The American Coal Company

Plain-English summary

American Coal challenged the facial validity of thirteen mine-specific safeguards governing underground transportation conditions at its Galatia mine. The Commission held that a safeguard identifies the nature of a hazard when it describes a hazardous condition, and it need not list every possible injury or harm. Twelve safeguards were sufficiently specific because each described the condition observed and the required remedy. One safeguard concerning hydraulic components and walkway clearance was invalid because it did not state what conditions the inspector actually observed. The Commission affirmed the citations tied to the twelve valid safeguards and vacated Citation No. 6667919.

Decision snapshot

• Governing provisions: 30 U.S.C. § 874(b); 30 C.F.R. §§ 75.1403 and 75.1403-1
• Outcome: Twelve safeguards and their citations were affirmed; Safeguard No. 7582396 was held facially invalid, and Citation No. 6667919 was vacated.
• Key point: A safeguard must specifically describe the hazardous mine condition and the corrective conduct, but it need not catalog the injuries that could result.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 30, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

THE AMERICAN COAL COMPANY

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Docket Nos. LAKE 2007-139

LAKE 2008-79

LAKE 2008-41

LAKE 2008-84

LAKE 2008-122

LAKE 2008-237

LAKE 2008-532

LAKE 2008-536

LAKE 2008-537

LAKE 2008-538

LAKE 2008-539

LAKE 2008-42

LAKE 2008-43

LAKE 2008-81

LAKE 2008-145

LAKE 2008-533

LAKE 2008-534

LAKE 2008-535

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION

BY THE COMMISSION:

These consolidated civil penalty cases arise under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). At issue is the facial validity of 13 notices
of safeguards (“safeguards”) issued by the Mine Safety and Health Administration (“MSHA”).
Section 314(b) of the Mine Act grants the Secretary authority to issue “safeguards adequate, in
the judgment of an authorized representative of the Secretary, to minimize hazards with respect
to transportation of men and materials.” 30 U.S.C. § 874(b). See also 30 C.F.R. § 75.1403
(repeating verbatim section 314(b)).

The American Coal Company (“American”) contested 45 citations, as well as the
associated civil penalties which were proposed for the alleged violations of these safeguards.
The civil penalty proceedings were assigned to Administrative Law Judge Margaret Miller.
American then filed motions for summary decision, which alleged that the 13 safeguards were
invalid on their face. Judge Miller denied these motions, concluded that each individual
safeguard was facially valid, and issued a decision affirming the citations. 33 FMSHRC 169
(Jan. 2011) (ALJ). American petitioned for review of the judge’s decision, which the
Commission granted.

We affirm the judge’s decision with respect to 12 of the safeguards and the citations
associated with them. With respect to the remaining safeguard, Safeguard No. 7582396, we
conclude that it was invalidly written for the reasons set forth below. Accordingly, Citation No. 6667919, which alleges a violation of this safeguard, is vacated.

I.

Factual and Procedural Background

Section 314(a) of the Mine Act requires mine operators to provide particular safeguards
on hoists and other devices used to transport miners. 30 U.S.C. § 874(a). Section 314(b) grants
the Secretary authority to issue “[o]ther safeguards adequate, in the judgment of an authorized
representative of the Secretary, to minimize hazards with respect to transportation of men and
materials.” 30 U.S.C. § 874(b).

The Secretary has published general criteria to guide an inspector in determining when
particular safeguards may be required at a mine. 30 C.F.R. § 75.1403-1. An inspector may also
issue safeguards that are not anticipated in the published criteria. See 30 C.F.R. § 75.1403-1(a). If the safeguard is not provided by the operator within the time fixed, or if it is not maintained
thereafter, the operator will be issued a citation. 30 C.F.R. § 75.1403-1(b).

These proceedings involve safeguards issued to American’s Galatia underground coal
mine, located in Saline County, Illinois. 33 FMSHRC at 171. The safeguards, issued between
1990 and 2006, addressed transportation hazards involving mobile equipment, travelways,
conveyor belts, and hoists.

American contested the facial validity of the safeguards in two motions for summary
decision. The first motion, filed May 6, 2010, addressed eight safeguards and 24 citations. The
second motion, filed December 2, 2010, addressed five additional safeguards and seven more
citations. In total, American requested that the judge declare 13 safeguards to be facially invalid
and vacate 31 citations alleging violations of these safeguards. American argued that each of the
safeguards failed to “identify with specificity the nature of the hazard at which it is directed and
the conduct required of the operator to remedy such hazard.” Mots. at 3 (citing Southern Ohio

Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) (“SOCCO I”).

The Secretary opposed the motions,
contending that the safeguards provided sufficient information regarding both the hazards
involved and the methods of abatement.

The judge issued two orders denying the motions for summary decision. In the first order
she stated that:

At the heart of this dispute is a disagreement as to what is meant by
“hazard.” The Respondent equates “hazard” with potential
risks/outcomes that may occur as a result of conditions in a mine.
The Secretary argues that a safeguard is valid when the “type” of
hazard is identified.

