Rosebud Mining Co. v. Secretary of Labor

Plain-English summary

Rosebud proposed sealing an interconnected mine area with three seals at one location and a fourth seal 2,600 feet away and 123 feet lower, but planned a water drain only at the fourth seal. Judge Janet G. Harner held that the phrase "set of seals" in the drainage rule can include a single seal when read in the regulation's safety context. Because a roof or rib fall could prevent water from reaching the lower drain and allow accumulation behind the other seals, the district manager reasonably rejected the plan. The judge granted summary decision to the Secretary, sustained the technical citation for implementing an unapproved plan, and assessed $100.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.337(h) and 75.370(d)
• Outcome: Rosebud's motion was denied, the Secretary's summary-decision motion was granted, and the $100 citation was sustained.
• Key point: A single seal may be a "set of seals" for drainage purposes when treating it otherwise would undermine the protective purpose of the sealing rules.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

ROSEBUD
MINING CO.,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

ROSEBUD
MINING CO.,

Respondent.

CONTEST
PROCEEDING

Docket
No. PENN 2015-268-R

Citation
No. 7032005; 07/06/2015

Mine:
Brush Valley

Mine
ID: 36-09437

CIVIL
PENALTY PROCEEDING

Docket
No. PENN 2015-318

A.C.
No. 36-09437-388936

Mine:
Brush Valley

ORDER DENYING
RESPONDENT’S MOTION FOR SUMMARY DECISION

ORDER GRANTING
SECRETARY’S MOTION FOR SUMMARY DECISION

ORDER TO PAY

Before:
Judge Harner

On September 22, 2015, Rosebud Mining
Company (“Contestant” or “RMC”) filed with the undersigned a Motion for Summary
Decision in contest case PENN 2015-268-R. This docket includes one citation
(No. 7032005) for a violation of 30 C.F.R. §75.370(d), which prohibits the
implementation of a ventilation plan before it is approved by the District
Manager.[1]

The
citation is in the nature of a technical citation intended to bring the matter
before a judge, and was assessed as No Likelihood, No Lost Workdays,
Non-S&S, No Negligence, 0 Persons Affected, with a civil penalty of $100.00.
The Secretary filed, on October 14, 2015, a motion requesting that summary decision
be denied to the Contestant, and instead be ruled in favor of the Secretary.  For
the following reasons, I deny the Contestant’s Motion for Summary Decision and grant
the Secretary’s Motion for Summary Decision.

Undisputed Facts

Both parties have stipulated that there
are no material facts at issue in this case. The Contestant submitted a list of
“Proposed Facts,” of which the Secretary agreed with all but a few. I find the
several facts over which there are disagreements to constitute either
conclusions, speculative, or restatements of regulatory requirements. The
mutually agreed-upon proposed facts are as follows:

1)              
Rosebud
Mining Company's (RMC) Brush Valley Mine is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977 ("The Act").

2)              
The
Administrative Law Judge has jurisdiction to hear the contest of the penalties
and citations at issue here.

3)              
Citation
No. 7032005 was properly served by a duly authorized representative of the Department
of Labor upon an agent of Rosebud on the date and place indicated therein.

4)              
Rosebud
Mining Company owns and operates the Brush Valley Mine.

5)              
The
Brush Valley Mine accesses the Lower Kittanning coal seam via two slope
entries.

6)              
The
Brush Valley Mine utilizes two continuous miner sections to extract coal using
the room and pillar method.

7)              
Approved
seals are utilized to seal off (isolate) worked out areas from the active mine workings.

8)              
Seal
Plans are developed by the Operator and submitted to MSHA for approval. If approved,
the seal plan is incorporated into the mine's ventilation plan.

9)              
RMC
prepared a plan dated March 6, 2015, to seal the Bl Butt at Brush Valley Mine
(36-0943 7).

10)          
A
decision letter from District Manager Thomas E. Light dated April 9, 2015,
stated that the proposed plan has been reviewed and cannot be approved because
(1) "The review revealed that the Bl Butt is to be sealed with two sets
of seals. " and (2) "The set of seals identified as "#1,

2 & #3" does not meet the requirements of 30 CFR 75.337(h)."

