Beech Fork Processing, Inc.

Plain-English summary

Beech Fork Processing was cited twice after firefighting equipment at its mine was not maintained in usable and operative condition. The judge found that the violations of 30 C.F.R. § 75.1100-3 were not significant and substantial because the evidence did not show that a fire was reasonably likely to occur under the conditions cited. On review, the Secretary argued for the first time that an emergency should be presumed when evaluating the S&S issue. The Commission declined to consider that new theory because it had not been presented to the judge and affirmed the judge’s non-S&S findings.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1100-3
• Outcome: The judge’s findings that the violations were not significant and substantial were affirmed.
• Key point: A party generally cannot introduce a new legal theory for the first time on Commission review when the judge had no opportunity to decide it.

Full text (FMSHRC public release)

CCASE:
MSHA V. BEECH FORK PROCESSING
DDATE:
19920828
TTEXT
August 28, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. KENT 90-398

BEECH FORK PROCESSING, INC.

BEFORE: Ford, Chairman; Backley, 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 a dispute between the Secretary of Labor and Beech Fork Processing,
Inc. ("Beech Fork") regarding whether Beech Fork's two violations of 30 C.F.R.
 75.1100-3 may properly be characterized as being of a significant an
substantial ("S&S") nature.(Footnote 1) Commission Administrative Law Judge
James A. Broderick concluded that the violations were not S&S because he did
not find that the hazards contributed to by the violations were reasonably
likely to occur. 13 FMSHRC 576 (April 1991)(ALJ). The Commission granted
the
Secretary's petition for discretionary review challenging the judge's S&S
determinations. On review, the Secretary's challenge is based entirely on the
theory that the S&S nature of the violations should be examined in the context
of the presumed occurrence of an emergency. Because the Secretary failed to
raise this theory before the judge, we are unable to consider it on review,

1
30 C.F.R. • 75.1100-3, entitled "Condition and examination of firefighting
equipment," provides:
All firefighting equipment shall be maintained
in a usable and operative condition. Chemical
extinguishers shall be examined every 6 months and the
date of the examination shall be written on a
permanent tag attached to the extinguisher.
The S&S terminology is taken from section 104(d)(1) of the Act, 30
U.S.C. • 814(d)(1), which, in pertinent part, distinguishes as more serious in
nature any violation that "could significantly and substantially contribute to
the cause and effect of a ... mine safety or health hazard...."
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Page 2

given the review strictures of the Act. Under these circumstances, we affirm
the judge's decision.(Footnote 2)
I.
Factual Background and Procedural History
On April 12, 1990, Kellis Fields, an inspector for the Department of
Labor's Mine Safety and Health Administration ("MSHA"), issued a citation to
Shamrock pursuant to section 104(a) of the Act, 30 U.S.C. • 814(a), alleging
an S&S violation of section 75.1100-3. The citation states:
The deluge type fire suppression system installed for
fire fighting purposes was not being maintained in a
usable or operative condition. When tested water
would not flow through the branch lines. For the 1-A
belt conveyor drive.
On April 16, 1990, Inspector Fields issued a second section 104(a)
citation to Shamrock alleging another S&S violation of section 75.1100-3. The
citation states:
The dry chemical type fire suppression system
installed for fire fighting equipment on the No. 2 10
shuttle car on the 002-0 section was not being
maintained in a useable and operative condition. The
branch line going to the tank was broken off leaving
the system open if either ... was activated.
Following an evidentiary hearing, Judge Broderick concluded that
Shamrock had violated section 75.1100-3, as alleged in the first citation,
because the deluge fire suppression system on the belt line was not maintained
in a usable and operative condition as required by the standard. However, the
judge rejected the Secretary's allegations that the violation was S&S. The
judge found:
The hazard to which this violation contributes is fire
and smoke which could travel inby from the belt
conveyor to the section. A fire could result from
stuck rollers, friction, or coal spillage including
float coal dust. The inspector testified that these
are common occurrences in coal mines. However, there
is no evidence of any such conditions in the area of
the cited violation. The evidence does not establish