Unpublished Order at 3 (Sept. 20, 2010). The judge concluded that the term “hazard,” as
contemplated by section 314(b) of the Mine Act, refers to “conditions [or] objects in the mine . . . that could affect the safe transportation of men and materials.” Id. She noted that while the
Secretary occasionally chose to include the potential risks in a safeguard, such language is not
required. Id. The judge found that because each safeguard specified hazardous conditions and
provided a remedy, each safeguard was therefore valid on its face. Id. at 3-11; Unpublished
Order at 4-8 (Jan. 4, 2011). 

On October 19, 2010, American filed a Motion for Certification for Interlocutory Review,
which was opposed by the Secretary. The judge denied the motion on November 10, 2010.

On December 27, 2010, the parties filed a list of joint stipulations, in which American
stipulated that the conditions alleged in each contested citation constituted a violation of the cited safeguard. See Stips. at 4-16. The judge stated that “[t]he stipulations allow for a final
order to be issued so that the validity of the underlying safeguards can then be appealed.” 33 FMSHRC at 171.

On January 4, 2011, the judge issued a final decision affirming the citations. Id. at 178-79. The decision incorporated both of the orders denying summary decision. Id. at 178.     

II.

Disposition

On review, American argues that the safeguards are invalid on their face, because each
fails to identify a specific hazard and some fail to specify the conduct required to comply. American submits that, in concluding that the safeguards were facially valid, the judge relied on
an interpretation of the term “hazard” that is inconsistent with Commission precedent. American
contends that as a result of these alleged defects and other ambiguities in the language of each
safeguard, it lacks fair notice of how to comply. In addition, the operator also contends that the
safeguards reflect hazards that are general in nature, and not specific to the Galatia mine.

The Secretary contends that the safeguards are facially valid, as they identify with
specificity the nature of the hazard and the conduct required by the operator to remedy the
hazard. She maintains that the judge’s interpretation of the term “hazard” in section 314(b) of
the Act is consistent with Commission precedent: a safeguard identifies “the nature of the
hazard” when it identifies the hazardous condition at which it is directed. Finally, the Secretary submits that because American never alleged, or offered evidence, that the safeguards were not
specific to the mine, the Commission should not consider this issue on appeal.

A.        American’s Argument that the Safeguards Were Not Based on Specific
Conditions at the Mine is Not Properly Before the Commission

At the outset, we first address American’s request that the Commission adopt “a rebutable
presumption against the validity of . . . safeguards [that are] issued repeatedly, to mine after mine
over the years.”

Section 113(d)(2)(A)(iii) of the Mine Act provides 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.” 30 U.S.C. § 823(d)(2)(A)(iii). Nonetheless, the Commission has stated that the limitation in section
113(d)(2)(A)(iii) is not viewed as a “procedural straitjacket.” See Beech Fork Processing, Inc.,
14 FMSHRC 1316, 1320 (Aug. 1992). The Commission 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., id. at 1321; Freeman United
Coal Mining Co., 6 FMSHRC 1577, 1580 (July 1984). The Commission’s practice has been to
resolve these “opportunity to pass” questions on a case-by-case basis. See, e.g., Ozark-Mahoning
Co., 12 FMSHRC 376, 379 (Mar. 1990). If none of these criteria is met, an issue may still be
heard on appeal upon a showing of “good cause.” 30 U.S.C. § 823(d)(2)(A)(iii).

The only argument that American presented before the judge was that the safeguards were
invalid on their face. American did not contend that the safeguards were of a general nature and
not based on conditions observed by inspectors at the Galatia mine. Rather, by filing summary
decision motions, American asserted that there were no issues of material fact in dispute. See
Commission Procedural Rule 67(b)(1), 29 C.F.R. § 2700.67(b)(1) (summary decision shall be
granted if “there is no genuine issue as to any material fact”). Furthermore, American has neither
contended nor shown that good cause exists for raising its argument for the first time on appeal.
Accordingly, we decline to review this issue as it is not properly before us.

B.        Precedent Addressing Safeguards 

The Commission has ruled that safeguards must be drafted with specificity, so that
operators receive adequate notice of the conduct required and the conditions covered by the
safeguard. SOCCO I, 7 FMSHRC at 512 (stating 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”). In SOCCO I, the operator was cited for violating a safeguard which
stated:

A clear travelway at least 24 inches along the No. 1 conveyor belt
was not provided at three (3) locations, in that there was fallen rock
and cement blocks. All conveyor belts in this mine shall have at least 24 inches of
clearance on both sides of the conveyor belts. This is a notice to provide safeguards.

Id. at 510. The Commission treated this safeguard as validly issued pursuant to section 314(b).
See id. at 514. The safeguard specified hazardous conditions, i.e., fallen rocks and cement blocks
obstructed a travelway at three locations, and a remedy, i.e., all conveyor belts in this mine shall
have at least 24 inches of clearance on both sides of the conveyor belts. The Commission
concluded implicitly that a safeguard which specifically identified hazardous conditions
specified “the nature of the hazard.”                           

