Cumberland Coal Resources, LP

Plain-English summary

Four citations alleged that Cumberland Coal violated mine-specific safeguards requiring clear 24-inch travelways near conveyor belts and feeders. Cumberland moved for summary decision removing the S&S designations, arguing that section 104(d)(1) permits S&S treatment only for violations of mandatory health or safety standards. Judge Michael E. Zielinski held that the written safeguards were inspector-issued mine-specific requirements, not mandatory standards promulgated under Title I or enacted as substantive Title III standards. He rejected the Secretary's argument that section 314(b)'s placement in Title III converted each safeguard into a mandatory safety standard. The Judge granted the motion and amended all four gravity designations to non-S&S.

Decision snapshot

• Cited provisions: 30 C.F.R. §§ 75.1403 and 75.1403-1; 30 U.S.C. §§ 802(l), 814(d)(1), and 874(b)
• Outcome: Partial summary decision was granted and four safeguard citations were modified to non-S&S.
• Key point: The Judge treated section 314(b) as a grant of authority to issue safeguards, not as a substantive mandatory standard that makes each safeguard violation eligible for S&S treatment.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, DC 20001

202-434-9981/tele 202-434-9949/fax

December 4, 2008

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

CUMBERLAND COAL RESOURCES, LP,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. PENN 2008-318

A.C. No. 36-05018-143487-01

Mine: Cumberland

ORDER GRANTING RESPONDENT’S

MOTION FOR PARTIAL SUMMARY DECISION

This case is before me on a petition for assessment of civil penalties filed by the Secretary
of Labor against Cumberland Coal Resources, LP, pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d). The specific citations at issue, Citation Nos.
7013038, 7025471, 7025962 and 7070887, allege significant and substantial (“S&S”) violations
of notices to provide safeguards issued pursuant to the Secretary’s regulations applicable to
underground coal mines. 30 C.F.R. § 75.1403. Cumberland filed a motion for partial summary
decision challenging the findings that the violations were S&S, and the Secretary filed a response
opposing Respondent’s motion. For the reasons set forth below, I find that there exists no
genuine issue as to any material fact, and that Cumberland is entitled to summary decision as a
matter of law on the issue of whether the violations can be designated S&S.

Accordingly,
Citation Nos. 7013038, 7025471, 7025962 and 7070887 will be amended to specify that the
violations were not significant and substantial.

Facts

On October 4, 2007, a coal mine inspector for MSHA, inspected Cumberland Coal ’s
Cumberland Mine, which is a large underground mine that extracts bituminous coal in Greene
County, Pennsylvania. During the inspection, he observed that a clear travelway of at least 24
inches was not being maintained along the 8 Butt coal conveyor belt walk side from the tail piece
outby for 25 feet, and issued Citation No. 7025471, alleging a violation of Safeguard No.
7083583, which had been issued on October 17, 2003. Resp. Mot. Ex. 2. On November 5, 2007,
an inspector observed that a two foot clear walkway was not being maintained on the tight side of
the South Mains Beltline, for which Citation No. 7013038 was issued, also alleging a violation of
Safeguard No. 7083583. Resp. Mot. Ex. 1. That same day another inspector issued Citation No.
7025962, for failure to maintain a clear travelway at least 24 inches wide on both sides of the
Cumberland West section (MMU 020-0) belt feeder, in violation of Safeguard No. 7025484,
issued on October 4, 2007. Resp. Mot. Ex. 3. On December 11, 2007, an inspector observed that
Cumberland had failed to maintain a clear travelway of at least 24 inches along the walk side of
the feeder on the 029-0 mmu section, and issued Citation No. 7070887, which also alleged a
violation of Safeguard No. 7025484. Resp. Mot. Ex. 4. All citations allege that the violations
were S&S.

Cumberland timely contested the civil penalties assessed for the violations, and the
Secretary filed a petition for assessment of civil penalties. Cumberland filed an answer to the
petition, and a motion for partial summary decision on the S&S issue. The Secretary opposed the
motion.

Analysis

Cumberland Coal contends that, under section 104(d)(1) of the Act, only violations of
mandatory health and safety standards can be designated S&S and, because neither the
safeguards allegedly violated, nor section 75.1403, are mandatory standards, the violations
cannot be designated S&S.