2
Our decision in this matter is one of three issued on this date involving
the Secretary's attempt to raise this new theory on review without having
first presented it to the judges below. The two other decisions issued today
are: Shamrock Coal Co., Inc., 14 FMSHRC , Docket No. KENT 90-60 (August
1992), and Shamrock Coal Co., Inc., 14 FMSHRC , Docket Nos. KENT 90-137
and KENT 90-142 (August 1992).
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Page 3

that the hazard contributed to is reasonably likely to result in
serious injury. The citation was not properly designated as
significant and substantial.
13 FMSHRC at 578.
The judge also concluded that Shamrock violated section 75.1100-3, as
alleged in the second citation, because the dry chemical type fire suppression
system on the cited shuttle car was inoperative. 13 FMSHRC at 579. He again
rejected the Secretary's S&S allegations, finding:
The traction motor on the shuttle car has electrical
components and the cable going back to the power
center carries 440 volt ac power. If the traction
motor shorted out and ignited accumulations of oil,
grease, or coal dust, or a cut in cable caused a
spark, a fire could result, which could cause smoke
inhalation injuries to miners on the section.
However, there is no evidence of any oil, grease or
coal dust, and no evidence of any electrical problems
or defects in the motor or cable. Therefore, the
evidence fails to show that the hazard contributed to
was reasonably likely to result in injuries to miners.
The citation was not properly designated as
significant and substantial.
13 FMSHRC at 579.
Beech Fork did not seek review of the judge's determination that it
violated the standard. The Secretary seeks review of the judge's S&S finding.
She argues that the judge erred in finding that the violations were not S&S
based on his determination that a fire was not reasonably likely to occur
under the circumstances surrounding the violations. S. Br. at 5-6. The
Secretary maintains that, when considering the S&S nature of a violation
involving a safety standard that is designed to take effect only in an
emergency situation, the occurrence of such an emergency should be presumed.
S. Br. at 3-4. The Secretary argues that the relevant question under the
Commission's test in Mathies Coal Co., 6 FMSHRC 1 (January 1984), therefore,
is not whether a fire is reasonably likely to occur but is, instead, "given
the presence of a fire at the belt head drive or on the shuttle car, whether
the failure to have operative firefighting equipment is reasonably likely to
result in serious injuries or deaths that would not otherwise occur if such
equipment was properly functioning as required by the standard." S. Br. at
5-6.(Footnote 3) The Secretary does not argue in the alternative that the
judge's

3 A violation is properly designated as S&S "if, based on the particular
facts surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a reasonably
serious nature." Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April

Page 4

1981). In Mathies, the Commission explained:
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determination that a fire was not reasonably likely to occur is without
substantial evidence. Thus, the Secretary's case on review hinges entirely on
the proposition that an emergency event should be presumed for purposes of the
S&S analysis.(Footnote 4)
II.
Disposition of Issues
The Secretary presents a new theory in this case, i.e., that the S&S
nature of violations involving safety standards that provide protection only
in the event of an emergency should be examined in the context of the presumed
occurrence of that emergency. The Secretary, however, failed to present this
theory below for consideration by the judge and, therefore, has not preserved
it for the Commission's review.
Explicit limits to Commission review are provided in section 113(d) of
the Mine Act, 30 U.S.C. • 823(d). Section 113(d)(2)(A)(iii) of the Act, 30
U.S.C. • 823(d)(2)(A)(iii), provides, in pertinent part, that "[e]xcept for
good cause shown, no assignment of error by any party shall rely on any
question of fact or law upon which the administrative law judge had not been
afforded an opportunity to pass." See also Commission Procedural Rule 70(d),
29 C.F.R. • 2700.70(d). The key Senate Report on the bill that was enacted as
the Mine Act explains this provision as follows:
ÄÄÄÄÄÄÄÄÄÄÄÄÄ
2
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety --
contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
6 FMSHRC at 3-4. See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies
criteria). The Commission has held that the third element of the Mathies
formula "requires that the Secretary establish a reasonable likelihood that
the hazard contributed to will result in an event in which there is an
injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984).