However, in SOCCO I, the Commission held that the language of a safeguard is to be
narrowly construed.

Id. at 512. Accordingly, the Commission vacated the contested citation
which identified accumulated water in the travelway. The Commission concluded that the
safeguard did not specifically provide notice that accumulated water was prohibited. Id. at 513-14.

Although we have never expressly ruled on the facial validity of a safeguard, we have
consistently treated safeguards which specify hazardous conditions and provide a remedy, as
valid. See also, e.g., Southern Ohio Coal Co, 14 FMSHRC 1 (Jan. 1992) (“SOCCO II”);
Southern Ohio Coal Co., 14 FMSHRC 748 (May 1992) (“SOCCO III”); Green River Coal Co.,
14 FMSHRC 43 (Jan. 1992).

In SOCCO II, the Commission reviewed a judge’s determination that a safeguard was
invalid because it was not issued on a “mine-by-mine” basis. 14 FMSHRC at 2. The safeguard
stated:

Shelter holes are not provided at 105 foot intervals on the 1 Left
section supply track for a distance of 400 feet. Shelter holes shall
be provided on all track haulage roads in this mine . . . .

Id. at 3. The Commission remanded the case to the judge to reconsider the validity of the
safeguard, including the facts which led to its issuance. See id. at 13-15. However, the
Commission declared “the safeguard in question is valid if it was based on the specific
conditions at SOCCO’s mine and on a determination . . . that those conditions created a
transportation hazard . . .” Id. at 14. Facially the safeguard in SOCCO II specified a hazardous
condition, i.e., “[s]helter holes are not provided at 105 foot intervals,” and a remedy, i.e.,
“[s]helter holes shall be provided on all track haulage roads.” Id. at 3.

In SOCCO III, the Commission reviewed a judge’s decision to affirm a safeguard as valid
because it was based on criteria published in 30 C.F.R. § 75.1403-10(h). 14 FMSHRC at 749-50.
The operator contended that the judge erred and that the safeguard was invalid because it was
directed at hazards that were of a general nature rather than specific conditions at the mine. Id. at

750. The safeguard stated: 

Only 6 inches of side clearance was provided for the company no.
5062 rubber-tired scoop car being operated along the 3L2SW (014-0 mmu) supply track where supplies were being loaded into the
scoop bucket. This is a Notice to Provide Safeguards requiring that
a total of at least 36 inches of unobstructed side clearance (both
sides combined) be provided for all rubber-tired haulage equipment
where such equipment is used.

Id. at 749. The Commission remanded the case to the judge to consider whether “the safeguard
was based on the judgment of the inspector as to the specific conditions at the [mine] and on the
inspector’s determination that a transportation hazard existed that was to be remedied by the
action prescribed in the safeguard.” Id. at 752. Importantly, the Commission did not conclude
that the safeguard was invalid on its face when it specified a hazardous condition, i.e., “[o]nly 6
inches of side clearance” for a scoop car, and a remedy, i.e., “a total of at least 36 inches of
unobstructed side clearance [shall] be provided for all rubber-tired haulage equipment.” Id. at
749.

Similarly, in Green River Coal Co., the Commission reviewed a judge’s decision to vacate
a citation because the conditions alleged therein were not encompassed within the underlying
safeguard. 14 FMSHRC at 44-45 (the citation alleged that a roof fall obstructed the travelway).
The safeguard stated:

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.

Id. at 44. The Commission indicated that the “the nature of the hazard” in this safeguard was the “obstructions in travelways caused by the placement of roof support timbers” and treated the
safeguard as valid, while affirming the judge’s decision to vacate the citation. Id. at 47-49.

In summary, the cases above demonstrate that the Commission has consistently treated
safeguards that specify hazardous conditions and specify a remedy as valid safeguards.

C.        The Judge’s Interpretation of the Term “Hazard,” as Used in Section 314(b)
of the Mine Act

The judge stated that “the ‘hazard,’ as contemplated by section 314(b) of the Mine Act,
refers to conditions [or] objects in the mine . . . that could affect the safe transportation of men
and materials.” See Unpublished Order at 3 (Sept. 20, 2010); Unpublished Order at 3 (Jan. 4,
2011).

As discussed at length above, the term “hazard” in section 314(b) of the Mine Act has
been applied by the Commission as meaning hazardous conditions. Accordingly, we conclude
that the judge’s interpretation of “hazard” comports with Commission precedent. See, e.g.,
SOCCO I, 7 FMSHRC at 512 (where the Commission treated a safeguard as specifying “the
nature of the hazard” when it alleged a hazardous condition, and not a harm). We note
significantly that the judge rejected the necessity of naming a harm or risk in a safeguard for the
practical reason that “far too many potential risks exist with any hazard for an [i]nspector to be
expected to identify each and every one.” Unpublished Order at 3 (Sept. 20, 2010).

