Secretary of Labor v. Black Beauty Coal Company

Plain-English summary

MSHA issued Black Beauty Coal a safeguard requiring 24-inch travelways beside belt conveyors after fallen coal and rock blocked both sides of a belt. A later modification required those travelways to be clear of mud and water, and MSHA issued four citations for violating the modified safeguard. The Commission majority held that the original notice and modification must be read together and sufficiently identified obstructing accumulations and the required clear travelway. It rejected the argument that a safeguard must describe a particular resulting injury rather than the hazardous condition and remedy. Commissioners Michael G. Young and William I. Althen dissented because the mud-and-water requirement did not identify a mine-specific hazard or a clear limit on prohibited wet conditions. The four citations were affirmed.

Decision snapshot

• Cited standard: 30 C.F.R. §§ 75.1403-1(b), 75.1403-5(g)
• Outcome: The original and modified safeguard notices were held valid, and four related citations were affirmed.
• Key point: A safeguard modification may be read with the original notice to define the covered hazard and remedy, even when the modification expands the types of material that must be cleared.

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,                           
:

MINE SAFETY AND HEALTH                 
:        

ADMINISTRATION (MSHA)                    
:                                

:         Docket No. LAKE 2009-570                       

v.                                              
:                               

:                                

BLACK BEAUTY COAL COMPANY        
:                                

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

DECISION

BY: Jordan, Chairman; Cohen
and Nakamura, Commissioners

This
proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). At issue is the validity of
an original safeguard notice and its modification, issued to Black Beauty Coal
Company by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”), which served as the basis for four citations in this matter.

The
Judge found the notice of safeguard and the modification to be valid, and
affirmed the four related citations. Order Denying Respondent’s Motion to
Dismiss (Feb. 2011) (ALJ); 33 FMSHRC 1504 (June 2011) (ALJ).[1]
Black Beauty seeks review of those portions of the decision and order in which
the Judge found the safeguard notice and modification to be valid. Specifically,
Black Beauty claims that the notice and modification do not meet the
requirement that a valid safeguard notice must identify a hazard with
specificity. Black Beauty accordingly requests that the four citations be
vacated because they were issued pursuant to an invalid notice of safeguard. Black
Beauty does not challenge the citations on any other grounds.

We
conclude that the original safeguard notice is valid, and that when the
safeguard notice and modification at issue are read together, the modified
safeguard notice is also valid. Accordingly, the four citations are affirmed.

I.

Legal Framework

Although
an operator is usually cited for violations of mandatory safety and health
standards developed through notice and comment rulemaking pursuant to Title I
of the Mine Act, 30 U.S.C. § 811(a), Title III of the Mine Act also gives the
Secretary the authority to issue safeguards in underground coal mines to reduce
hazards associated with the transportation of men and materials. 30 U.S.C. § 874(b)
(section 314(b) of the Act).[2]
The Secretary implements this provision by authorizing an inspector to issue a
safeguard notice on a mine-by-mine basis. A safeguard notice informs the mine
operator about conduct that is mandated or prohibited. The inspector issues the
safeguard in writing and indicates a time by which the operator must provide
and subsequently maintain that safeguard. 30 C.F.R. § 75.1403-1(b). Uniform
safeguard criteria guide the mine inspector’s issuance of a safeguard as well
as its content. See 30 C.F.R. § 75.1403-2 – 75.1403-11. If the operator does not
comply with the safeguard the inspector issues a citation. 30 C.F.R. §
1403-1(b). Thus, issuances pursuant to
section 314(b) are enforceable as mine-specific mandatory standards, as an
operator may be issued a citation for failing to provide the required
safeguard. Wolf Run Mining Co., 659 F.3d 1197, 1201-02 (D.C. Cir. 2011),
aff’g, 32 FMSHRC 1228 (Oct. 2010). When challenging such a
citation, an operator may also challenge the validity of the underlying safeguard notice. Southern Ohio Coal Co., 14
FMSHRC 1, 2-4 (Jan. 1992) (SOCCO II).

The
Commission has long held that a valid 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,” and that “a narrow
construction of the terms of the safeguard and its intended reach is required.”
Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) (SOCCO I). A
narrow interpretive approach serves to balance the Secretary’s broad grant of
authority to effectively issue mine-specific mandatory standards without
resorting to normal rulemaking procedures, with the operator’s right to notice
of the conduct required of it. Id.

