of the Secretary
shall in writing advise the operator of a specific
safeguard which is required pursuant to § 75.1403
and shall fix a time in which the operator shall
provide and thereafter maintain such safeguard. If
the safeguard is not provided within the time fixed
and if it is not maintained thereafter, a notice
shall be issued to the operator pursuant to section
104 of the Act.
30 C.F.R. § 75.1403-2 through 75.1403-11 set forth specific criteria by

subsequent to the issuance of a safeguard notice and described in a citation
alleging a violation of section 75.1403-5(g) were prohibited by the
safeguard notice. Commission Administrative Law Judge George A. Koutras
found that the conditions for which the citation was issued were not
encompassed by the safeguard notice, and he vacated the citation. 11 FMSHRC
685 (April 1989)(ALJ). For the reasons set forth below, we affirm.
On January 21, 1987, Jerrold Pyles, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), issued a notice to
provide safeguard to Green River Coal Company, Inc. ("Green River") at Green
River's No. 9 Mine, an underground coal mine located near Madisonville,
Kentucky. The notice states:
A clear travelway at least 24" wide was not provided
on both sides of the "7B" belt between xcuts No's 88
& 89. There was less than 24" on one side of belt
between roof support (timbers) and rib nor between
belt and roof support. This is a notice to provide
safeguard.
Exh. P-9. In order to remedy the condition, Green River created a clear 24-
inch travelway between the roof support timbers and the rib by shearing off
part of the rib with a pick and an electric jack hammer.
On March 21, 1988, Inspector Pyles, accompanied by the safety manager
for Green River, Grover Fischbeck, conducted an inspection of the mine,
during which they observed that damage from a roof fall existed in the area
of the 5-D belt, cross-cut number 6. The area had been partially cleaned
by removing fallen rock from the conveyor belt. However, some fallen rock
remained, approximately 2 feet in height and extending for a length of 10 to
12 feet on either side of the conveyor belt. The rock was slippery in
places as a result of water leaking from the roof.
Pyles testified that to conduct a thorough inspection of the 5-D
conveyor belt, a belt examiner would have to walk on the slippery rock,
which would expose the examiner to hazards associated with falling.
Fischbeck confirmed that Pyles issued the citation because of the
obstructions in the travelway caused by the fallen rock, which would prevent
the belt examiner from walking along the entire length of the belt.

which authorized representatives are guided in requiring safeguards.
Section 75.1403-5 is entitled "Criteria -- Belt Conveyors" and section
75.1403-5(g) states:
A clear travelway at least 24 inches wide should be
provided on both sides of all belt conveyors
installed after March 30, 1970. Where roof supports
are installed within 24 inches of a belt conveyor, a
clear travelway at least 24 inches wide should be
provided on the side of such support farthest from
the conveyor.

Pyles issued a citation alleging a violation of section 75.1403-5(g)
based upon the safeguard notice he had issued on January 21, 1987. The
citation states:
A clear travelway of at least 24 inches was not
provided on the 5 D belt xcut No. 6, in that rock
had fallen down against belt, due to a roof fall,
and had the travelway partially blocked to where a
man or person would have to walked [sic] over the
top of it. Area was wet and slippery on top of the
gray shale....
Exh. P-8. The Secretary proposed a civil penalty of $800 for the violation,
which Green River contested.
Following an evidentiary hearing, the judge vacated the citation.
Citing the Commission's decision in Southern Ohio Coal Co., 7 FMSHRC 509
(April 1985)("SOCCO I") and the decision of Commission Administrative Law
Judge John A. Carlson in Mid-Continent Resources, Inc., 7 FMSHRC 1457
(September 1985)(ALJ), he concluded that the safeguard notice issued by
Pyles on January 21, 1987, did not encompass the cited conditions. 11
FMSHRC at 702-03.(Footnote 2) The judge agreed with Judge Carlson's
reasoning in Mid-Continent and compared the conditions leading to the
issuance of the citation with those leading to the issuance of the safeguard
notice. He found that the conditions giving rise to the safeguard, which
had come about as a result of installing roof support timbers too close to a
conveyor belt and which required that the rib be sheared to provide the
necessary