Moreover, we have recognized that the term “hazard” has more than one potential
definition. See Cement Div., National Gypsum Co., 3 FMSHRC 822, 827 & n.7 (Apr. 1981)
(referring to Webster’s Third New International Dictionary 1041 (1971)). The Commission
reaffirmed that the term can have multiple definitions in Enlow Fork Mining Co., 19 FMSHRC 5,
14 (Jan. 1997) (interpreting “hazardous condition” in 30 C.F.R. § 75.360(b)). In Enlow Fork, the Commission noted that hazard can both mean “a possible source of peril, danger, duress, or
difficulty” and “a condition that tends to create or increase the possibility of loss.”

Id. (citation
omitted).

American contends that the judge erred in her interpretation of the term, asserting that the
safeguard must articulate the specific risk or harm the miners face. The operator relies on the
description of “hazard” found in the Secretary’s Program Policy Manual (“PPM”),

the decision
of an ALJ in SOCCO III, and the Canadian Centre for Occupational Health and Safety’s website.
Id. at 9-11.

American’s arguments are not persuasive. First, it is well-established that the Secretary’s
PPM does not prescribe rules of law that are binding on the Secretary or the Commission. D.H.
Blattner & Sons, Inc., 18 FMSHRC 1580, 1586 (Sept. 1996); King Knob Coal Co., 3 FMSHRC
1417, 1420 (Jun. 1981). Moreover, although the PPM may encourage inspectors to identify a
harm in a safeguard, it is not an obligation. We agree with the conclusion of the judge, who stated
that “while, on occasion, the Secretary chooses to include language in the safeguard which
addresses the potential risks [or] outcomes associated with hazards, such inclusion is not
necessary under Commission case law.” Unpublished Order at 3 (Sept. 20, 2010).

We are also not persuaded by American’s reliance on the judge’s decision on remand in
SOCCO III. In SOCCO III, the safeguard stated that there was “only 6 inches of side clearance . . . for the scoop car being operated along the [] supply track” and it required “36 inches of
unobstructed side clearance (both sides combined) [to] be provided for all rubber-tired haulage
equipment where such equipment is used.” Southern Ohio Coal Co., 14 FMSHRC 1404, 1405
(Aug. 1992) (ALJ). This safeguard both specified a hazardous condition, i.e., six inches of side
clearance for the scoop, and specified a remedy, i.e., provide 36 inches of unobstructed side
clearance. Therefore, this safeguard complied with the requirements of SOCCO I. However, after
the Commission decision in SOCCO III, the judge on remand ruled that the safeguard was invalid
because it did not identify “[t]he hazards to the scoop operator [of] potential injuries from striking
the rib or the supply cars or in being struck by rib coal coming through the canopy [or the]
[h]azards to pedestrians [of] being struck by a scoop or by a dislodged supply car.” Id. at 1407.
The judge’s requirement to list the harms is contrary to SOCCO I’s requirement that a safeguard
state a hazardous condition and a remedy. Additionally, in the preceding Commission decision in
SOCCO III, the safeguard was not found to be invalid on its face. See SOCCO III, 14 FMSHRC
at 752 (remanding for the judge to consider, in part, whether the safeguard was based on the
specific conditions in the mine). In any event, the judge’s decision in SOCCO III is, of course,
not binding precedent upon the Commission. See 29 C.F.R. § 2700.69(d).

Finally, American’s reliance on the interpretation of the term “hazard” by the Canadian
Centre for Occupational Health and Safety is also not binding on the Commission nor is it
persuasive. American relies on a selected quote that states: “[s]ometimes a hazard is referred to as
being the actual harm or the health effect it caused rather than the hazard. For example, the
disease tuberculosis (TB) might be called a hazard by some but in general the TB-causing bacteria
would be considered the ‘hazard’ or ‘hazardous biological agent.’” PDR at 10 n.6 (citation
omitted). This quotation fails to provide any guidance in the present case.

In summary, we conclude that the judge correctly interpreted “hazard” in section 314(b) of
the Mine Act to mean “conditions/objects that could affect the safe transportation of men and
materials.” 

D.       Facial Validity of the Individual Safeguards

The parties stipulated for each citation “that the condition or practice described in . . . this
citation is a violation of the underlying safeguard cited.” E.g., Stips. at 4. Therefore, the only
issue before us is the facial validity of each safeguard, which is a purely legal issue. Accordingly,
we review the judge’s decision de novo. See Black Diamond Constr., Inc., 21 FMSHRC 1188,
1194 (Nov. 1999).

American argues that each safeguard is fatally ambiguous. However, in a prescient
footnote in SOCCO I, the Commission expressly cautioned against the approach taken by
American in this case, stating that “[t]he requirements of specificity and narrow interpretation are
not a license for the raising or acceptance of purely semantic arguments. We recognize that safeguards are written by inspectors in the field, not by a team of lawyers.” SOCCO I,

7 FMSHRC at 512 n.2 (citation omitted).  

For the following reasons, we find that 12 of the 13 safeguards at issue are facially valid,
as they meet the requirements of SOCCO I:

1.         Safeguard No. 7582643

The safeguard states:

The active 13th West Long wall working section, 058 MMU, was
not provided with a clear travelway between the long wall face
conveyor and the shield bases for the entire length of the long wall
face. Coal and gob was observed deposited in the walkway and on
the shield bases at various depths. This is a notice to provide
safeguard(s) requiring that all long walls at this mine shall maintain
the walkways and shield bases, between the face conveyor and the
shields, free of all extraneous materials that would affect the safe
travel of miners.