The
requirement to identify a “hazard” for purposes of section 314(b) is satisfied
when the safeguard identifies a hazardous condition; it need not specify a particular
harm or risk to miners. American Coal Co., 34 FMSHRC 1963,
1967-71 (Aug. 2012); Oak Grove Resources, 35 FMSHRC 2009, 2014 (July
2013). We have “consistently treated safeguards that specify hazardous
conditions and specify a remedy as valid safeguards.” 34 FMSHRC at
1969 (emphasis in original). A valid safeguard notice must identify a hazardous
condition and remedy with specificity in order to ensure that the operator has
sufficient notice as to the conduct that is prohibited or required. Id.
at 1967; see also SOCCO I, 7 FMSHRC at 512-13.

II.

Factual and Procedural Background

In
May 2003, an MSHA inspector issued Safeguard No. 7591942 to Black Beauty at its
Air Quality No. 1 Mine. The safeguard notice states:

Rib
coal and rib rock have fallen blocking the travelway along each side of the 2-A
conveyor belt (3 West/1 Right) at cross cut #17. The fallen material along the
east side of the belt has the travelway blocked for an approximate 15’
distance. Fallen material along the west side of the conveyor has the travelway
blocked for an approximate 20’-25’ distance.

This is
a Notice to Provide Safeguard(s) requiring a clear travelway at least 24 inches
wide [to] be provided on both sides of all belt conveyors. Where roof supports
are installed within 24 inches of a belt conveyor, a clear travelway of at
least 24 inches is required on the side of such support farthest from the
conveyor.

Gov. Ex. 45 (see 30
C.F.R. § 75.1403-5(g)). In August 2007, an MSHA inspector issued the following
modification:

This is
to modify the safeguard requiring a clear travelway of at least 24 inches along
both sides of all conveyor belts. The above-referenced safeguard is hereby
modified to require [ ] that the 24 inch travelway shall be clear of mud and
water.

Gov. Ex. 46.

In
2009, MSHA issued four citations relevant to this proceeding, alleging
violations of the modified safeguard notice. Citation Nos. 8415371, 8415372 and
8415373 allege failures to keep travelways free of mud and water, while Citation
No. 8415735 alleges a failure to keep a travelway clear of mud, water, rock and
coal.

Black Beauty
filed a motion before the Judge to dismiss the four citations, arguing in part
that the underlying safeguard notice and modification were invalid because they
failed to identify a hazard with specificity. The Judge denied the motion,
finding that the safeguard notice and modification did identify hazards
affecting transportation of men and materials: namely, coal and rock in the
travelway for the original issuance, mud and water accumulations in the
travelway for the modification. Order at 2-3. The Judge subsequently issued a
decision in which she reiterated the validity of the modified safeguard notice
and affirmed the four citations.[3]
33 FMSHRC at 1517, 1530-31.

Black Beauty
filed a petition for discretionary review of the Judge’s conclusion that the
safeguard notice and modification identified a hazard with sufficient
specificity. Review was granted, but briefing was stayed pending the
Commission’s decisions in American Coal Co.,  34 FMSHRC 1963 (Aug.
2012), and Oak Grove Resources, 35 FMSHRC 2009 (July 2013). Following
the issuance of those decisions, the stay of briefing was lifted.

III.

Disposition

Because
the validity of the safeguard notice and modification is a purely legal issue, we review the judge’s decision de novo. American
Coal, 34 FMSHRC at 1972.
We conclude that when the original issuance
and its modification are read in conjunction, the modified safeguard notice identifies
a hazardous condition and modified remedy with sufficient specificity to
provide the operator with notice as to the conduct that is prohibited or
required. Accordingly, we find that the original safeguard notice and its
modification are valid.

As
an initial matter, we reaffirm our holding in American Coal and Oak
Grove Resources that a notice of safeguard identifies a hazard for purposes
of section 314(b) by identifying a hazardous condition, and need not specify a
particular harm or risk to miners. 34 FMSHRC at 1969-70.

Black
Beauty argues that, although the original Safeguard No. 7591942 “arguably
describes the condition that gave rise to its issuance,” it is invalid because
it fails to also define the specific danger which the condition creates for
miners. BB Br. at 7-8. The operator concedes that its position is “contrary to
the Commission’s holding in American Coal.” BB Reply Br. at 6, n.2. Moreover,
it fails to offer any new theories that would justify reconsidering the
principle adopted therein.[4]
The failure to identify a specific risk or harm to miners that might
potentially result from the hazardous condition does not render Safeguard No.
7591942 or its modification invalid.

