Southern Ohio Coal Company

Plain-English summary

Southern Ohio Coal challenged a citation based on a notice requiring at least 36 inches of combined side clearance for rubber-tired haulage equipment at its underground Meigs No. 2 Mine. The Commission held that a safeguard must be based on the inspector's judgment about specific conditions at the mine, even when the notice follows a published safeguard criterion. It vacated the judge's ruling that the safeguard was valid and remanded for findings on whether the notice was based on mine-specific conditions and whether the operator violated a valid safeguard. The Commission did not decide the ultimate validity of the citation.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.1403, 30 C.F.R. § 75.1403-10(h)
• Outcome: The judge's decision was vacated and the case was remanded for further findings.
• Key point: A published safeguard criterion does not by itself make a mine-specific safeguard valid.

Full text (FMSHRC public release)

May 21, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. LAKE 90-53

SOUTHERN OHIO COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
presents the issue of whether a notice to provide safeguards issued pursuant
to 30 C.F.R. § 75.1403 is affected by the fact that it is patterned after
30 C.F.R. § 75.1403-10(h), a promulgated safeguard criterion.(Footnote 1)
Commission

1 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 30 U.S.C.
§ 874(b)
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary [of Labor],
to minimize hazards with respect to transportation of
men and materials shall be provided.
30 C.F.R. § 75.1403-1 sets forth general provisions regarding "criteria"
by which authorized representatives are guided in requiring safeguards.
Section 75.1403-1(a) provides:
Sections 75.1403-2 through 75.1403-11 set out
the criteria by which an authorized representative of
the Secretary will be guided in requiring other
safeguards on a mine-by-mine basis under § 75.1403.
Other safeguards may be required.
The procedures by which an authorized representative of the Secretary
may issue a citation pursuant to section 75.1403 are described in 30 C.F.R.
§ 75.1403-1(b)

Administrative Law Judge James A. Broderick determined that the subject notice
to provide safeguards was valid because it was based on a published safeguard
criterion. 13 FMSHRC 40, 44 (January 1991)(ALJ). The judge also determined

that SOCCO violated the safeguard but that the violation was not of a
significant and substantial nature. 13 FMSHRC at 44-45.
We apply herein the principles recently announced in our decisions in
Southern Ohio Coal Co., 14 FMSHRC 1 (January 1992)("SOCCO") and
BethEnergy
Mines, Inc., 14 FMSHRC 17 (January 1992)("BethEnergy") concerning the
Secretary's authority to issue safeguards. For the reasons explained below,
we vacate the judge's decision and remand this case for further proceedings.
I.
Factual Background and Procedural History
On March 31, 1989, Patrick McMahon, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), issued a notice to
provide safeguards to SOCCO at its Meigs No. 2 Mine, an underground coal mine
in Meigs County, Ohio. The notice 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.
Gov. Exh. 2.

The authorized representative of the Secretary
shall in writing advise the operator of a specific
safeguard which is required pursuant to § 75.1403 and
shall fix a time in which the operator shall provide
and thereafter maintain such safeguard. If the
safeguard is not provided within the time fixed and if
it is not maintained thereafter, a [citation] shall be
issued to the operator pursuant to section 104 of the
Act.
30 C.F.R. § 75.1403-10 is entitled "Criteria-Haulage; general" and section
75.1403-10(h) provides:
A total of at least 36 inches of unobstructed
side clearance (both sides combined) should be
provided for all rubber-tired haulage equipment where
such equipment is used.

MSHA Inspector McMahon conducted a regular inspection at the Meigs No. 2
Mine on January 5, 1990. As he walked up the track entry in the 001 section,
he observed a rubber-tired scoop tractor parked between the coal rib and
track-mounted supply cars. The inspector determined that the distance between

