Lanham Coal Company, Inc.

Plain-English summary

Lanham Coal was cited after an independent contractor's truck driver fell from a truck while unrolling a tarp at the company's surface coal mine. The citation alleged that the driver should have been using a safety belt and line under 30 C.F.R. § 77.1710(g). The Commission held that the standard had to give Lanham fair notice that it applied to this tarping activity, and that the ALJ had not applied the reasonably prudent person test to that notice question. The Commission vacated the ALJ's decision and remanded the case for further consideration of fair notice, without deciding the remaining issues.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1710(g)
• Outcome: The ALJ's decision was vacated and the case was remanded.
• Key point: A broad safety standard still must provide fair notice of how it applies to the specific conduct at issue.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
WASHINGTON, D.C.
September 3, 1991

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.             Docket No. KENT 89-186

LANHAM COAL COMPANY, INC.

BEFORE: Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners

                DECISION

BY THE COMMISSION:

  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" or "Act"), involves the issues of whether 30 C.F.R. 77.1710(g)
provides adequate notice of its applicability to the circumstances at
issue and, consequently, whether the judge erred in concluding that the
Secretary of Labor established a violation of the standard, and whether
the Secretary abused her discretion by citing Lanham Coal Company, Inc.
("Lanham") for a violation of section 77.1710(g) allegedly committed by
its independent contractor, Caney Creek Trucking Company ("Caney"). 1/
Commission Administrative Law Judge James A. Broderick determined that a
violation of the standard had occurred, and that the Secretary had not
abused her discretion by citing Lanham. 12 FMSHRC 879, 882-83 (April
1990) (ALJ). The Commission granted Lanham's petition for discretionary
review of the issue of whether the Secretary abused her discretion by
citing Lanham and granted sua sponte review of the issues of whether
Lanham had received adequate notice of the standard's applicability and
whether a violation had been established. For the reasons that follow,
we vacate the judge's decision and remand this case to the judge for
further consideration.

1/ 30 C.F.R. 77.1710, entitled "Protective clothing; requirements,"
provides in pertinent part:

       Each employee working in a surface coal mine

or in the surface work areas of an underground coal
mine shall be required to wear protective clothing
and devices as indicated below:

(g) Safety belts and lines where there is danger of
falling; a second person shall tend the lifeline when
bins, tanks, or other dangerous areas are entered.

I.

The essential facts are undisputed. Lanham owns and operates

Lanham No. 1, a surface coal mine located in Daviess County, Kentucky.
On January 23, 1989, Gazi Bokkon, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), and MSHA
inspector and accident investigator Harold Utley investigated an
accident that had occurred at the mine. They interviewed Tony Lanham,
then acting as a foreman for Lanham, and Gregory Weinstein, an employee
of Lanham, regarding the circumstances surrounding the accident.

Mr. Weinstein told the inspectors that while he was driving a load

of spoil to a dump area on December 29, 1988, he saw Charles Daugherty,
the owner of Caney and also a truck driver for Caney, standing on his
truck and unrolling a tarp. The truck was parked in a section of the
mine set aside for "tarping trucks." After he dumped his load of spoil,
Weinstein drove back by the truck but did not see Daugherty. Weinstein
told the inspectors that because "something just didn't feel right," he
stopped his truck, and leaned out to see if he could find Daugherty.
Weinstein saw Daugherty lying on the ground. Weinstein contacted Tony
Lanham by radio, and Daugherty was subsequently taken to the hospital.
On January 22, 1989, the day prior to the investigation, Daugherty died.
Lanham and the Secretary acknowledged in their briefs that Daugherty died
for reasons unrelated to his fall from his truck. S. Br. at 2; L. Br. at 3.

As part of their investigation, Inspectors Bokkon and Utley examined
the area of the mine set aside for tarping trucks. The area was level
and located approximately two to three hundred feet away from the pit from
which the coal was extracted. The area also was used at night to park
other equipment. The inspectors did not observe any structures that
indicated that safety lines or other means could be used by the truck
drivers for tarping trucks. Tr. 33.