Likewise,
we reject Black Beauty’s alternative argument that the original safeguard
notice is invalid even under American Coal because it fails to identify
a hazardous condition. Black Beauty concedes that the issuance describes
“material blocking the travelway, rendering travel along a portion of the
conveyor impassible,” but claims that it is not a valid notice of safeguard
because it “does not identify what hazard that creates, or that the condition
was hazardous at all.” BB Br. at 9. In essence, Black Beauty again argues that
a valid safeguard notice must explicitly describe how a general condition will
potentially harm miners, and we again reject that argument as contrary to American
Coal. Safeguard No. 7591942 describes rock and coal blocking travelways and
directs that the operator maintain 24 inches of clear travelway on both sides
of all belt conveyors. It specifies a hazardous condition and a remedy. Therefore,
it is valid under American Coal.

In
addition, we are not persuaded by Black Beauty’s argument that the modification
is invalid because it fails to describe a hazardous condition. If the
modification is read in isolation, Black Beauty would be correct.[5]
However, modifications do not exist independently; they inherently require an
original to be modified. Safeguard notices and their modifications must be read
together. See, e.g., American Coal, 34 FMSHRC at 1977
(addressing a safeguard notice “as modified”); see also Mettiki Coal Corp.,
14 FMSHRC 29 (Jan. 1992). The relevant question is not whether the modification
is valid. It is whether the modified safeguard notice identifies a hazardous
condition and remedy with sufficient specificity as to provide adequate
notice as to the conduct prohibited or required. 34 FMSHRC at 1967. We find
that it does.

We
acknowledge that the modified safeguard does not identify a specific observed
condition for every specific remedy; in particular, it does not explicitly
state that an inspector observed accumulations of mud and water. However,
focusing on the broader concept of type of condition, the modified
safeguard identifies accumulations of material (such as fallen rib coal and rib
rock), and requires that travelways be kept clear of accumulations of material
(such as rib coal, rib rock, mud and water).  In other words, the modified
safeguard identifies specific conditions at the mine which obstructed a
travelway, and identifies similar conditions which

should be avoided to prevent
obstructions.[6]
When the original safeguard and modification are

read in conjunction, the
modified safeguard notice identifies a hazardous condition and remedy.[7]

As
to whether the conditions are identified with sufficient specificity, we have
previously found other safeguard notices that follow the same pattern –
identifying mine-specific examples of a problem, and then providing a more
general solution – to be valid. For example, a safeguard notice found to be
valid in American Coal stated:

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.

34 FMSHRC at 1972. The
Commission noted a similarly patterned notice in SOCCO I, 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.

34 FMSHRC at 1967, citing 7
FMSHRC at 510, 514. A safeguard can be sufficiently specific to put an operator
on notice as to the conduct required, even where the remedy is broader than the
specific conditions noted by the inspector. In the instant case, the provisions
of the modified

safeguard are sufficiently
specific to notify the operator that accumulations of material such as

rock, coal, mud and water in
sufficient quantity to block travel are prohibited in travelways along conveyor
belts.[8]

Perhaps
it would have been preferable, in pursuit of extra clarity, if a description of
the water and mud accumulations observed by the issuing inspector had been
included in the text of the modification.  However, the original condition and
modified remedy are similar enough that they can logically be read together,
and when read narrowly, they are sufficiently specific to provide notice as to
the type of accumulations prohibited by the modified safeguard, i.e., those
that prevent a clear travelway.[9]
 The notice of safeguard, as modified, is valid.

IV.

Conclusion

For
the reasons discussed above, we conclude that Safeguard No. 7591942, as
originally issued and as modified, is valid. Accordingly, Citation Nos.
8415371, 8415372, 8415373 and 8415735 are affirmed.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

Commissioners Young and
Althen, dissenting:

The
Mine Act confers upon the Secretary’s inspectors the right to issue, instantly,
safeguards to protect miners from mine-specific hazards associated with the
movement of miners or materials. However, the Commission has long recognized
the need for safeguards to articulate clearly the hazard and the means for
avoiding the articulated hazards. The amended safeguard at issue in this case
falls far short of our standards in that regard. Accordingly, we dissent from
the majority’s approval.

I.

Safeguards Have the Force of Law and Must Clearly
Impose Safety Obligations Based on Mine Specific Conditions.

