Secretary of Labor v. Big Ridge, Inc.

Plain-English summary

MSHA cited Big Ridge after mantrips transported miners with bundles of roof bolts, chain hangers, and a bucket of chain. An ALJ vacated the citation after finding that the underlying safeguard did not identify the hazard with enough specificity. The Commission reversed, holding that the safeguard identified both the hazardous condition, an unsecured ram-car bed jack next to a mantrip driver, and the required remedy, not transporting supplies or tools with miners except for small hand tools or instruments. A safeguard does not also have to describe every injury or event that could result from noncompliance. The Commission upheld the safeguard's validity and remanded the citation contest without deciding whether the cited conduct violated it.

Decision snapshot

• Cited standards: 30 U.S.C. § 874(b); 30 C.F.R. § 75.1403-7(k)
• Outcome: The safeguard was held valid, the ALJ was reversed, and the citation contest was remanded.
• Key point: A mine-specific safeguard is sufficiently specific when it identifies the hazardous condition and the conduct required to correct it.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 
20004-1710

SECRETARY OF LABOR,                          :          
Docket Nos. LAKE 2008-436

MINE SAFETY AND HEALTH               :                                
LAKE 2009-057

ADMINISTRATION (MSHA)                 :             
                    LAKE 2009-058

:                                  LAKE 2009-059

v.                                            :                                 
LAKE 2009-378

:                                

BIG RIDGE, INC.                                       
:                       

BEFORE:  Nakamura, Acting
Chairman; Cohen and Althen, Commissioners

DECISION               

BY THE COMMISSION:

These civil
penalty proceedings, which arise under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”), involve, in part, a
citation issued to Big Ridge, Inc., by the Secretary of Labor’s Mine Safety and
Health Administration (“MSHA”) for an alleged violation of a notice of
safeguard.  The safeguard notice was previously issued to Big Ridge by MSHA
pursuant to section 314(b) of the Mine Act.[1]

On September 8,
2011, an Administrative Law Judge issued a decision vacating the citation at
issue here.  33 FMSHRC 2238, 2250 (Sept. 2011) (ALJ).  He concluded that the
underlying safeguard was invalid because it did not provide the operator with
sufficient notice of a hazard with respect to the transportation of men or
materials.  Id.  The Secretary subsequently filed a petition for
discretionary review, which the Commission granted.  

For the reasons
that follow, we reverse the Judge, find that the safeguard is valid, and remand
the case to the Chief Administrative Law Judge for further proceedings
consistent with this decision.[2]

I.

Factual and Procedural Background

On August 11,
2008, an MSHA inspector visited Big Ridge’s Willow Lake Portal, a large coal
mine in southeastern Illinois.  Tr. 30-33.  As a result of his observations at
the mine, the inspector issued Citation No. 6674618[3]
for an alleged violation of Safeguard No. 7583088.  Gov. Exs. 16, 17.[4] 

Safeguard No.
7583088, which had been issued by another MSHA inspector on July 12, 2006,
states:

DT
15-160 [a mantrip] was observed coming out of the mine with a ram car bed jack
adjacent the driver unsecured in the vehicle.  This is a notice to provide
safeguards requiring that supplies or tools, except small hand tools or
instruments, should not be transported with men at this mine.

Gov. Ex. 17 (restating the
criteria at 30 C.F.R. § 75.1403-7(k), which provides that “[s]upplies or tools,
except small hand tools or instruments, should not be transported with men”).

Big
Ridge contested the citation.  At the hearing, Big Ridge contended that the
underlying safeguard was invalid.  33 FMSHRC at 2250.  Specifically, the
operator argued that the safeguard failed to meet the Commission’s requirement
that a safeguard identify with specificity the nature of the hazard at which it
is directed.  The Secretary maintained that the safeguard was valid because it
provided notice of a specific hazard and the remedy required. 

The
Judge concluded that the safeguard was invalid because it failed to “identify
with specificity the nature of the hazard.”  33 FMSHRC at 2250 (citing Southern
Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) (“SOCCO I”)).  The
Judge categorically rejected the Secretary’s argument that adequate notice of a
hazard is provided when the safeguard specifically describes the hazardous
condition observed by the inspector.  Id. (citing MSHA’s Program Policy
Manual (“PPM”), Vol. 5 Subpart O).   The Judge vacated the citation.

II.

Disposition

We conclude that the Judge erred in his analysis.  Section
314(b) of the Mine Act

requires that the issuing inspector provide notice of
a hazardous condition or practice in the safeguard.  The American Coal Co.,
34 FMSHRC 1963, 1969 (Aug. 2012); see also Oak Grove Res., LLC, 35
FMSHRC 2009, 2014 (Jul. 2013).  For the reasons that follow, the safeguard is
valid.