The inspectors determined that "[a]s [Daugherty] was unrolling the

tarpaulin toward the rear of the trailer, he apparently slipped and fell
to the ground, a distance of approximately 10 feet." G. Exh. 3. They
concluded that Daugherty was not wearing a safety belt or line at the
time of his fall. Tr. 9-10. Based upon their investigative findings,
the inspectors issued a citation to Lanham pursuant to section 104(a) of
the Mine Act alleging a violation of section 77.1710(g), which citation

states that, "[a] contractor (truck driver) was working in an elevated
area and was not wearing a safety belt and lines where there was a
danger of falling." G. Exh. 2. The inspectors also found the violation
to be significant and substantial. Id. The citation was terminated on
February 14, 1989, because trucks were being tarped at another location
rather than on mine property. Tr. 20. No citation was issued to Caney.

 At the evidentiary hearing Lanham challenged the violation and the

Secretary's decision to cite it rather than Caney. The judge determined
that the Secretary had not abused her discretion by citing Lanham,
citing Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C.
Cir. 1986), and concluded that in cases in which independent contractors
commit violations of mandatory safety standards, the Secretary has
discretion "to cite production operators as [s]he sees fit." 12 FMSHRC
at 882. The judge found that a coal truck driver is in danger of falling
when fastening a tarp to a truck while standing on a load of coal.
12 FMSHRC at 883. The judge concluded that because Daugherty was not
wearing a safety belt or line while he was tarping his truck, a violation
of the standard had been established. The judge also found that the
violation did not result from Lanham's negligence, stating:

            Until MSHA was notified of the contractor
  truck driver's death, neither Lanham nor the
  inspector considered the standard applicable
  to the tarping of trucks. The inspector never
  observed safety belts or lines used in such
  situations in more than 40 years of mining
  experience. MSHA had no standards or guidelines
  concerning this practice. Lanham had no specific
  notice that the practice violated the standard. It
  would be absurd under these circumstances to conclude
  that the violation resulted from Lanham's negligence.

12 FMSHRC at 883. The judge assessed a civil penalty in the amount
of $250 against Lanham, rather than the penalty of $2,500 proposed
by the Secretary. Id. The Commission subsequently granted Lanham's
petition for discretionary review challenging the judge's finding that
the Secretary had not abused her discretion by citing Lanham and
granted sua sponte review on the issues of "whether 30 C.F.R. 77.1710(g)
provides adequate notice of its applicability to the circumstances at
issue and whether the judge erred in concluding that the Secretary
established a violation of the cited standard."

II.

Section 77.1710(g) is not detailed but rather is of the type

made "simple and brief in order to be broadly adaptable to myriad
circumstances." See Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November
1981); Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December 1982).
Nevertheless, such a broad standard must afford reasonable notice of
what is required or proscribed. U.S. Steel Corp., 5 FMSHRC 3, 4 (January
1983). The safety standard must "give the person of ordinary intelligence
a reasonable opportunity to know what is prohibited, so that he may act
accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972);

see also Phelps Dodge v. FMSHRC, 681 F.2d 1189, 1192 (9th Cir. 1982).

When faced with a challenge that a safety standard failed to

provide adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the reasonably
prudent person test. The Commission recently summarized this test as
"whether a reasonably prudent person familiar with the mining industry
and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard." Ideal Cement
Co., 12 FMSHRC 2409, 2416 (November 1990). "In order to afford adequate
notice and pass constitutional muster, a mandatory safety

standard cannot be 'so incomplete, vague, indefinite or uncertain that
[persons] of common intelligence must necessarily guess at its meaning
and differ as to its application.'" Id. quoting Alabama By-Products Corp.,
4 FMSHRC at 2129 (citations omitted).

Although the judge considered the question of prior notice when

determining Lanham's degree of negligence, it appears that he did not
apply the reasonably prudent person test when determining whether Lanham
had notice of the specific requirements of section 77.1710(g). 12 FMSHRC
at 883. Accordingly, we are remanding this proceeding to the judge so
that he may determine, through application of the reasonably prudent
person test, whether Lanham had fair notice that section 77.1710(g)
required the use of safety belts or lines under the circumstances of
this case. We do not reach the other issues raised in this case.

For the foregoing reasons, we vacate the judge's decision and
remand this proceeding for further consideration by the judge.

Distribution

Flem Gordon, Esq.
Gordon & Gordon
P.O. Box 390
Owensboro, Kentucky 43202

Carl C. Charneski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

William E. Hynan, Esq.
Rebecca A. DeSimone, Esq.
National Coal Association
1130 17th Street, N.W.
Washington, D.C. 20036

Henry Chajet, Esq.
Laura Beverage, Esq.
Jackson & Kelly
1701 Pennsylvania Ave., N.W., #650
Washington, D.C. 20006

Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041