In Southern
Ohio Coal Co., 7 FMSHRC 509 (Apr. 1985) (“SOCCO I”), the Commission
recognized that a safeguard is a unique form of government action. A lone
inspector on his or her own initiative unilaterally imposes a binding
obligation upon a mine operator to take specified actions. There is no
consultation between the inspector and operator; the inspector makes a wholly
discretionary decision to issue the notice in response to his or her personal
perception of a mine-specific hazard. Further, because a safeguard enforces an
interim mandatory safety standard, an inspector may cite a subsequent violation
of a safeguard as a significant and substantial violation.

Because
there is no rulemaking, as there is with traditional mandatory safety
standards, the Commission established basic requirements for valid safeguards: (1)
they must identify with specificity the nature of the hazard; (2) they must
specify the conduct required of the operator  to counteract that specified
hazard; and (3) they must be narrowly construed. Id. at 512; BethEnergy Mines, Inc.,
14 FMSHRC 17, 25 (Jan. 1992) (“[A] safeguard
must be interpreted narrowly in order to balance the Secretary’s unique
authority to require a safeguard and the operator’s right to fair notice of the
conduct required of it by the safeguard.”).

Safeguards
also must meet the legal requirements for valid safety standards: they cannot
be arbitrary and capricious and must provide fair notice of the prohibited or
required conduct. Green River Coal Co., 14
FMSHRC 43 (Jan. 1992) (finding a prohibition
against placement of timbers that obstructed travelways insufficient to address
obstructions caused by roof falls); American Coal Co., 34 FMSHRC
1963, 1967 (Aug. 2012) (citing SOCCO I, 7 FMSHRC at 512) (a notice must
be clear on the conduct required and the conditions covered by the safeguard). As
a result, there must be a sufficient nexus between hazard and remedy so the
operator receives fair notice of the specific conditions covered (hazard) and
the conduct required (remedy).

The
threshold issue before us is whether the safeguard itself, outside of the
context of a specific citation, conforms to the standards we have imposed to
ensure clarity in the law and fair notice. We would hold that it does not.

II.

The Amended Safeguard at Issue Does Not Clearly
Identify The Hazard Arising from Mine-Specific Conditions and is Unclear on the
Standard of Conduct Required by the Operator.

A
safeguard that fails to provide adequate, reasonably-understood notice of the
conditions to which it applies may not be saved by a post-hoc
rationalization that it may apply to a specific hazard that was not
contemplated or expressed in the written notice. Yet, that is the course the
Secretary urges upon us here.

Safeguard
No. 7591942 originally identified one specific
hazard – namely, a blocked travelway resulting from fallen rib coal and rock
material:

Rib coal and rib rock have fallen blocking the travelways along
each side of the 2-A conveyor belt (3
West/1 Right) at cross cut #17. The
fallen material along the east side of the belt has the travelway
blocked for an approximate 15’ distance. Fallen
material along the west side of the conveyor has the travelway blocked for an
approximate 20’-25’ distance.

In turn, the safeguard
specified remedial conduct tailored to the blocking hazard caused by fallen rib
coal and rib rock:

This is a Notice to Provide Safeguard(s) requiring a clear
travelway at least 24 inches wide[[10]]
be provided on both sides of all belt conveyors. Where roof supports are
installed within 24 inches of a belt conveyor, a clear travelway of at least 24 inches is required on the side of such
support farthest from the conveyor.

A
little more than three years later, an inspector determined that completing the
tasks required by the safeguard could expose miners to dangers of adverse roof
conditions. The inspector therefore modified the remedy specified in the
original safeguard to provide an alternative means to deal with the fallen
material:

It has been determined that action to clean up a clear travelway of 24
inches would be hazardous to the miners due to adverse roof conditions.
The above referenced safe guard [sic] is hereby modified to allow the material to remain in its present
condition provided that [the] operator installs supplementary roof support on both sides of the fall area and installs start and stop switches
and cross overs or unders on both sides of
the fall in the blocked
travelway. Red reflectors shall be placed at
each start/stop switch.

Order
Denying Respondent’s Motion to Dismiss, slip op. at 1 n.2 (Feb. 2011) (ALJ).

Nearly
a year later, on August 9, 2007, another inspector again modified the
safeguard. Once again, the specified hazard – fallen rib coal and rock blocking
the travelway – was not modified. Rather, the second modification added a
separate and new remedy to the existing safeguard, obligating the operator to
ensure that “the 24 inch travelway shall be clear of mud and water.”
Gov. Ex. 46.