4
Beech Fork did not file a response brief before the Commission, and

Page 5

proceeded pro se at the evidentiary hearing.
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The Committee believes that the provision of
section 114(d)(2) [section 113(d)(2)] that matters not
raised before an Administrative Law Judge may not be
raised before the Commission (except for good cause
shown) and the provision of section 107(a) [section
106(a)] that objections not raised before the
Commission cannot be raised before a reviewing court
are consistent with sound procedure and do not deny
essential due process. The Committee notes that
fairness is also protected by provisions which would
permit remanding of cases for further factfinding
where warranted. It is the Committee's intention that
the Commission and Administrative Law Judges permit
parties every reasonable opportunity to adequately
develop the record within these constraints and
consistent with its duty to resolve matters under
dispute in an expeditious manner.
S. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977 at 637
(1978).
The explicit statutory limitation on the scope of Commission review set
forth in section 113(d)(2) may be raised as an issue by an objecting party or,
sua sponte, by the Commission itself, at any appropriate time during the
Commission review process. See Midwest Minerals, Inc., 12 FMSHRC 1375,
1378
(July 1990); Ozark-Mahoning Co., 12 FMSHRC 376, 379 (March 1992); Union
Oil of
California, 11 FMSHRC 289, 301 (March 1989)("Unocal"). This limitation on
review is an important feature of the administrative trial and appeal
structure established by the Act.
Here, the Secretary presented testimony at trial as to the existence of
factors that would cause an ignition to be reasonably likely to occur, in an
attempt to demonstrate that it was reasonably likely that injuries would occur
as a result of the violations. See, e.g., Tr. 26-27, 30-31, 49-52. In other
words, the Secretary proceeded along established Mathies lines. N.3 supra.
Neither party filed a post-hearing brief. The Secretary's theory on review
that the occurrence of a fire should be presumed is a departure from her trial
position. Thus, on review, the Secretary relies on a theory upon which the
judge "had not been afforded an opportunity to pass." Nor has the Secretary
demonstrated any cause for her failure to present her theory to the judge.
The Commission's practice has been to resolve these "opportunity to
pass" questions on a case-by-case basis. See, e.g., Ozark-Mahoning, supra, 12

Page 6

FMSHRC at 379; Unocal, supra, 11 FMSHRC at 297-98, 300-01; Richard Bjes v.
Consolidation Coal Co., 6 FMSHRC 1411, 1417 (June 1984). The Commission
has
not viewed this limitation as a procedural straitjacket. However, in general,
a matter must have been presented below in such a manner as to obtain a ruling
in order to be considered on review. See generally 4 C.J.S. Appeal & Error
 243 (1957). The matter must be raised with "sufficient specificity an
clarity [so] that the [judge] is aware that [he] must decide the issue."
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Wallace v. Dept. of the Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989). The
Commission also has recognized that a matter urged on review may have been
implicitly raised below or is so intertwined with something tried before the
judge that it may properly be considered on appeal. See, e.g., Freeman United
Coal Mining Co., 6 FMSHRC 1577, 1580 (July 1984). Here, however, none of the
foregoing criteria is satisfied. The Secretary argued below only the theory
that factors existed making a fire reasonably likely to occur. Thus, the
judge was most likely unaware of the Secretary's theory that the S&S nature of
the violations should be evaluated in the context of the presumed occurrence
of an emergency.
The Mine Act establishes an orderly, two-tiered litigation system
consisting of trial before a Commission judge and appellate review by the
Commission. This system provides for the creation of the factual record
before the trier of fact. The rationale for requiring lower tribunals to
first pass upon questions is that subsequent review is not hindered by the
lack of necessary factual findings and the lack of application of the lower
court's expertise or discretion. See, e.g., Railroad Yardmasters of America
v. Horns, 721 F.2d 1332, 1338 (D.C. Cir. 1983); Terkildsen v. Waters, 481 F.2d
201, 204-05 (2d Cir. 1973). The Secretary's actions here conflict with this
basic principle, that parties in Mine Act cases must first present their
evidence and advance their legal theories before the judge, and not for the
first time on appeal. Unocal, 11 FMSHRC at 301. The U.S. Court of Appeals
for the D.C. Circuit has recognized the general rule that litigation theories
not pursued in a lower court will not be heard on appeal. See, e.g., Short v.
UMWA, 728 F.2d 528, 532 (D.C. Cir. 1984); Kassman v. American University,
546
F.2d 1029, 1032 (D.C. Cir. 1976).
The Commission's National Gypsum decision was issued in 1981. In its
Mathies decision issued in 1984, the Commission set forth the requirements for
establishing the S&S nature of a violation under National Gypsum. 6 FMSHRC at
3-4. The essence of Mathies analysis is a careful examination of the evidence
surrounding a specific violation; use of the presumption advanced by the
Secretary would represent a departure from that analysis. It is incumbent
upon the Secretary to develop a trial record demonstrating why the presumption
that she wishes the Commission to accept is legally supportable. Cf. Unocal,
11 FMSHRC at 297 & n.6.

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In sum, the Secretary has asserted on review a theory upon which the
judge was not afforded an opportunity to pass. She also has asserted no
reason for her failure to present this theory to the judge. The language of
section 113 of the Mine Act and Commission precedent bar us from considering
the Secretary's theory in this case. See, e.g., Ozark-Mahoning, 12 FMSHRC at
379; Unocal, 11 FMSHRC at 297-98, 300-301. Because the Secretary did not
proceed on alternative grounds, no other basis for review is presented.
Accordingly, we affirm the judge's decision.
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III.
Conclusion
For the reasons set forth above, we affirm the judge's decision that
Beech Fork's violations of section 75.1101-3 were not S&S.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner