Secretary of Labor v. Wake Stone Corporation

Plain-English summary

An MSHA inspector found that service horns on a Wake Stone excavator and dozer did not work during pre-operational examinations conducted immediately before the equipment inspection. An ALJ vacated the citations because the checks found the defects before the machines were operated and he believed liability would discourage thorough examinations. The Commission reversed, holding that section 56.14132(a) requires warning devices to remain functional continuously unless the equipment is removed from service. The separate pre-operational inspection rule does not qualify that maintenance duty, and Mine Act liability does not depend on operator fault. Because the untagged machines were capable of operation and parked in normal production areas, they were in use for purposes of the standard, and the case was remanded for penalties.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14100(a) and 56.14132(a)
• Outcome: The ALJ's vacatur of both horn citations was reversed, and the case was remanded for penalty assessment.
• Key point: Finding a defect during a required pre-use check does not negate a separate continuous-maintenance violation when the equipment has not been removed from service.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 18, 2014

SECRETARY OF
LABOR,

MINE SAFETY
AND HEALTH

ADMINISTRATION
(MSHA)

v.

WAKE STONE
CORPORATION

Docket
No. SE 2010-95-M                                

A.C.
No. 31-02071-197617

Before: Jordan, Chairman; Young, Cohen, Nakamura,
Althen, Commissioners

DECISION

BY THE COMMISSION:

This case, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012), involves citations issued by
the Secretary of Labor because horns on two of the mine operator’s vehicles did
not work. The regulation relied on by the Secretary states that horns shall be
maintained in functional condition.[1]
However, because the failures were
discovered in pre-operational examinations that the mine supervisor insisted on
conducting before the Secretary’s inspector started his inspection, the
Administrative Law Judge vacated the citations. 33 FMSHRC 1205, 1206-08 (May
2011) (ALJ). The Secretary filed a petition for discretionary review
challenging the Judge’s ruling, and we granted that petition.           

Based on the plain meaning of the regulation, relevant
Commission precedent, and the safety-promoting purposes of the Mine Act, we conclude
that the Judge’s interpretation is erroneous. Accordingly, we reverse his
decision regarding each citation, and remand for assessment of penalties.

I.

Factual and Procedural Background

Wake
Stone operates a crushed stone quarry in Battleboro, North Carolina. On July
14, 2009, an inspector from the Mine Safety and Health Administration (“MSHA”) conducted
an inspection of the quarry. He was accompanied by quarry Superintendent Chris
Pons. During the course of the inspection, the inspector asked to examine a Caterpillar
345 B excavator and a Komatsu D65Px dozer. Although neither piece of equipment had
been in operation during the shift, the two pieces of equipment were not tagged
out and were parked in production areas. Superintendent Pons insisted that the
vehicles be taken through the pre-operational examination required under section
56.14100(a) before being operated for the inspection.[2]
The MSHA inspector acquiesced to Pons’ demand. 33 FMSHRC at 1205; see also
S. Br. at 1.

During the examination, it was discovered that the
service horns on both vehicles did not work. 33 FMSHRC at 1205. MSHA then issued
Citation Nos. 6512366 and 6512367 to Wake Stone, alleging violations of 30
C.F.R. § 56.14132(a) for failure to maintain the service horns in functional condition.
Wake Stone contested the citations, and the parties filed cross-motions for
summary decision.            

The
Judge vacated both citations, rejecting the Secretary’s assertion that the
plain meaning of section 56.14132(a) dictates that if a horn fails to function,
it has not been maintained and a violation has occurred. Id. at 1206-08.
He found that the Secretary’s interpretation was “misguided” and reasoned that
one of the few ways an operator can determine whether a horn is malfunctioning
is by trying the horn. Id. at 1207. The Judge stated that “[s]ection
56.14100 [which requires mobile equipment operators to pre-shift their
vehicles] was created to catch a malfunctioning vehicle before it has the
opportunity to endanger miners’ lives.” Id. He concluded that applying
the Secretary’s interpretation would trivialize the effect of section 56.14100
and diminish the operator’s motivation and incentive to conduct a thorough
examination of equipment prior to placing it in service. Id. The Judge
declined to “place strict liability in this situation” because he believed it
would discourage thorough pre-shift examinations. Id. at 1208. He concluded that “if an operator discovered a problem
with a horn during a pre-shift inspection and subsequently corrected the
problem, then the operator has maintained the horn.” 33 FMSHRC at 1207
(emphasis in original).

II.

Disposition

The Plain Meaning of the Standard

The issue before us involves the interpretation of
section 56.14132(a) of the Secretary’s standards, which provides that:

Manually-operated horns or
other audible warning devices provided on self-propelled mobile equipment as a
safety feature shall be maintained in functional condition.

30
C.F.R. § 56.14132(a).

Where the language of a regulatory provision is clear,
the terms of that provision must be enforced as they are written unless the
regulator clearly intended the words to have a different meaning or unless such
a meaning would lead to absurd results. Jim Walter Res., Inc., 28 FMSHRC
983, 987 (Dec. 2006) (quoting Dyer v. United States, 832 F.2d 1062, 1066
(9th Cir. 1987) (citation omitted));
Alan Lee Good, 23 FMSHRC 995, 997 (Sept. 2001); Lopke Quarries, Inc.,
23 FMSHRC 705, 707 (July 2001); Jim Walter Res., Inc., 19 FMSHRC 1761,
1765 (Nov. 1997).

The Secretary argues that the plain meaning of section
56.14132(a) requires that horns always be maintained in functional condition. We
agree. The plain language of the standard requires that horns or other audible
warning devices must function at all times unless the equipment has been taken
out of service for repair. The Commission has held that the term “‘maintain’ [means]
that warning devices shall be capable of performing on an uninterrupted basis
and at all times. . . . [and] imposes a continuing responsibility on operators
to ensure that safety alarms do not fall into a state of disrepair.” Nally
& Hamilton Enter., Inc., 33 FMSHRC 1759, 1763 (Aug. 2011); see also
Sedgman, 28 FMSHRC 322, 329 (June 2006); Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 2006); Jim Walter Res., Inc., 19 FMSHRC 1761, 1765 (Nov. 1997). Additionally, the
term “functional” in section 56.14132(a) means to be “capable of performing” or
“operative.” See Nally, 33 FMSHRC at 1763.

It is undisputed that the service horns on both the
Caterpillar 345 B excavator and the Komatsu D65Px dozer were not functioning
when the MSHA inspector attempted to examine the vehicles. 33 FMSHRC at 1205. Because
the service horns were defective at the time of the inspection and the
equipment had not been tagged out of service, we conclude that the horns were
not being “maintained in functional condition” as required by the language of
section 56.14132(a).

Contrary to the Judge’s decision not to “place strict
liability in this situation” (33 FMSHRC at 1208), section 110(a) of the Act, 30
U.S.C. § 820(a), imposes strict liability upon operators who are found in
violation of the Act. See Ames Construction, Inc., 33 FMSHRC
1607, 1611 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012). Imposing
strict liability under the Mine Act is not optional – it is mandatory. Therefore,
we reject the idea that Wake Stone’s strict liability under the maintenance
standard is somehow negated by compliance with the pre-operational standard. See
33 FMSHRC at 1208. According to the plain meaning of section 56.14132(a) and
the principles of strict liability as applied to this regulation, the Secretary
need only prove that the service horns were not “maintained in functional
condition.”

The Effect of the Pre-operational Inspection Requirement

The Judge held that the maintenance requirement of section
56.14132(a) must be read in concert with the pre-operational inspection
requirement of section 56.14100(a). This interpretation is inconsistent with
the plain meaning of the standard and thus is an impermissible construction. Section
56.14132(a) is devoid of any language that makes its enforcement dependent on another
regulation. “To read a limitation into the [regulation] that has no basis in
the [regulatory] language” would be impermissible. See Thunder Basin Coal
Co. v. FMSHRC, 56 F.3d 1275, 1280 (10th Cir. 1995).

In Alan Lee Good, the operator similarly argued
that the functional braking system requirement of section 56.14101(a)(3) was applicable
only to “‘self-propelled’ mobile equipment to be used during a particular shift”
and was qualified by the pre-operational inspection and correction requirements
of section 56.14100. 23 FMSHRC at 997. The Commission categorically rejected
this approach, reasoning that “[s]ection 56.14101 is clearly a different
standard from section 56.14100, with separate requirements.” Id.

The same is true here. Sections 56.14100(a) and
56.14132(a) are separate and independent regulations, each with its individual mandate.
The text of section 56.14100(a) clearly states that it applies to equipment “to
be used during a shift” and requires inspection of said equipment “before being
placed in operation.” In contrast, section 56.14132(a) does not contain
language limiting its application to equipment only “to be used during a shift”
or to equipment that has or has not been “placed in operation.”   

Accordingly, we conclude that the Judge’s decision to
construe the language of section 56.14132(a) in concert with the language of section
56.14100(a) was in error.

The Contention that the Vehicles Were Not in Use

We also reject Wake Stone’s argument that a violation
did not occur because the vehicles had not been in use when the defects were
discovered, thus entitling it to perform a pre-operational examination prior to
the MSHA inspection. The purpose of section 56.14132(a) is to shield miners
from the hazards posed by operating defective equipment. See 30 C.F.R. §
56.1. Absent specific limiting language, the Commission has consistently
determined that standards requiring maintenance in functional condition are
enforceable when the cited equipment is not in actual use, unless it has been
removed from service. Alan Lee Good, 23 FMSHRC at 997; see Mountain
Parkway Stone, Inc., 12 FMSHRC 960, 963 (May 1990); Ideal Basic Indus.,
Cement Div., 3 FMSHRC 843, 844-45 (Apr. 1981).