Consequently,
the modified safeguard continues to describe the specific hazard as fallen rib
coal and rock material blocking a travelway. However,
the newly-prescribed remedy relates not to a blocking of the travelway by
fallen rib coal and rock but instead to water and mud. The modified safeguard
did not identify any hazard, specific or general, from mud and water. The
remedy is broad, undefined, and, taken literally, may be impossible to achieve.
These are fatal defects under the law.

A.
The Modified Safeguard is Incoherent on the Hazard and the Conduct Required by
the Operator.

The
concise, literal expression of “clear of mud and water” is “dry.” Read without
reference to a specific hazard attributable to water or mud, the new “remedy”
in the safeguard thus appears to demand something that is geologically
impossible in a typical underground coal mine. We do not conceive that MSHA
meant to go that far, but that is the problem. The safeguard does not give the
operator sufficient notice of how far it actually does go. The remedy
specified in the modification is non-specific and does not relate to fallen
material blocking the travelway. It, therefore, fails to provide sufficient
notice to the operator of its requirements.

Government
mandates enforced by civil penalties must provide clear notice of the conduct
that will result in their imposition. See Kropp Forge Co.
v. Sec’y of Labor, 657 F.2d 119, 122 (7th Cir. 1981) (refusing to impose sanctions where the standard
the regulated party allegedly violated “d[id] not provide ‘fair warning’ of
what is required or prohibited”); see
also Dravo Corp. v.
Occupational Safety and Health Review Comm’n, 613 F.2d 1227, 1232-33 (3d Cir.
1980); U.S. v. Hoechst Celanese
Corp., 128 F.3d 216, 224 (4th Cir. 1997); Diamond Roofing Co. v.
Occupational Safety and Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.
1976). Unsurprisingly, we have thus held that a safeguard must clearly specify
the operator’s duty under the law. SOCCO I, 7 FMSHRC at 512; Green River Coal Co.,
14 FMSHRC at 45 n.2.

In
this regard, identification of the specific hazard addressed by a safeguard
informs the operator of the requirements of the specified remedy in the context
of the particular mine and location in the mine. Without identification of a
specific hazard, it is impossible for a reasonable person to understand the
requirements of the specified remedy, and fair notice has not been provided.[11]

This
case perfectly illustrates the problems arising from impermissibly vague
expressions masquerading as legal “standards.” Without the contextual support
required by the law, a broad command to “keep a travelway clear of mud and
water” is virtually meaningless, because it fails to make clear the hazard
posed by water or mud at this mine and the precise remedy for
that specific hazard.[12]
Must the operator prevent “any” mud or water from being present on the
travelway, to prevent slippery conditions that might arise thereby? The
Secretary seems to believe so, and also seems to have persuaded the Judge that
this would be sufficient. In denying the operator's motion to dismiss on
grounds that the safeguard was invalid, the Judge stated that the requirement
to keep the travelway “free of mud and water” was valid because “[a] miner
should be able to travel along the belt without fear of slipping and falling.” 33
FMSHRC 1504, 1517 (June 2011). Without doubt, “slipping” is a different hazard
from the travelway blocked by fallen material set forth in the safeguard.

Thus,
the citation in this case was grounded on water that “hindered the ability to
travel,” id. at 1516, an unsatisfactorily broad description of a
yet-unspecified degree of water.[13]
Indeed, the Judge in this case found that the water was a hazard, despite
crediting operator witnesses who testified that the water was neither as deep
nor as murky as the Secretary charged. Id. at 1518. While the Judge
found that the water constituted a “hazard,” she declined to affirm the S&S
finding because the Secretary did not show that the particular violation would
be reasonably likely to lead to an injury-causing event. Id.

By
itself, this finding should be sufficient to invalidate the safeguard because
it places the conditions observed in the mine during the inspection in sharp contrast
against the conditions which prompted the original safeguard issuance and
defined the hazard. The occlusion which prompted the initial issuance of the
safeguard “blocked” the travelway for a length of 40 feet. Gov. Ex 45; slip op.
at 3. While the majority asserts that the safeguard here is “sufficiently
specific to notify the operator that accumulations of material such as rock,
coal, mud and water in sufficient quantity to block travel” are prohibited, slip
op. at 7, the record makes clear that the travelway was not “blocked,” and that
the Judge found that travel was not impeded to a degree that put miners at
significant risk of serious injury.

This
is more than a mere question of degree; it is a difference in kind. The
material is different, the nature and type of impediment are not congruent and
the type of hazard is not at all the same. Tolerating this degree of lassitude
by inspectors charged with the inception of mandatory standards is inconsistent
with the law as we have always interpreted it.