American alleges that the safeguard identifies conditions and not a hazard. The operator
also alleges that the term “extraneous material” lacks necessary specificity. In addition, it argues
that the safeguard does not adequately specify the corrective measures required of the operator.
The Secretary submits that the safeguard is appropriately specific.

We conclude that the safeguard specifies “the nature of the hazard,” i.e., coal and gob in
the walkway that would affect the safe travel of miners. The safeguard also specifies a remedy to
the hazard, i.e., maintain the walkway and shield bases free of extraneous materials that would
affect the safe travel of miners. Accordingly, we affirm the judge’s conclusion that the safeguard
is valid on its face. Unpublished Order at 9 (Sept. 20, 2010). Additionally, whether material is
“extraneous” would have been, at least in part, a question of fact to be resolved by the judge after
a hearing, which American waived.

2.         Safeguard No. 4054826

The safeguard states:

Accumulations of rib rash, rock, crib ties, belt rollers, and other
extraneous material was observed along both sides of the 1st section
main east belt conveyor, starting at survey station 675 east and
extending inby to survey station 5175 east at the 1st section belt tail. These accumulations were at various locations and were not
continuous.

This is a notice to provide safeguard requiring a clear 24 inch
travelway be maintained free of debris and extraneous material,
along both sides of all belt conveyors.

American argues that this safeguard on its face does not comply with SOCCO I, in part
because the language used is ambiguous as it does not specify what is considered “extraneous
material.” In its brief American asks hypothetically whether a fire extinguisher could be
“extraneous material” under the safeguard. The Secretary states that whether an item constitutes
“extraneous material” depends on the factual context.

We conclude that because the safeguard specifically identifies “the nature of the hazard,”
i.e., rib rash, rock, crib ties, belt rollers, and other extraneous materials and specifies a remedy,
i.e., a clear 24-inch travelway, it is valid on its face. Moreover, we conclude that whether a fire
extinguisher in a travelway constitutes “extraneous material” is partially a question of fact that is
to be resolved by a judge after a hearing, which American has waived. As a result, we affirm the
judge’s conclusion that the safeguard is valid on its face.

3.         Safeguard No. 7568565

The safeguard states:

Bottom irregularities, debris in the form of rock that had fallen from
the roof, and wet and muddy conditions were present on the mine
travelways at the following locations: on the Main East travelway
from no. 69 to no. 85 crosscut, on the 6th North travelway from the
mouth to no. 28 crosscut, and for the entire 6 North 5A unit
travelway, a distance of approximately 20 crosscuts. This Notice to
Provide Safeguards requires that all mine travelways be kept as free
as practicable of bottom irregularities, debris and wet and muddy
conditions that could affect the control of mobile equipment
traveling these areas.

American argues that this safeguard is ambiguous, does not provide it with notice of the
hazard, and does not specify the corrective measures required. In particular, the operator asserts
that the safeguard is ambiguous because it lacks a description of “bottom irregularities” and the
phrase “as free as practicable” is too subjective. The Secretary states that the possibility of a
disagreement between the operator and the Secretary over the interpretation of a safeguard does
not establish vagueness. She contends that the operator is making the type of semantic arguments
cautioned against in SOCCO I. She adds that, according to SOCCO I, any vague language in the
safeguard would be construed narrowly.

We conclude that this safeguard specifies “the nature of the hazard,” i.e., bottom
irregularities, debris, and muddy conditions in a travelway that could affect the control of mobile
equipment and specifies a remedy, i.e., all mine travelways are to be kept as free as practicable of
bottom irregularities, debris and muddy conditions that could affect the control of mobile
equipment. Hence, we affirm the judge’s conclusion that the safeguard is valid on its face.  

4.         Safeguard No. 3538483

The safeguard states:

[T]he established rubber-tired (off track) haulage roadway located
in the no. 1 entry of the 1st East Longwall tailgate entries was not
maintained to allow safe passage of miners and material. Numerous
pieces of bridging lumber (2 ½" x 10 ½” x 12' - 14'), which were
used to stabilize the mine floor, were dislodged or protruding from
the mine floor along this travel entry. This is a notice to provide
safeguards requiring all bridging lumber used on the mine floors be
secured or that loose and dislodged pieces of lumber be re-secured
or removed from the travelway.

American asserts that the safeguard does not provide notice of the harm it was intended to
prevent or how to remedy the condition. The Secretary counters that American’s “contention is
based on the flawed premise that knowledge of the potential harm(s) is necessary for the operator
to know how to comply with the notice . . . rather, the notice must specifically identify the means
of compliance.” S. Br. at 17.