2 In SOCCO I, a case involving an alleged violation of a notice to provide
safeguard, the Commission held that, in determining whether an operator has
violated a safeguard notice, the notice must be strictly construed and must
give the operator clear notice of the hazard and of the conduct required to
remain in compliance. 7 FMSHRC at 5l2.
In Mid-Continent, an inspector issued a safeguard notice pursuant to
section 75.1403-5(g) because coal sloughage obstructed part of a 24-inch
travelway along a conveyor belt. Subsequently, the inspector found another
travelway obstructed by coal sloughage, a shallow trench, and roof support
timbers. Judge Carlson found that the citation was valid with respect to
the coal sloughage, but invalid with respect to the trench and timbers. He
held that specification of coal sloughage in the safeguard notice "was broad
enough to embrace the casual presence or accumulation of coal or similar
solid objects in the travelway." 7 FMSHRC at 1461. He further held,
however, that the safeguard notice was not broad enough to include the
dissimilar obstructions of the trench, which differed in nature from the
sloughage, or the standing roof support timbers, which were installed as
part of the roof control system and which required abatement action far

different from the removal of coal sloughage. The judge therefore concluded
that the trench and the roof support timbers "differed enough from the class
of objects akin to coal sloughage to remain outside the reasonable scope of
[the] ... notice of safeguard." 7 FMSHRC at 1462.

clearance, were different from the rock fall condition on which Pyles based
the citation.
On review, the Secretary contends that the judge misapplied the
Commission's holding in SOCCO I. She argues that the citation must be
upheld if both the safeguard notice and the citation cover physical
obstructions to a 24-inch travelway. The Secretary refers to the
Commission's statement in SOCCO I, where the safeguard notice had been
issued to address an obstruction caused by cement blocks and rocks, that
further instances of physical obstructions, whether rocks, cement blocks,
construction materials, mine equipment, or debris, would fall within the
scope of the safeguard. 7 FMSHRC at 513. She argues that, because the
safeguard notice and citation in this case cover "physical obstructions,"
roof support timbers and fallen rock, the citation was validly issued and
should have been upheld, and a civil penalty assessed against Green River.
We disagree. In SOCCO I, the Commission explained that strict
construction of safeguards is premised upon the unique process by which
safeguards are issued. Inspectors are authorized by section 75.1403 to
write what are, in effect, mandatory safety standards on a mine-by-mine
basis in order to reduce hazards posed by the transportation of men and
materials in a particular mine. If the operator fails to comply with a
safeguard as issued, he is susceptible to the issuance of a citation and the
subsequent assessment of a civil penalty. 30 C.F.R. § 75.1403-1(b).
The Commission concluded that the special nature of the safeguard
provision, that is, its unusually broad grant of regulatory authority,
requires a rule of interpretation more restrained than that accorded
standards promulgated for nationwide application to all mines. The
Commission held that "a safeguard notice must identify with specificity the
nature of the hazard at which it is directed and the conduct required of the
operator to remedy such hazard." SOCCO I, 7 FMSHRC at 512. The Commission
further stated that its approach toward interpretation of the safeguard
provisions "strikes an appropriate balance between the Secretary's authority
to require ... safeguards and the operator's right to notice of the conduct
required of him" and that "the safety of miners is best advanced by an
interpretative approach that ensures that the hazard of concern to the
inspector is fully understood by the operator, thereby enabling the operator
to secure prompt and complete abatement." Id.
In SOCCO I, the safeguard notice was issued because fallen rock and
cement blocks obstructed the travelway, and the citation that alleged a
violation of the safeguard was issued because an accumulation of water,
which presented a slipping and stumbling hazard, was present in the

travelway. The Commission found that the accumulation of water was neither
specifically identified in the safeguard notice nor contemplated by the
inspector when he issued the safeguard notice. SOCCO I, 7 FMSHRC at 513.
In concluding that the conditions for which the citation was issued did not
violate the notice to provide safeguard, the Commission considered the
physical characteristics of the impediments to travel, as well as factors
such as the type of hazards posed by the conditions, the manner by which the
conditions were created, and the manner in which the conditions could be

remedied. Id.(Footnote 3)
Following the analytical guidelines adopted by the Commission in
SOCCO I, Judge Koutras correctly concluded that the safeguard notice in this
case did not cover the cited obstruction. In so doing, the judge properly
rejected the inspector's opinion that, regardless of the conditions that
caused a belt travelway to be restricted, a violation of the safeguard
occurred whenever a clear travelway of at least 24 inches was not provided
in accordance with the safeguard notice. 11 FMSHRC at 700-03. The judge
focused upon the characteristics of the obstacles causing the obstruction,
the type of hazard posed by the obstacles, the manner in which the obstacles
were created, and the manner in which the resulting conditions could be
remedied. The judge found that, while no evidence was presented with
respect to the hazards associated with a travelway restricted by the
installation of roof support timbers close to a conveyor belt, the evidence,
nonetheless, established a slipping and falling hazard with respect to the
fallen rock. 11 FMSHRC at 702. The judge noted that the obstructions
described in the safeguard notice and citation arose in dissimilar manners.
The safeguard specifically addressed a lack of clearance caused by the
installation of roof timbers too close to a conveyor belt, while the cited
obstruction was caused by rock that had fallen against the belt. 11 FMSHRC
at 702-03. The judge also noted that the safeguard obstruction was abated
in a manner requiring the use of a jack hammer to shear off a rib to provide
greater clearance. 11 FMSHRC at 703. The cited obstruction was abated by
removing the fallen rock. Tr. 12, 17. Given these differences between the
impediment caused by the intentional placement of roof support timbers and
the impediment caused when rock had accidentally fallen against the conveyor
belt, he held that the safeguard notice did not encompass the conditions in
the citation. 11 FMSHRC at 703.
The inspector believed that whenever a clear travelway was not
provided for whatever reason, he should issue a citation, even though an
obstruction caused by fallen rock was not specifically addressed in the
safeguard notice. Tr. 63-64. A safeguard, however, must identify with
specificity the nature of the hazard against which it is directed and the
conduct required of the operator to remedy the hazard. Obstructions in
travelways caused by the deliberate placement of roof supports differ
fundamentally in nature, cause, and remedy from those that occur due to roof

falls. We find, therefore, that the prohibition against obstructions in
travelways caused by the placement of roof support timbers did not provide
sufficient notice to Green River that obstructions caused by roof falls
likewise were prohibited.
We reject the Secretary's argument that the concerns expressed by the
Commission in SOCCO I regarding the necessity for narrow construction of a

3 This same wide range of distinguishing factors was considered by the
judge in Mid-Continent when he concluded that the safeguard notice issued
because coal sloughage obstructed an escapeway did not encompass
obstructions caused by a trench and roof support timbers. 7 FMSHRC at 1461.
See n.2, supra.

notice to provide safeguard are valid only when the safeguard is not based
on a specific published criterion of sections 75.1403-2 through 75.1403-11.
See Sec. Br. at 10. The Secretary argues that a safeguard notice that is
based on a published criterion should be construed like a mandatory standard
and should apply to all factual circumstances reasonably encompassed by the
language of the criterion. The Secretary cites UMWA v. Dole, 870 F.2d 662
(D.C. Cir. 1989) as supporting her argument.
We have addressed a number of issues concerning the authority of the
Secretary of Labor to issue safeguards in decisions issued this date in the
following cases: Southern Ohio Coal Co., 14 FMSHRC, , Nos. WEVA 88-144-
R, etc.; BethEnergy Mines, Inc., 14 FMSHRC , Nos. PENN 89-277-R, etc.;
Mettiki Coal Corp., 14 FMSHRC , Nos. YORK 89-10-R, etc.; and Rochester
and Pittsburgh Coal Co., 14 FMSHRC , Nos. PENN 88-309-R, etc. In
BethEnergy, supra, we held that the fact that a safeguard is founded on a
published criterion does not affect either its validity or the manner in
which it is to be construed. The validity of a safeguard depends on whether
the safeguard is based on the inspector's evaluation of specific conditions
at the mine in question and on the inspector's determination that those
conditions created a specific transportation hazard in need of the remedy
prescribed. We determined that the principles with respect to roof control
plan criteria set forth in Dole are not relevant to cases involving
safeguards. We reaffirmed our holding in SOCCO I that a safeguard must
afford the operator fair notice of what is required or prohibited by the
safeguard. The fact that a safeguard is based on a published criterion does
not alter the fundamental consideration that a safeguard must be interpreted
more narrowly than a promulgated standard in order to balance the
Secretary's authority to require a safeguard and the operator's right to
fair notice of the conduct required by the safeguard. Slip op. at 8-9.

We conclude, therefore, that the judge properly construed the
safeguard notice and correctly found that it is not broad enough to
encompass the conditions described in the citation. Accordingly, we affirm

the vacation of the citation.