While
the majority acknowledges, as it must, that “safeguards have a specificity
requirement,” slip op. at 5 n.6, it is unable to express specifically how the
requirement to keep a travelway free and clear of mud and water relates to the
original hazard of solid material blocking a travelway. The majority must feel
a keen sense of irony in citing Ideal Cement Co., 12 FMSHRC 2409 (Nov.
1990), for the proposition that a “reasonably prudent person” will know what
the phrase means. Without itself being able to articulate its meaning, in a
case where a Commission ALJ has affirmed a finding of violation based on
conditions entirely unlike those which prompted the original safeguard, the
majority nonetheless permits issuance of citations and imposition of penalties
because some other hypothetical “reasonably prudent person” might understand
the patently ambiguous requirement to keep an inevitably wet travelway “clear
of mud and water.” In sum, the majority recognizes the fatal deficiency in the
safeguard and wholly fails in its attempted resuscitation.

B.
The Secretary has Failed to Articulate a Nexus Between the Purported Hazard and
the Suggested Remedy.

As
one might expect, when a safeguard is only vaguely suggestive of the nature of
the hazard, the operator will have difficulty discerning the relationship
between the hazard and the conduct required to ameliorate it. That is certainly
the case here, where the citing inspector and the Judge were similarly unclear
about the conditions that prompted the original safeguard, and the supposed
relationship between those conditions and the ones observed when the second
modification was issued on the day the violation was cited.

Indeed,
the second modification is silent on the conditions which led to its issuance. This
left an open invitation to cite any degree of water based solely on the
subsequent inspector’s subjective definition of “clear of mud and water.” We
decline to join the majority in this misadventure.

In
addition to the lack of clarity about the “hazard” and the interpretive
stumbling and lack of notice it has occasioned, we further note that the
safeguard is not valid because it does not establish any linkage between the
supposed hazard and the remedy. Safeguards, as we have noted, are unique, and
the Commission has thus rigorously insisted upon a clear connection between the
identified hazard and the conditions cited in the enforcement action, a
requirement that is not satisfied by the mere fact that the remedy specified in
the safeguard would abate the hazard described in the citation. See Green River Coal Co.,
14 FMSHRC at 47 (Commission refused to
enforce a safeguard that addressed a hazard of roof supports impeding travel
when an inspector applied the safeguard to accumulations of loose rock
obscuring the travelway). In asserting the importance of this relationship, we
held that a safeguard:

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.

Id. (emphasis added). As in that case, there is a
fundamental difference here between a travelway that is “blocked” by fallen
material, to the point where a permitted remedy is a diversion around the
impassable area, and a travelway that is “impeded” to an unspecified degree by
water or mud in an undefined quantity.

Nor may the
Secretary avoid the burden of demonstrating the nexus through use of a broad,
all-encompassing prohibition. See BethEnergy
Mines Inc., 14 FMSHRC at 25 (rejecting
the Judge’s reliance on a published safeguard criterion as sufficient to
establish the validity of a safeguard mandating 24 inches of clear travelway on
both sides, and remanding the issues of notice and nexus).

In both Green River and BethEnergy,
where the hazard identified in a citation differed from the hazard specified in
the safeguard, we rejected it as the basis for an enforcement action. While the
majority correctly points out that this case does not deal with a citation but
with a facial challenge, the principles established in the cited cases support
that the modified safeguard in this case is invalid due to the same failure to
identify a relationship between the original and only identified hazard in the
safeguard, and the remedy required in the modification.

Here, there is no nexus between the hazard
specified in the safeguard (fallen rib material) and the remedy prescribed in
the modification to keep the travelway free and clear of mud and water. Inevitably,
any citation for mud or water will be founded on the type of “slipping, tripping, and falling hazards” identified in
BethEnergy, supra, rather than the hazard specified in this case
in the original safeguard, i.e., fallen rib coal and rock “blocking” a travelway. Even if one were to accept that a narrowly-interpreted
safeguard might apply to mud and water “blocking” a travelway, those were not
the conditions found by the Judge in this case, and the safeguard must fail
because it was not drafted with a sufficiently close focus on the distinct
hazards created by mud and water, or with a satisfactory description of the
amount of mud and water found and the type of hazard(s) arising therefrom.

We held in American Coal that the
Secretary’s agents need not state the obvious when identifying hazards arising
from observed conditions. In this case, however, the original safeguard is
wholly unrelated to the cited conditions. The “remedy” of clearing water and mud has nothing
whatsoever to do with the specified hazard of a travelway “blocked” by fallen
material. Effectively, the modified safeguard is a
remedy without an identified hazard, and without a properly defined hazard, the
scope of the remedy cannot be properly limited in a way that facilitates
compliance.[14]

III.

Conclusion

Safeguards are site specific and are
aimed at specific hazards identified by individual inspectors. Thus, they do
not admit of broadly worded rules amounting, in effect, to a mandatory safety
standard for which rulemaking must be required. The majority decision     is a
deviation from this sound, well-established principle. We therefore dissent.

/s/ Michael G. Young

Michael
G. Young, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

[1]
Docket No. LAKE 2009-570 contains 63 citations and orders; the Judge resolved
eleven on the merits, and approved settlement of the remainder. 33 FMSHRC at
1534-36.

[2]
Section 314(b) of the Act states 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).

[3]
Citation Nos. 8415371 and 8415735 were contested on the merits. The only
defense Black Beauty raised with regard to Citation Nos. 8415372 and 8415373
was the invalidity of the safeguard. 33 FMSHRC at 1531.  

[4] Black Beauty relies on earlier Commission caselaw and
the use of the term “hazard” in MSHA’s Program Policy Manual. Both were
considered by the Commission in American Coal. The former was found to
be consistent with our holding, and the latter was found not to be persuasive.
34 FMSHRC at 1970. The ALJ decisions cited by Black Beauty are not precedential
and were decided before the issuance of American Coal.

[5]
Chairman Jordan notes that the original safeguard notice (which was prompted by
debris) directed the operator to keep a clear travelway of at least 24 inches
along both sides of all conveyor belts. She is of the view that such directive
also provided adequate notice to the operator that the travelway not be impeded
by mud and water.

[6]
The dissent states that without the additional
context provided by an observed mud  and water accumulation, it would be
impossible for a reasonable person to understand the requirements of the
safeguard. Slip op. at 10-11. We note that safeguards are written by,     and
for, those with knowledge of the relevant mine. While safeguards do have a specificity
requirement, basic industry knowledge can also provide context when
interpreting a safeguard. See, e.g., Oak Grove Resources, LLC, 35
FMSHRC 2009, 2012 (July 2013) (citing SOCCO I,   7 FMSHRC at 512 n.2)
(noting that “safeguards are written by inspectors in the field, not by a team
of lawyers,” and that “the requirement of specificity is ‘not a license for the
raising or acceptance of purely semantic arguments’”).

Moreover,
we note that if the phrase “clear of mud and water” to prevent obstructions was
contained in a mandatory standard rather than in a safeguard, there would not
be a question of lack of notice. Individual citations would be evaluated under
the Commission’s familiar “reasonably prudent person” standard stated in Ideal
Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990) and reiterated in numerous
other decisions of the Commission. We see no reason why the “reasonably prudent
person” test would not be applicable to questions of notice which arise in the
context of safeguards.

[7]
The Judge appears to have upheld the validity of
the modification by inferring that a generic mine hazard existed from the
modification’s mandate (that travelways be clear of mud and water), rather than
by looking to the original safeguard issuance for the hazard. Order at 3. The
Secretary looks outside the text to support the modification, claiming that the
operator was aware of the relevant hazardous condition because mine personnel
were present when the modification was issued. Oral Arg. Tr. 14-15. Both
methods are improper. Hazardous conditions must be in the text of the safeguard
notice, rather than inferred or established through the record. See, e.g.,
American Coal, 34 FMSHRC at 1978-79 (finding a safeguard notice
invalid where, although one could infer that the inspector observed the
conditions addressed in the remedy, those conditions were not explicitly
described). However, the Judge’s inference is harmless error. As discussed
above, the modification is properly read in conjunction with the text of the
original issuance; the Judge reached the correct conclusion regarding the
validity of the modified safeguard notice.

[8]
Whether subsequent cited accumulations are indeed sufficient to prevent a clear
travelway is a factual determination that is properly decided by the Judge. In
this case, the Judge made those determinations. 33 FMSHRC at 1517-18, 1530-31. On
appeal, Black Beauty has only challenged the facial validity of the safeguard,
not its applicability to the relevant citations. Accordingly, the fact that the
operator failed to comply with the safeguard is not in dispute. However, we
would note that a cited condition need not exactly mirror the conditions
described in the safeguard notice in order to constitute a violation. Notices
of safeguard are intended to address types of conditions and/or conduct;
limiting their application to an exact replica of the situation which led to
their issuance would defeat their purpose, as a practical matter.