In Ideal Basic, the Commission reversed a
judge’s finding that 30 C.F.R. § 56.9-2, which requires that defects be
corrected before the equipment is placed in use, had not been violated because
the defective coupling in question had not been used. 3 FMSHRC at 843. Finding
the Judge’s “interpretation of the standard too narrow,” we held that “use of a
piece of equipment containing a defective component that could be used and
which, if used, could affect safety, constitutes a violation.” Id. at

844. The Commission further stated that if defective equipment affecting safety
     that has not been “rendered inoperable” “is located in a normal work area,
     fully capable of being operated, that constitutes ‘use.’” Id. at 845; see
     also Alan Lee Good, 23 FMSHRC at 997 (reinforcing the rule that equipment
     not tagged out of operation and parked for repairs must be maintained in
     functional condition, “whether or not the equipment is to be used during the
     shift.”); Mountain Parkway, 12 FMSHRC at 963 (relying on Ideal Basic
     and interpreting the term “used” broadly to include equipment that was parked
     in the mine in turn-key condition and not removed from service).

In the instant case, the excavator was located in the rockbreaker
area of the pit, and the dozer was parked in the pit area of the mine. See
W.S. Answer to Sec’y’s 1st Req. for Adm. at 2. Wake Stone does not contend that
either vehicle had been locked and tagged out of service when the MSHA
inspector began his inspection. Because the defective vehicles were located in
a normal work area, were capable of being used, and had not been locked and
tagged out, we conclude that the dozer and excavator were in “use” at the time
of inspection.

We emphatically reject the Judge’s notion that sustaining
these citations for failing to maintain equipment that is in a work area
somehow trivializes section 56.14100(a). The operator is not being punished for
finding defects during a pre-operational inspection. It is being cited for
failing to maintain the horns in an operative condition. Thorough and diligent
pre-operational inspections are a key component of assuring that safety
equipment will be maintained and functional when equipment is in use. No
operator should read this decision as creating anything other than an incentive
to conduct thorough pre-operational inspections in order to minimize the chance
that equipment will be at the job site in a defective condition.

Indeed, it would be odd if operators could insist on a
section 56.14100 pre-operational examination upon learning of an impending MSHA
inspection, and thereby avoid liability under section 56.14132(a). The strict
liability nature of the Act does not allow for this sort of gamesmanship.[3]
As we have previously stated, restricting an operator’s liability to hazards
identified in pre-shift examinations, or in this case, pre-operational
examinations, runs counter to the Act’s safety objectives and would lead to
perverse incentives. Nally, 33 FMSHRC at 1764. Instead, requiring that
operators continuously keep machinery in operational condition encourages more
vigilance with regard to instituting and enforcing effective maintenance
procedures. Id.[4]

Accordingly,
we find that the Judge’s interpretation of 30 C.F.R. § 56.14132(a) is invalid
and conclude that Wake Stone violated the standard when it failed to “maintain
in functional condition” the horns on both the excavator and the dozer. Because
we find the standard’s language to be plain and unambiguous, we do not reach
the Secretary’s deference argument or the operator’s notice argument. See
Exportal Ltda v. U.S., 902 F.2d 45, 50 (D.C. Cir. 1990); Jim Walter
Res., 28 FMSHRC at 987; Jim Walter Res., 19 FMSHRC at 1765; Cannelton
Indus., Inc., 26 FMSHRC 146, 151 (Mar. 2004); Bluestone Coal Corp.,
19 FMSHRC 1025, 1031 (June 1997) (holding that when the language of the
standard is found to be clear and unambiguous, fair and adequate notice to
operators is provided).

III.

Conclusion

For
the reasons set forth herein, we reverse the Judge’s finding that Wake Stone
did not violate 30 C.F.R. § 56.14132(a) and remand the case to the Judge for
assessment of penalties.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Michael G. Young 

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

Distribution

Mark N. Savit, Esq.

Jackson Lewis, LLP

950 17th Street, Suite 2600

Denver, CO 80202

[email protected]

Donna Vertrano Pryor, Esq.

Jackson Lewis, LLP

950 17th Street, Suite 2600

Denver, CO 80202

[email protected]

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA  22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor                                                  

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge L. Zane Gill

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004

[1]
30 C.F.R. § 56.14132(a) provides that
“[m]anually-operated horns or other audible warning devices provided on
self-propelled mobile equipment as a safety feature shall be maintained in
functional condition.”

[2]
30 C.F.R. § 56.14100(a) provides that
“[s]elf-propelled mobile equipment to be used during a shift shall be inspected
by the equipment operator before being placed in operation on that shift.”

[3]
We note that the operator here only asserted the
requirements of section 56.14100(a) after the MSHA inspector announced his
intention to inspect the vehicles.

[4]
Wake Stone’s contention that the Secretary’s
interpretation of the standard will lead to absurd results, because the
Secretary will be required to issue citations when malfunctioning horns are
noted in pre-operational examination records, is likewise without merit. W.S.
Br. at 11-15. The citations were issued based on the condition of the equipment
at the time of the inspection. Further, “as a general matter, the Secretary
does not automatically issue a citation based solely on information in
examination records.” S. Reply Br. at 4; see also Examination of Work
Areas in Underground Coal Mines for Mandatory Health or Safety Standards, 77
Fed. Reg. 20700-02, 20703 (2012) (discussing the final rule on examinations of
work areas in underground coal mines and stating that “[g]enerally, at the
beginning of an inspection, an inspector will review an operator’s examination
records). As is the case under the existing standard, recording a violation
does not automatically result in a citation.”).