The Secretary argues that 30 C.F.R. §75.1403 is taken directly from section 314(b) of
Title III of the Act, which grants her authority to issue safeguards. Because section 301(a) states
that: “The provisions of sections 302 through 318 of this title shall be interim mandatory safety
standards applicable to all underground coal mines,” and section 802(l) defines the term
“mandatory health or safety standard” as “the interim mandatory health or safety standards
established by titles II and III of this Act,” she contends that section 75.1403 is a mandatory
safety standard. Consequently, she asserts that the violations can properly be designated S&S,
and Cumberland Coal’s motion for partial summary decision should be denied.

Section 104(d)(1) of the Act states, in pertinent part:

If, upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions created by such violation
do not cause imminent danger, such violation is of such nature as could
significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation given to the operator
under this chapter. (emphasis added)

30 U.S.C. §814(d)(1). A “mandatory health or safety standard” is defined as “the interim
mandatory health or safety standards established by titles II and III of this Act, and the standards
promulgated pursuant to title I of this chapter.” 30 U.S.C. 802(l).

In Cyprus Emerald Res. Corp., 195 F.3d 42 (D.C. Cir. 1999), the court held that the
language of section 104(d)(1) was clear on its face, and permitted a designation of S&S only for
violations of mandatory health or safety standards. It reversed a holding by the Commission that
a violation of a Part 50 regulation could be designated S&S, even though the regulation was not a
mandatory health or safety standard. The question to be decided, therefore, is whether or not the
subject citations allege violations of mandatory health or safety standards.

Section 314 of the Act specifies a number of safety requirements for “Hoisting and
Mantrips” equipment. For example, section 314(c) provides:

(c) Hoists shall have rated capacities consistent with the loads handled and
the recommended safety factors of the ropes used. An accurate and reliable
indicator of the position of the cage, platform, skip, bucket, or cars shall be
provided.

30 U.S.C. § 874(c). Those specific requirements are mandatory safety standards pursuant to
section 301(a) of the Act.

30 U.S.C. §§ 861 and 961(b).

In addition to the specific safety requirements in sub-sections 314(a) and (c) through (f),
section 314(b) grants the Secretary broad discretion to issue safeguards in order to guard against
all hazards attendant upon haulage and transportation in coal mining. Southern Ohio Coal Co.,

7 FMSHRC 509 (Apr. 1985) (“SOCCO I”); Southern Ohio Coal Co., 14 FMSHRC 1, 8 (Jan.
1992) (“SOCCO II”); Jim Walter Resources, Inc., 7 FMSHRC 493, 496 (Apr. 1985). Section 314(b) of the Act provides:

(b) Other 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). The Secretary promulgated the current regulations addressing safeguards in
1970. 30 C.F.R. §§ 75.1403 – 75.1403-11. The initial provision, section 75.1403, repeats,
verbatim, the language of section 314(b) of the Act. Section 75-1403-1 sets forth procedures for
the issuance of safeguards and explains that sections 75-1403-2 through 75.1403-11 set out the
criteria by which MSHA inspectors are to be guided in requiring safeguards on a mine-by-mine
basis.

§ 75.1403-1 General Criteria

(a) Sections 75-1404-2 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.

(b) 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 notice shall be issued to the operator under section 104 of
the Act.

30 C.F.R. § 75.1403-1(a) and (b). Under this regulatory scheme issuance of a notice to provide
safeguard requires that an inspector: (1) determine that there exists at the mine an actual
transportation hazard not covered by a mandatory standard; (2) determine that a safeguard is
necessary to correct the hazardous condition; and (3) specify the corrective measures that the
safeguard should require. SOCCO II, 14 FMSHRC at 8.

In SOCCO I, the Commission discussed the unique nature of safeguards.

[i]t is of paramount importance to recognize the crucial difference in the rules of
interpretation applicable to mandatory standards promulgated by the Secretary and
those applicable to ‘safeguard notices’ issued by [her] inspector . . . Mandatory
standards are adopted through the notice and comment rulemaking procedures set
forth in section 101 of the Mine Act. Section 314(b) of the Mine Act, on the other
hand, grants the Secretary a unique authority to create what are, in effect,
mandatory safety standards on a mine-by-mine basis without resorting to
otherwise required rulemaking procedures. We believe that in order to effectuate
its purpose properly, the exercise of this unusually broad grant of regulatory
power must be bounded by a rule of interpretation more restrained than that
accorded promulgated standards.

SOCCO I, 7 FMSHRC at 512.