[9]
This matter is distinguishable from SOCCO I,
which noted a “dissimilarity” between water accumulations described in a
citation, and solid debris described in the underlying safeguard notice. 7
FMSHRC at 513. In SOCCO I, the dissimilarity was between a citation and
the underlying safeguard; we concluded that the safeguard did not provide
notice that the cited accumulations were prohibited, and vacated the
citation. Here, only the safeguard notice is at

issue, and it was modified
specifically to provide notice that water and mud accumulations are prohibited.

In
support of its contention that a hazard of a travelway blocked by fallen
materials is not relevant to a safeguard remedy to clear the travelway of water
and mud, the dissent relies on the Commission’s finding in American Coal
that two safeguards which addressed fallen material and “water and slurry
conditions” respectively were not duplicative safeguards. Slip op. at 15 n.5,
citing 34 FMSHRC at 1975. However, the Commission’s reason for rejecting the
operator’s duplication claim was that there was a need to provide notice that
accumulated water was prohibited. 34 FMSHRC at 1975. In other words, the
holding in American Coal does not prevent a single safeguard from
addressing both types of accumulations, it simply confirms that the safeguard
must put the operator on notice that both types of accumulations are
prohibited. That is what the modification at issue accomplished.

[10]
Safeguard notices commonly require that travelways be maintained with 24 inches
of clearance, specifically identifying conditions observed in the mine
impairing travel. As we have repeatedly urged in the past, the cause of miner
safety would be much better served by the promulgation of rules proscribing
travel hazards in all mines, rather than relying on mine-by-mine safeguards.

[11]
A variety of factors are relevant to notice “including the text of a
regulation, its placement in the overall regulatory scheme, its regulatory history,
the consistency of the agency’s
enforcement, and whether MSHA has published notices informing the regulated
community with ascertainable certainty of its interpretation of the standard in
question.” DQ Fire & Explosion
Consultants, Inc., 36 FMSHRC 3083, 3088 (Dec. 2014), quoting Lodestar
Energy, Inc., 24 FMSHRC 689, 694-95 (July 2002). Here, of course, the text
of the safeguard is patently ambiguous, as it baldly requires the travelway be
“clear of mud and water.” There is no regulatory scheme or regulatory history
from which to glean meaning and no record of consistency in MSHA’s treatment of
mud and water on underground travelways. Finally, without doubt, the operator
did not have “ascertainable certainty” of the agency’s intended meaning of the
required conduct.

[12]
As the majority correctly notes, it is improper to either infer a generic,
unspecified hazard as the Judge did in this case or to look outside the text of
the safeguard itself to provide contextual support that is left unexpressed. Slip
op. at 6 n.7. However, both the Secretary and the Judge were compelled
to grasp for meaning outside of the modified safeguard because it is amorphous
and cannot be clearly understood as written.

[13]
We do not suggest that water or mud may not present a hazard to the safe travel
of miners. We merely remind the majority that the safeguard at issue in this
case, arising from conditions at this mine, did not state such hazard with
reasonable particularity, as we have always required.

[14] In American Coal, supra, the Commission
relied upon the need for a nexus between the specific hazard and specific
remedy to find separate safeguards not duplicative. Safeguard No. 4054826
specified a hazard of fallen or misplaced material such as rib rash, rock, etc.
along the sides of the beltline. The specified remedy was very broad. Safeguard
No. 4268263 specified a hazard arising from the lack of a clear travelway due
to “water and slurry conditions in an excess of 16 inches.” Essentially
embracing the theory of the majority in this case, the operator argued that the
two safeguards actually constituted one safeguard and were duplicative. The
Commission disagreed. Distinguishing a safeguard identifying a hazard of fallen
material from a safeguard dealing with a hazard of a wet travelway, the
Commission found the safeguards were not duplicative because the hazard in the
one safeguard (fallen material) was different from the hazard (wet conditions)
in the other safeguard. 34 FMSHRC at 1975. Here, the Commission takes a
directly contradictory position, finding that the original safeguard’s
identification of a hazard from fallen material is sufficient to identify a
hazard from wet conditions. The problem with the safeguard under review is not
that it sets forth two remedies but instead that the second remedy (keep
travelways clear of mud and water) is not linked to any described hazard. In American
Coal, the safeguards were not duplicative because the remedy required by
each safeguard was linked to a different hazard in each safeguard that provided
context and notice for the specific remedy. Here, the second prescribed remedy
is not linked to any described hazard and, as a result, the need for and the
scope of the remedy remains undefined.