11)          
MSHA
and RMC held a meeting on April 30, 2015, to discuss the seal plan. The issues with
the seal plan were not resolved and RMC asked for a technical citation to be
issued so the plan issues could be resolved.

12)          
Citation

7032005 issued on July 6, 2015, and states "The proposed plan did not

include provisions for installing a water drainage system in each set of
seals."

13)          
Four
seals must be constructed to isolate the Bl Butt from the remaining active
workings of Brush Valley Mine (i.e., create a BI Butt sealed area).

a.       The BI Butt
sealed area comprises a series of entries that are interconnected.

b.      There is no
barrier within the B1 Butt sealed area that separates entries behind Seals# 1-3
from entries behind Seal #4.

c.       Construction of
seals # 1-3 alone does not create a sealed area.

d.      Construction of
seal #4 alone does not create a sealed area.

14)          
Maps/drawings
submitted with the BI Butt seal plan designate areas on the perimeter of the Bl
Butt sealed area where mining is prohibited; these mining limits ensure that barriers
of sufficient size will be established as mining proceeds adjacent to the
sealed area. These minimum barrier sizes are adequate and consistent with those
determined using customary engineering design procedures.

a.       Seals # 1-4 in conjunction
with established barrier pillars effectively isolate the B1 Butt sealed area
from the remaining active workings at Brush Valley Mine.

15)          
Criteria
pertaining to drainage systems in mine seals are addressed in 30 CFR §75.337(h)
and in MSHA approved seal installation guidelines (developed under
§75.335(b)(l)(i)), MSHA Approval Number: 102M-02.1 120 psi ORICA I MAIN LINE
TEKSEAL:

a.       30 CFR
§75.337(h) Water drainage system. For each set of seals constructed after
April 18, 2008, the seal at the lowest elevation shall have a corrosion resistant,
non-metallic water drainage system. Seals shall not impound water or slurry.
Water or slurry shall not accumulate within the sealed area to any depth that
can adversely affect a seal.

b.      30 CFR
§75.335(b)(l) An engineering design application shall - (i) Address
gas sampling pipes, water drainage systems, methods to reduce air leakage,
pressure-time curve, fire resistance characteristics, flame spread index, entry
size, engineering design and analysis, elasticity of design, material
properties, construction specifications, quality control, design references,
and other information related to seal construction.

c.       Page 9 of the
Seal Installation Guidelines for the Orica Main Line Tekseal developed per 30
CFR §75.335(b)(l) states that "A water drainage system must be
installed during seal construction in the lowest elevation seal(s) of the set.
This seal is not designed to impound water, other than to a minimal, unavoidable
depth. The actual size and number of pipes must be determined by a CPE
(certifying professional engineer) based on the anticipated maximum flow rate
at the seal location. "

16)          
The
proposed water trap is located at the #4 seal which is at the lowest elevation
of all of the proposed Bl-Butt seals.

17)          
All
seals must be examined on a weekly basis.

18)          
All
water traps must be examined (weekly) to make sure they are functioning
properly.

19)          
MSHA
District 2 Manager, Mr. Light was supplied with all information relied on as exhibits.

Contestant’s
Motion for Summary Decision, 1-3; Secretary’s Motion for Summary Decision,
4-5.[2]
In addition to the stipulated facts, the parties each submitted affidavits and
documentation supporting their positions.

Summary Decision
Standard

The Court may grant summary decision
where the “entire record…shows: (1) That there is no genuine issue as to any
material fact; and (2) That the moving party is entitled to summary decision as
a matter of law.” 29 C.F.R. §2700.67(b); see also UMWA, Local 2368 v. Jim
Walter Res., Inc., 24 FMSHRC 797, 799 (July 2002); Energy West Mining,
17 FMSHRC 1313, 1316 (Aug. 1995) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986), which interpreted Fed.R.Civ.P. 56). The Commission has
analogized its Rule 67 to Federal Rule of Civil Procedure 56, which authorizes
summary judgments upon a proper showing of a lack of a genuine, triable issue
of material fact. Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan.
2007). A material fact is “a fact that is significant or essential to the issue
or matter at hand.” Black's Law Dictionary (9th ed. 2009, fact). “There
is a genuine issue of material fact if the nonmoving party has produced
evidence such that a reasonable factfinder could return a verdict in its
favor.” Greenberg v. Bellsouth Telecommunications, Inc., 498 F.3d 1258,
1263 (11th Cir. 2007)(citation omitted). The court must evaluate
the evidence “‘in the light most favorable to … the party opposing the motion.”
Hanson Aggregates, 29 FMSHRC at 9. Any inferences drawn “from the
underlying facts contained in [the] materials [supporting the motion] must be
viewed in the light most favorable to the party opposing the motion.” Id.
Though the moving party bears the initial burden of informing the court of the
basis for its motion, it is not required to negate the nonmoving party’s
claims. Celotex, 477 U.S. at 323. “When the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there
is some metaphysical doubt as to the material facts .... Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’” Scott v. Harris, 550 U.S.
372, 380 (2007) (citation omitted).

Analysis

At issue in this case is the definition
of the phrase “set of seals” in 30 C.F.R. §75.337(h), and whether the District
Manager abused his discretion when he denied Rosebud’s March 06, 2015 seal
plan. In the decision letter, the District Manager explained that §75.337(h)
Seals #1-3 and Seal #4 are separate “sets of seals” such that each requires a
water trap. The Contestant argues that the phrase, “set of seals,” by
definition implies more than one seal such that Seal #4 cannot constitute a
“set of seals” that requires a water trap.

Section 75.337(h) (Water Drainage
System) of the Regulations states:

For each set of seals constructed after
April 18, 2008, the seal at the lowest elevation shall have a
corrosion-resistant, non-metallic water drainage system. Seals shall not
impound water or slurry. Water or slurry shall not accumulate within the sealed
area to any depth that can adversely affect a seal.

30
C.F.R. § 75.337(h).

The
Contestant grounds its argument primarily in the Merriam Webster Dictionary
definition of “set,” as “a number of things of the same kind that belong or are
used together.” Using that definition, the Respondent argues that the
Secretary’s interpretation of the regulation would lead to an absurd result. Furthermore,
it offers that if the term “set” is ambiguous, the Secretary’s interpretation should
not be granted deference because “it is not logically consistent with the
language of the regulation and it serves no permissible regulatory function.” CMSD
at 7. Accordingly, the Contestant moves this court to find that the District
Manger abused his discretion in denying the seal plan.

Alternately, the Secretary argues that
though the term “set of seals” is not defined in the Act or Regulations, the
plain language is clear when read in context. The Secretary rebuts the
Contestant’s appeal to the dictionary by nothing that the mathematical and
technical definition of “set” may contain a single unit.[3]
Furthermore, single seals do occur in mines, and the Contestant’s reading of
the Regulation would exempt them from the requirements of Section 75.337(h). Beyond
dictionary definitions, the Secretary argues that the District Manager fully
considered the details of the plan and he followed MSHA’s reasonable
interpretation of the Regulation in denying the plan.

Because the issue presented concerns
both the agency interpretation of the Regulation and the District Manager’s
denial of the Plan, there are two standards of review that must be applied.
First, in determining the proper interpretation of “set of seals” in the
Regulations, the agency’s interpretation is given “controlling weight unless it
is plainly erroneous or inconsistent with the regulation.” Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); See Also Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994). This requires
an analysis of whether the Regulation’s plain meaning is clear or ambiguous,
and if ambiguous whether the agency’s interpretation is unreasonable. Following
this analysis, it must next be determined whether the District Manager abused
his discretion in denying the plan. Prairie State

Generating
Co. LLC v. Sec’y of Labor, MSHA, 2013 WL 3947974, aff’d, 792 F.3d
82 (D.C. Cir. 2015). An abuse of discretion occurs where the District Manager’s
actions are arbitrary or capricious. Mach Mining, LLC v. Sec’y of Labor,
MSHA, 34 FMSHRC 1784 (Aug. 2012), aff’d 728 F.3d 643 (7th
Cir. 2013), cert. den. No. 13-645, 2014 WL 1515720 (Apr. 21, 2014); Twentymile
Coal Co. v. Sec’y of Labor, MSHA, 30 FMSHRC 736 (Aug. 29, 2008). This
standard simply requires the agency to show that the District Manager made “a
full appraisal of the relevant and available facts, and is reasonable in
drawing conclusions.”[4]
Prairie State Generating, 2013 WL at n. 6.