A notice of safeguard is an order to comply with a specific safety requirement within a
fixed time frame, and to continue to comply with it thereafter. As orders issued pursuant to
section 314(b) of the Act, they are enforceable under section 104(a) of the Act. Violations of a
safeguard are enforced by issuance section 104(a) citations and, upon an operator’s failure to
timely abate a violation, by issuance of withdrawal orders pursuant to section 104(b). While not
always consistent in use of language, Commission decisions have made clear that it is the
violation of the written safeguard that subjects an operator to liability for penalties and sanctions
imposed pursuant to sections 104(b) and 110 of the Act. SOCCO I, 7 FMSHRC at 513 (operator
not given sufficient notice that conditions “would violate the underlying safeguard notice’s
terms”); SOCCO II, 14 FMSHRC at 14 (on remand the judge should “determine whether the
safeguard was violated”).

The Commission, in its later-reversed Cyprus Emerald decision, discussed Mathies Coal,
the seminal case interpreting the Act’s S&S language.

It noted that the citation involved in
Mathies alleged a failure to comply with a safeguard notice, and that: “A safeguard, because it is
not issued pursuant to the procedures set forth in section 101(a) of the Mine Act, does not meet
the statutory definition of a mandatory health or safety standard.” Cyprus Emerald Res. Corp.,
20 FMSHRC 790, 808-09 n.22. (Aug. 1998). In reversing the Commission, the circuit court
made clear that regulations or other provisions that are not mandatory health or safety standards
cannot be designated S&S. The safeguards at issue in this case were issued in 2003 and 2007 by
MSHA inspectors, and are not mandatory safety standards promulgated pursuant to Title I of the
Act. Consequently, the subject citations, which allege violations of those safeguards, do not
allege violations of mandatory health or safety standards.

The Secretary argues that when Congress passed the Act of 1977 it directed that the
standards and regulations under the Federal Coal Mine Health and Safety Act of 1969 shall
remain in effect as mandatory health or safety standards under the Act of 1977 until the Secretary
of Labor promulgates new or revised mandatory standards. As such, because no new or revised
standards were issued, section 75.1403 remains in effect as a mandatory safety standard. Sec’y
Resp. at 4. The Secretary further argues that because section 314(b) of the Act, pursuant to
which the safeguards were issued, is included in Title III, which establishes mandatory safety
standards, that it is a mandatory safety standard.

Neither section 75.1403, nor section 314(b) of the Act, establish mandatory standards that
could be violated by a mine operator. Section 314(b), as previously noted, is a grant of
regulatory authority to the Secretary. To hold that a specific written safeguard is a mandatory
safety standard, because the grant of regulatory authority to issue it is contained in Title III of the
Act, would impermissibly elevate form over substance.

As the Commission observed in its
Cyprus Emerald decision, safeguards are not mandatory health or safety standards. Regardless of
the regulatory or statutory provision referenced in the citation, the actual violation alleged is that
the operator failed to comply with a notice of safeguard issued by an MSHA inspector.

The Secretary argues that holding that safeguard violations cannot be S&S would deprive
the Secretary of an important enforcement tool, and would be at odds with Congress’ intent to
create a flexible mine-specific enforcement system responsive to the unique hazards related to
mine transportation.

The same argument was made, and rejected, in Cyprus Emerald, where the
court observed that section 107(a) imminent danger withdrawal orders, section 104(a) citations
and section 110 penalties provide “adequate” means of enforcement.

195 F.3d at 46.
Withdrawal orders, issued pursuant to section 104(b), also provide a powerful tool to ensure that
any violation of a safeguard is promptly remedied.

The Secretary also argues that any ambiguity in the statute must be resolved by according
deference to her interpretation. However, as in Cyprus Emerald, the argument is rejected,
because the statutory language is not ambiguous. That section 314(b) is contained in Title III of
the Act does not alter its fundamental nature, and transform the grant of regulatory authority into
a mandatory safety standard. To the extent that ambiguity could be found, the Secretary’s
attempted transformation of section 314(b) into a mandatory safety standard would be
unreasonable.

As noted above, the actual violations alleged in the citations are that Cumberland Coal
failed to comply with specific notices of safeguard issued by MSHA inspectors, not that it failed
to comply with a regulatory provision. Therefore, they do not allege violations of mandatory
safety standards, and they cannot be designated S&S.

ORDER

Based upon the foregoing, the Respondent’s Motion for Partial Summary Decision is
GRANTED, and the gravity designations of Citation Nos. 7013038, 7025471, 7025962 and
7070887 are AMENDED to “non-significant and substantial.”

Michael E. Zielinski

Administrative Law Judge

Distribution:

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty
Avenue, Pittsburgh, PA 15222

Gayle M. Green, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,
Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

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