In American Coal, the Commission stated that it
has consistently held that “safeguards that specify hazardous conditions and
specify a remedy [are] valid safeguards.”  34 FMSHRC at 1969, 1972-80 (emphasis
in original).  See also SOCCO I, 7 FMSHRC at 512 (“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”); Southern
Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992); Southern Ohio Coal Co., 14
FMSHRC 748 (May 1992); Green River Coal Co.,

14 FMSHRC 43 (Jan. 1992). 

The Commission, however, has expressly rejected the
argument that a safeguard must include a description of the types of risks or
harms that may be associated with the cited hazardous condition.  American
Coal, 34 FMSHRC at 1969-1971.  A valid safeguard must be drafted with the
specificity required to provide an operator adequate notice of the condition
covered and the conduct that is required, but it need not foreshadow the events
that may occur in its absence.  Id. at 1967; see also Oak
Grove Res., 35 FMSHRC at 2014. 

For example, the valid safeguard at issue
in SOCCO I 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.

7 FMSHRC at 510.  Notably, the safeguard specified a
hazardous condition, i.e., fallen rocks and cement blocks obstructing a
travelway at three locations, and a remedy, i.e., all conveyor belts shall have
at least 24 inches of clearance on both sides.

Similarly, the safeguard at issue in the
case before us describes a hazardous condition, i.e., a mantrip traveling with
an unsecured ram car bed jack adjacent to the driver, and a remedy, i.e.,
supplies or tools, except for small hand tools or instruments, should not be
transported with men. [5] 
Therefore, we conclude that the safeguard complies with the Commission’s test
for

validity.[6] 
See American Coal, 34 FMSHRC at 1969.  The safeguard is valid, and a
reasonably prudent person familiar with the mining industry would understand
its requirements. 

We also conclude that the Judge erred in suggesting that
the Secretary’s PPM establishes the test for safeguard validity.  33 FMSHRC at
2250.  The PPM does not prescribe binding rules of law.  American Coal, 34
FMSHRC at 1970-71; D.H. Blattner & Sons, Inc., 18 FMSHRC 1580, 1586
(Sept. 1996); King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981). 
While the Secretary’s PPM may encourage the issuing inspector to identify the
types of injuries that the safeguard is intended to prevent, the Commission has
never held that the Secretary is bound by the recommendations in a PPM.

III.

Conclusion

Accordingly, we
reverse the Judge and hold that the safeguard is valid.  The civil penalty
contest of Citation No. 6674618 is hereby remanded to the Chief Administrative
Law Judge for further proceedings consistent with this decision.[7] 

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Acting Chairman

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

[1]
 Section 314(b) provides that “[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 shall be provided.”  30 U.S.C. § 874(b).

[2]
 The Administrative Law Judge who authored the
September 2011 decision has since retired
from the Commission.

[3]
 The citation states:

Two
mantraps [sic] were observed transporting roof bolting materials in the mantrip
with the miner.  DT-18 had 12 bundles of 4 foot roof bolts (5 bolts to the
bundle) standing up in the seat.  DT-04 had 7 bundles of 4 foot roof bolts (5
bolts to the bundle) standing up in the seat, 28 chain hangers in the floor
board under the passengers feet, a bucket of chain in the passenger seat behind
the driver.

Gov. Ex. 16.

[4]
 While other mandatory safety and health
standards are adopted through notice and comment rulemaking, section 314(b) of
the Mine Act provides the Secretary authority to create safeguards, which are
in effect, mandatory safety standards issued on a mine-by-mine basis.  Southern
Ohio Coal Co., 10 FMSHRC 963, 966 (Aug. 1988) (citation omitted).  The
broad language of the provision “manifests a legislative purpose to guard
against all hazards attendant upon haulage and transport in coal mining.  Jim
Walter Res., Inc., 7 FMSHRC 493, 496 (Apr. 1985).  An MSHA inspector issues
a written safeguard notice to an operator specifying the safeguard the operator
must provide.  If compliance does not occur, the inspector issues a citation
pursuant to section 104 of the Mine Act.  30 C.F.R. § 75.1403-1(b). 

[5]
 Tellingly, Big Ridge does not contend that an
unsecured ram car bed jack that is located adjacent to a driver in a mantrip is
not a hazardous condition.

[6]
 To the extent the Judge relied on the testimony
of the inspector in determining the validity of the safeguard, he erred.  At
the hearing, the inspector testified that he did not believe that the safeguard
described a “hazard.”  See 33 FMSHRC at 2250 (citing Tr. 401, 426-27).  However, the legal conclusions of an inspector are
neither binding nor dispositive.  See Penn Allegh Coal Co., 4 FMSHRC
1224, 1227 n.2 (July 1982).

[7] 
In his opening brief, the Secretary requests
that the Commission affirm a finding of a violation for Citation No. 6674618.  However,
this issue is not properly before the Commission; it was not raised in the
Secretary’s petition for review.  See 30 U.S.C. § 823(d)(2)(A)(iii); 29
C.F.R.

§ 2700.70(d).