Applying
these standards of review, it is clear that the Contestant’s arguments fail for
several reasons. First, I find Contestant’s appeal to Merriam Webster to be a
damp squib. The Contestant provides one definition of one word in the
regulations, and announces that it is “evident” that a set cannot include one
element, and any alternate interpretation would “result in an absurd result.”

However, the phrase “set of seals” has
no such singular definition. When viewed in the context of the Regulations and
the purpose of §76.337(h), it is clear that the Contestant’s reading is unnecessarily
and artificially narrow. Such a reading runs counter to the general rule that
statutes and regulations intended to protect individuals’ health and safety
must be interpreted in a broad manner to effectuate their goals. See Rag
Shoshone Coal Corp. v. Sec’y of Labor, MSHA, 23 FMSHRC 407, 422 (Apr. 9,
2001) (ALJ) (citing cases for this proposition). Appealing to dictionaries—from
Merriam Webster to the Oxford English Dictionary—simply shows that a “set” may contain
a number of elements, a single element, or no elements.

Words are written in
context, and they must be read in context. Mach Mining, LLC v. Sec’y of
Labor, MSHA, 728 F.3d 643, 647 (7th Cir. 2013) (“The meaning—or
ambiguity—of certain words or phrases may only become evident when placed in
context. It is a ‘fundamental canon of statutory construction that the words of
a statute must be read in their context and with a view to their place in the
overall statutory scheme.’” quoting Davis v. Michigan Dep't of
Treasury, 489 U.S. 803, 809 (1989)). Sections 75.334-75.337 clearly
concern the sealing off of areas to isolate any problems that occur in those
areas. Section 75.337(h) fits this general plan by preventing water and slurry
accumulations. See Final Rule and Commentary, Sealing of
Abandoned Areas,
73 FR 21182-01 (April 18, 2008). The Contestant’s argument that the required
water drainage systems would only be necessary for multiple seals makes little
sense in light of the regulation and its context. Water and slurry could
accumulate at one seal just as they could accumulate at multiple seals. Therefore, the
plain meaning of the Regulation clearly includes a single seal. Such a reading as
urged by the Contestant would exempt single seals not only from §75.337(h), but
also §75.364(c)(3) (concerning the testing of methane) and §75.336(a)(iii)
(concerning the monitoring of atmosphere behind a seal). Declaration of Stephen

G. Sawyer, Jr., Sec. Ex-3, ¶

8. There is no conceivable reason why MSHA would have intended for water and
   methane to be contained in very specific ways for multiple seals, but not for
   singular seals. The clear intent of these regulations is to keep miners safe,
   and an exemption for single seals would not serve this purpose. Therefore, I
   find that the phrase “set of seals” can mean one seal for purposes of the
   regulation.

Based on the stipulated facts it appears
that the District Manager, Thomas E. Light, had a reasonable factual and legal
basis to conclude that the Contestant’s plan violated §75.337(h). The District
Manager was supplied with all relevant information regarding the seals. Stip.

19. He considered the fact that Seals #1-3 are within 50 feet of each other. Declaration
    of Thomas E. Light, Sec. Ex.-1, ¶ 9. Seal #4 is located approximately 2,600
    feet from Seals #1-3, and this distance is occupied by an uninterrupted barrier
    of coal that runs along the B Mains. Id. at ¶¶ 9-10. Furthermore, Seal

4 is 123 feet lower than Seals #1-3. Att. F-1. The District Manager was

concerned that a roof or rib fall could block water from reaching Seal #4,
thereby allowing water to accumulate behind Seals #1-3. Id. at ¶ 11.

Furthermore, the District Manager also
consulted with staff who were assigned to review the proposed plan in light of
the conditions at the mine. Id. at ¶ 14. Staff such as Supervisory
Specialist Jeremy Williams and Civil Engineer Stephen Sawyer each reviewed the
proposed plans and concluded that they did not comply with the regulations. Declaration
of Jeremy S. Williams, Sec. Ex-2; Declaration of Stephen G. Sawyer, Jr.,
Sec. Ex-3. Specifically Williams was concerned not only with the possibility of
a roof or rib fall, but also with the effect on methane readings under
§75.364(c)(3) of not having separate water traps at Seals #1-3 and at #4. Declaration
of Jeremy S. Williams, Sec. Ex-2, ¶¶ 13-19. Sawyer reiterated these
concerns and emphasized that the proposed plan would have an adverse effect on
barometric pressure and methane testing. Declaration of Stephen G. Sawyer,
Jr., Sec. Ex-3.

The District Manager communicated his
concerns to the Contestant. Declaration of Thomas E. Light, Sec. Ex.-1,
¶ 12. He considered all the information submitted, as well as MSHA guidance
regarding seals, and drew factual conclusions based on his knowledge and
experience. Declaration of Thomas E. Light, Sec. Ex.-1, ¶¶ 25-26. In
rejecting the proposed plan, he stated that the information had been reviewed,
and “the review revealed that the B1 Butt is to be sealed with two sets of
seals. The set of seals identified as ‘#1, #2 & 3’ does not meet the requirements
of 30 C.F.R. 75.337(h).” Stip. 10; Resp. Ex-B.

The stipulations and documents show that
the District Manager fully considered the relevant and available facts and drew
reasonable conclusions based on the regulations, MSHA guidelines, and his
experience and knowledge. Therefore, I find that he did not abuse his
discretion.

Having found that the District Manager
did not abuse his discretion in rejecting the proposed plan on the basis that
it did not comply with §75.337(h), I find that Contestant violated §75.370(d)
by taking steps to implement the plan. Wherefore, the Secretary’s Motion for
Summary Decision is GRANTED, the Contestant’s Motion for Summary
Decision is DENIED, and Rosebud Mining Co., is hereby ORDERED to
pay the Secretary of Labor the sum of $100.00 within 30 days of the date of
this Order.[5]

/s/ Janet G. Harner

Janet
G. Harner

Administrative
Law Judge

Distribution:

Jordana
L. Greenwald, Esq., U.S. Dept. of Labor, MSHA, 170 S. Independence Mall West,
The Curtis Center, Suite 630E, Philadelphia, PA 19106

Benjamin
E. Stock, Esq., Rosebud Mining Co., 301 Market St., Kittanning, PA 16201

[1] The full text
of the Regulation is as follows: “No proposed ventilation plan shall be
implemented before it is approved by the district manager. Any intentional
change to the ventilation system that alters the main air current or any split
of the main air current in a manner that could materially affect the safety and
health of the miners, or any change to the information required in § 75.371
shall be submitted to and approved by the district manager before
implementation.” 30 C.F.R. § 75.370.

[2] Joint
Stipulations will hereinafter be cited as Stip., followed by the stipulation
number. The Contestant’s Motion will be cited as CMSD, followed by page number,
and the Secretary’s Motion will be cited as SMSD, followed by a page number.

[3] Indeed,
according to the Oxford English Dictionary, which contains a more complete
entry for “set” than Merriam Webster, the term may refer to a number of
elements, a single element, or no elements. Though not particularly relevant
for the instant inquiry, a “set” may have zero elements contained within it.
"set, n.2." OED Online. Oxford University Press, December
2015. Web. 8 March 2016. See Also A. Shen & N.K. Vershchagin, Basic Set
Theory, American Mathematical Society (2000), for a full definition,
replete with logic formulas, of “sets.”

[4] The Commission
has explained that “this is an appropriately deferential standard, as judges
(as well as Commissioners) are not always best-equipped to decide technical
issues regarding ventilation and roof control. They are instead charged with
deciding whether the district manager has made a fair and informed suitability
determination.” Prairie State Generating Co. LLC v. Sec’y of Labor, MSHA,
2013 WL 3947974, at n. 6, aff’d, 792 F.3d 82 (D.C. Cir. 2015).

[5] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390