We conclude that the safeguard specifies “the nature of the hazard,” i.e., haulage track
roadway was not maintained to allow safe passage because it contained dislodged or protruding
pieces of lumber, and specifies a remedy, i.e., secure or remove the loose pieces of lumber. We
affirm the judge’s conclusion that the safeguard is valid on its face.

5.         Safeguard No. 4268263

The safeguard states:

A clear travelway at least 24" inches wide was not provided on the
No. 4 Galatia Belt from the No. 4 Belt Drive for approximately 100'
feet, due to water and slurry conditions in an excess of 16" inches.
This is a notice to provide a safeguard for a clear travelway at least
24" inches wide shall be provided on both sides of all belt
conveyors and kept free from water and or slurry conditions that
would affect safe travel of miners.

American states that the safeguard fails to state a hazard. It also suggests that the
safeguard duplicates Safeguard No. 4054826. The Secretary asserts that the safeguard identifies a
hazardous condition that affected the safe travel of miners, and that this safeguard differs from
Safeguard No. 4054826, as the latter did not identify water accumulations.  

We conclude that this safeguard specifies “the nature of the hazard,” i.e., water and slurry
conditions in excess of 16 inches in a travelway, and a specifies a remedy, i.e., a clear travelway
of at least 24 inches wide shall be provided on both sides of the belt conveyor. We affirm the
judge’s conclusion that the safeguard is valid on its face.

In addition, we conclude that the safeguard in issue does not duplicate the protections
afforded by Safeguard No. 4054826. A safeguard must specifically provide notice that it is
intended to prevent accumulated water. SOCCO I, 7 FMSHRC at 513 (in which the Commission
vacated a citation issued for accumulated water in the travelway, because the safeguard did not
explicitly prohibit the accumulated water). This safeguard is aimed at preventing water
accumulations, whereas Safeguard No. 4054826 did not identify wet conditions.

6.         Safeguard No. 4054971

The safeguard states:

A miner was observed being hoisted from this coal mine, on the
MAIN – MAN and MATERIAL CAGE with the NORTH gate
secured in the open position. This gate measures nine (9) feet wide
by seven (7) feet high. This is a NOTICE to provide safeguards
requiring the gates on all cages, at this coal mine, be secured in the
closed position when persons are being hoisted or lowered.

American asserts that the safeguard is invalid on its face. The Secretary argues that “[i]f
the language of this safeguard notice is not sufficiently specific, no language will ever suffice.” S. Br. at 20.

We conclude that this safeguard specifies “the nature of the hazard,” i.e., a miner being
hoisted in a man cage with the gate secured in an open position, and specifies a remedy, i.e.,
secure the gate in the closed position when persons are being hoisted. In addition, we agree with
the Secretary that it requires only common sense to know that it is unsafe to travel in a hoist with
an open gate and that the remedy is to close the gate. S. Br. at 20. We affirm the judge’s
conclusion that the safeguard is valid on its face.

7.         Safeguard No. 4272082

The safeguard states:

Construction tractor (CT10) was not provided with a proper coupling
device. The construction tractor was enroute to the 8th west headgate
unit pulling a material trailer loaded with crib ties coupled only with a
belt chain. This is a notice to provide safeguard requiring that a
proper coupling device be used on CT10 and all other mobile
equipment used at this mine to transport materials and equipment.

American asserts that the safeguard is invalid on its face because it does not specify a hazard
or the corrective measures required. American suggests, in part, that the term “proper coupling
device” is too ambiguous. The Secretary contends that American has made the type of semantic
argument that SOCCO I cautioned against. She asserts that the safeguard specifies a hazard (a belt
chain used as a coupling device) and provides a remedy (the operator must use a device made
specifically for coupling).       

We conclude that this safeguard specifies “the nature of the hazard,” i.e., a construction
tractor that was pulling a material trailer with only a belt chain, and specifies a remedy, i.e., a proper
coupling device shall be used to transport materials and equipment. We affirm the judge’s
conclusion that the safeguard is valid on its face.  

8.         Safeguard No. 7570492

The safeguard (as modified) states: 

Accumulations of water and coal fines were present in the 2nd West
Longwall walkway from Shield # 102 to Shield No. 122. These
accumulations created a hazard for miners who must travel the
longwall walkway. This is a notice to provide safeguards requiring
that all longwall walkways be maintained free of water and slurry in
depths that affect the safe travel of miners.

American argues that the safeguard provides no indication of how much water and material
is prohibited. Furthermore, American suggests that this safeguard is duplicative of Safeguard No. 7582643. The Secretary states that the safeguard does specify how much water and
material is prohibited – the level that “affect[s] the safe travel of miners.”

We conclude that the safeguard specified “the nature of the hazard,” i.e., accumulations of
water and coal fines in the longwall walkway that affect the safe travel of miners, and a remedy, i.e.,
all longwall walkways are to be maintained free of water and slurry in depths that affect the safe
travel of miners. We affirm the judge’s conclusion that the safeguard is valid on its face.

In addition, we conclude that the safeguard at issue does not duplicate the protections
afforded by Safeguard No. 7582643. As previously discussed, according to SOCCO I, a safeguard
must specifically provide notice that it intended to prevent accumulated water. 7 FMSHRC at 513.
This safeguard is aimed at preventing water accumulations, whereas Safeguard No. 7582643 did not
identify wet conditions.

9.         Safeguard No. 4056981

The safeguard states:

The MT-11 personnel carrier located on the MMU 004, was not
provided with a well maintained audible warning device. It failed to
sound an alarm or warning when operated. This is a notice to provide safeguards that all personnel carriers shall
be equipped with well maintained, functional audible warning
devices.

American argues that this safeguard does not describe a hazard with specificity, and is
therefore invalid on its face. The operator also contends that the safeguard should be vacated
because it is duplicative of an existing mandatory standard, 30 C.F.R. § 75.1725(a) (requiring
mobile equipment to be maintained in safe operating condition). The Secretary contends that the
safeguard is valid, as it clearly states that the hazard is the lack of an audible warning device.

We conclude that this safeguard specifies “the nature of the hazard,” i.e., a personnel carrier
was not provided with a well maintained audible warning device, and specifies a remedy, i.e., all
personnel carriers shall be equipped with well maintained, functional audible warning devices. We
affirm the judge’s conclusion that the safeguard is valid on its face.

With respect to the duplication argument, American did not raise this issue before the judge,
and as a result it is not properly before us. See Beech Fork, 14 FMSHRC at 1319-20 (holding that
according to section 113(d)(2)(A)(iii) of the Mine Act, new theories are not considered on review in
the absence of good cause).

10.       Safeguard No. 7582396

The safeguard states:

This is a notice to provide safeguard for all long wall units, the
hydraulic manifolds, hoses and CIU shield control boxes shall be
mounted in a manner to provide the maximum walkway clearance
between the pan line cable tray rail and the shield components.

In the event that the clearances cannot be maintained to provide safe
travel in these areas for the miners the conveyor shall be shut off and
the electrical isolation switch at the head gate opened before miners
travel through the affected area.

American argues that this safeguard is invalid on its face because it does not identify the
“problem that required a safeguard.” In addition, the operator contends that it is uncertain how to
comply with the safeguard’s directive as it does not address a specific amount of clearance that is required. The Secretary counters that the safeguard complies with the requirement of SOCCO I on
its face. She asserts that the operator has demanded an impossible level of specificity.

The judge concluded that the safeguard was valid. Unpublished Order at 5 (Jan. 4, 2011).
She stated that the safeguard identified with necessary specificity, “the hazard of hydraulic
manifolds, hoses, and CIU shield control boxes which could obstruct the walkway . . .” Id. In
addition, she concluded that the conduct required to remedy the hazard, namely the objects must be
mounted in such a way that provides maximum walkway clearance between the pan line cable try
rail and the shield components, was also sufficiently specific. Id.

We disagree. We conclude that this safeguard does not describe “the nature of the hazard”
with specificity, and is therefore invalid on its face. The inspector did not describe the conditions
that he observed in the mine that led him to issue the safeguard. While one may be able to infer that
the inspector observed hydraulic manifold, hoses, and CIU shields boxes that were not mounted in a
manner that provided maximum walkway clearance, the safeguard does not specifically state if
some or all these conditions were observed by the inspector. As a result, it does not comply with
SOCCO I’s directive to “identify with specificity the nature of the hazard.” Therefore, the
safeguard is invalid on its face. Accordingly, we reverse the judge’s conclusion that the safeguard
was valid.

11.       Safeguard No. 4267616

The safeguard states:

The PV55 was not equipped with a sealed-beam headlight, or its
equivalent, on each end. The rear lights had a blown fuse.

This is a notice to provide safeguards that all personnel carriers shall
be equipped with a functional sealed-beam headlight or its equivalent
on each end.

American alleges that the portion of this safeguard involving a blown fuse does not identify
the hazard with specificity and that the safeguard is invalid on its face. The operator also alleges
that the requirements of the safeguard duplicate the requirements of the mandatory standard in 30
C.F.R. § 75.1725(a). The Secretary asserts that the safeguard is valid. She states that the safeguard
requires the operator to either fix a blown fuse, or remove the vehicle from service.

We conclude that this safeguard specifies “the nature of the hazard,” i.e., a PV55 that is not
equipped with sealed-beam headlights and has a blown fuse on the rear lights, and specifies a remedy, i.e., all personnel carriers are to be equipped with a functional sealed-beam headlight or its
equivalent on each end. We affirm the judge’s conclusion that the safeguard is valid on its face.

With respect to the duplication argument, American again did not raise the issue before the
judge, and as a result it is not properly before us. See Beech Fork, 14 FMSHRC at 1319-20.

12.       Safeguard No. 7577893

The safeguard states:

A material trailer was observed parked along the 4th North Headgate
at crosscut Number 24. The cable roof bolts, on the trailer, extended
outby the ribline approximately four feet into the travelway. A
continuous mining machine was also parked, along the Main West
Travelway, at crosscut Number 36 with the tail extending outby the
rib line approximately three feet. This is a Notice to provide
safeguards requiring all trailers and mine equipment be parked inby
the rib line at all times.

American alleges that this safeguard is invalid on its face, because in part, the safeguard
does not specify how the alleged condition contributes to a hazard. The Secretary asserts that the hazard was the parked vehicles and equipment in the travelways.  

We conclude that the safeguard specifies “the nature of the hazard,” i.e., a material trailer
that contained equipment that extended into the travelway and a continuous mining machine with a
tail that extended into the travelway, and specifies a remedy, i.e., all trailers and mine equipment are to be parked inby the ribline. We affirm the judge’s conclusion that the safeguard is valid on its
face.

13.       Safeguard No. 7581083

The safeguard states:

A suitable crossing facility was not provided for the energized 6th
North Conveyor Belt in the belt drive area, where miners are routinely
crossing under the energized belt conveyor. A bridge has been built
under the belt in this area for miners to cross under the moving belt.
This is a Notice To Provide Safeguards requiring where persons cross
moving belt conveyors that a suitable crossing facility shall be
provided.

American alleges that the safeguard does not describe a hazard that could result from a
miner crossing under a belt. Furthermore, it asserts that the conduct described in the safeguard is
too vague, and does not provide meaningful notice how to comply. The Secretary responds that if a
dispute were to arise over the meaning of a “suitable crossing facility” at a hearing, the Commission
would narrowly construe the language of the safeguard.

We conclude that the safeguard specifies “the nature of the hazard,” i.e., a suitable crossing
facility was not provided in a drive area where miners are routinely crossing, and specifies a
remedy, i.e., the operator is to provide a suitable crossing facility where persons can cross moving
belt conveyors. We affirm the judge’s conclusion that the safeguard is valid on its face.

III.

Although we have upheld all but one of the Secretary’s safeguards in this case, we again
take this opportunity to question, as a policy matter, “whether the proliferation of safeguards is the
most effective method of addressing the more commonly encountered hazards in underground coal
mine transportation.” SOCCO II, 14 FMSHRC at 15.

Transportation hazards are a major cause of injuries and fatalities in underground coal
mines. Id. Nonetheless, the Secretary has acknowledged that she has very few mandatory standards
addressing the haulage hazards in underground mines. Id. at 15-16 (citing the Secretary’s
Regulatory Agenda, 56 Fed. Reg. 53584 (1991); see also Wolf Run, 32 FMSHRC at 1241
(Commissioner Duffy, dissenting). We note that the absence of certain mandatory haulage safety
standards in underground coal mines stands in sharp contrast to the Secretary’s regulation of
transportation hazards at surface metal and nonmetal mines (30 C.F.R. Part 56), underground metal
and nonmetal mines (30 C.F.R. Part 57), and surface coal mines (30 C.F.R. Part 77). As a result of
this disparity, a miner in a surface coal mine receives greater protection against transportation
hazards than a miner working in an adjacent underground coal mine. This is because an
underground coal mine may lack a safeguard that adequately addresses a common transportation
hazard, and even if the safeguard does exist, as previously established, it only applies narrowly to
the conditions described by the issuing inspector. See SOCCO I, 7 FMSHRC at 512. In
comparison, the surface coal miner is protected by generally applicable mandatory standards, which
are interpreted broadly. See, e.g., Allied Chemical Corp., 6 FMSHRC 1854, 1859 (Aug. 1984);
Cleveland Cliffs Iron Co., 3 FMSHRC 291, 293-94 (Feb. 1981).

Accordingly, we reiterate our stance, taken in SOCCO II, that “because the use of individual
safeguards, issued on a mine-by-mine basis, may not adequately protect all affected miners from
haulage related hazards, we strongly suggest that the safety of underground coal miners would be
better advanced by the promulgation of mandatory safety standards aimed at eliminating
transportation hazards.” SOCCO II, 14 FMSHRC at 16 (emphasis in original).

IV.

Conclusion

In summary, we conclude that twelve of the safeguards at issue are facially valid. The valid
safeguards are Safeguard Nos. 4054826, 4054971, 4272082, 7568565, 3538483, 4268263, 7582643,
7570492, 4056981, 4267616, 7577893, 7581083. Accordingly, the judge’s decision upholding the
citations which allege a violation of these safeguards is affirmed.

With respect to Safeguard No. 7582396, we conclude that this safeguard is invalid on its
face. Accordingly, the judge’s decision with respect to Safeguard No. 7582396 is reversed, and
Citation No. 6667919, which alleges a violation of that safeguard, is vacated.

Mary Lu Jordan, Chairman

Michael F. Duffy, Commissioner

Michael G. Young, Commissioner

Robert F. Cohen, Jr., Commissioner

Patrick K. Nakamura, Commissioner

Distribution:

Daniel W. Wolff, Esq.

Crowell & Moring LLP

1001 Pennsylvania Avenue NW

Washington, DC 20004-2595

Noelle Holladay True, Esq.

Rajkovich, Williams, Kilpatrick & True PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Margaret Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-5268