the scoop tractor's operating compartment and the coal rib was 24 inches and
that the distance between the scoop tractor and the supply car was four
inches. Based on his observations, Inspector McMahon issued a citation,
pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging a
violation of the safeguard notice. The citation states, in pertinent part:
Only 28 inches of continuous clearance was
provided for the company no. 5050 scoop being operated
along the 15L1NW (mmu no. 014-0) supply track. The
clearance on the operator's side was 24 inches and
between the contactor compartment and the rock dust
supply car was 4 inches. A Notice to Provide
Safeguards has previously been issued requiring a
minimum total clearance (both sides) along mobile
equipment roadways of 36 inches.
Gov. Exh 1. Inspector McMahon designated the alleged violation to be of a
significant and substantial nature.
SOCCO challenged the safeguard notice and the citation on the basis that
the safeguard notice was directed at hazards that are of a general nature
rather than hazards that specifically relate to the conditions at the Meigs
No. 2 Mine. In his decision, the judge stated that he agreed with the
reasoning of Judge Fauver in BethEnergy Mines, Inc., 12 FMSHRC 761 (April
1990)(ALJ). 13 FMSHRC at 43-44. In that decision, Judge Fauver concluded
that "if an inspector's safeguard notice is based on a published criterion (in
30 C.F.R. § 75.1403-2 through 75.1403-11), using the same or substantially
the same language as the criterion, then ... the safeguard is valid even if
the hazard is of a general rather than a mine-specific nature..."
12 FMSHRC at 769. Judge Fauver relied upon United Mine Workers of America
v.
Dole, 870 F.2d 662, 672 (D.C. Cir. 1989). In the present case, Judge
Broderick concluded that "incorporating published criteria in a safeguard
notice, makes it in effect a mandatory safety standard." 13 FMSHRC at 44. He
held that the notice to provide safeguards is valid because it "cited and
tracked the criterion in 30 C.F.R. § 75.1403-10(h)." Id. He also determined
that SOCCO violated the safeguard and affirmed the citation. Id.
The Commission granted SOCCO's Petition for Discretionary Review.
Briefing was stayed until after the Commission issued its decisions in SOCCO
and BethEnergy.

II.
Disposition of Issues
The central issue in this case is the validity of the underlying
safeguard. In its recent decision in SOCCO, the Commission addressed the
extent of the Secretary's authority to issue safeguards under section 314(b)
of the Mine Act. 30 U.S.C. § 874(b) (see n. 1 supra). We reviewed the text
and legislative history of that section and reaffirmed the Commission's view,

first expressed in Southern Ohio Coal Co., 7 FMSHRC 509, 512 (April 1985)
("SOCCO I"), that section 314(b) is an unusually broad grant to the Secretary
of regulatory authority, permitting her to issue, on a mine-by-mine basis,
what are in effect mandatory standards dealing with transportation hazards.
14 FMSHRC at 5-8.
The Commission rejected the proposition that a notice to provide
safeguards is invalid if it addresses a hazard that exists in a significant
number of mines. 14 FMSHRC at 8-10. We noted the considerable authority of
the Secretary to determine what should properly be formulated as mandatory
standards, and we held that the rulemaking provisions of the Mine Act,
sections 101 and 301, do not circumscribe the Secretary's authority to issue
safeguards under section 314(b). 14 FMSHRC at 10-12. Rather, we held that a
safeguard may properly be issued to deal with commonly encountered
transportation hazards, provided it is based on a determination by the
inspector of a specific transportation hazard existing at a particular mine.
Id. We made it clear that a safeguard may not properly be issued by rote
application of general MSHA policies, irrespective of the specific conditions
at a given mine. 14 FMSHRC at 12. Finally, we allocated to the Secretary the
burden of proving that a safeguard was issued on the basis of the specific
conditions at a particular mine. 14 FMSHRC at 13-14.
In BethEnergy, the Commission concluded that the validity of a safeguard
is not affected by the fact that it is based on a promulgated criterion in
section 75.1403, and that the principles with respect to roof control plan
criteria set forth in the D.C. Circuit's decision in Dole are not relevant to
cases involving safeguards. 14 FMSHRC at 22-24. For the reasons set forth in
BethEnergy, we hold that a safeguard must be based on the specific conditions
at a mine, regardless of whether the safeguard is patterned after a
promulgated criterion, and that an otherwise invalid safeguard is not made
valid simply because it is based on a promulgated criterion.
In this case, Judge Broderick adopted Judge Fauver's reasoning in
BethEnergy and held that the safeguard was valid. In BethEnergy, the
Commission rejected Judge Fauver's view that a safeguard is valid merely
because it is based on a published safeguard criterion. Thus, Judge
Broderick's decision in the present case is not consistent with the framework
set forth in the Commission's SOCCO and BethEnergy decisions.

III.
Conclusion
For the reasons set forth above, we vacate the judge's decision that the
safeguard is valid and remand this case for further consideration. The judge
should set forth his findings and conclusions as to whether the Secretary
proved that the safeguard was based on the judgment of the inspector as to the
specific conditions at the Meigs No. 2 Mine and on the inspector's
determination that a transportation hazard existed that was to be remedied by
the action prescribed in the safeguard. Taking into consideration the

principles announced in SOCCO I, the judge should determine whether the
safeguard notice "identif[ied] with specificity the nature of the hazard at
which it [was] directed and the conduct required of the operator to remedy
such hazard." 7 FMSHRC at 512. If he finds the safeguard to have been
validly issued, he should reevaluate whether SOCCO violated the safeguard.
We reiterate here our conclusion in SOCCO: "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." 14 FMSHRC at 16.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner