Secretary of Labor v. Cemex Southeast, LLC

Plain-English summary

Cemex runs a cement plant in Demopolis, Alabama. After an elevator fatality at a different cement plant in Louisville, MSHA ran a spot inspection of the Demopolis elevators and cited Cemex under the workplace examination standard, 30 C.F.R. § 56.18002(a), for not having a competent person examine the elevators each shift. Cemex had contracted elevator maintenance to an outside elevator company, an arrangement consistent with industry practice and Alabama law that MSHA had never objected to. Judge Thomas P. McCarthy held that the citation failed on fair notice. Nothing before this citation would have told a reasonably prudent person in the mining industry that elevators and elevator landings counted as a "working place" requiring shift examinations, and the judge found the Secretary stretched the standard to cover elevators only after the Louisville accident. The citation was vacated and the docket dismissed. The judge noted the Secretary retains other tools, including citing elevators under 30 C.F.R. § 56.14001 or issuing more specific standards or guidance. Three other violations in the docket had settled before hearing.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.18002(a)
• Outcome: Citation 8641317 was vacated and the docket dismissed, so the proposed $3,996 penalty was not assessed.
• Key point: An operator cannot be penalized under a broad standard when nothing put it on notice that the standard reached the cited equipment, even where the underlying safety concern is real.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9950 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

CEMEX
SOUTHEAST, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2014-299-M

A.C.
No. 01-00016-349326

Mine:
Demopolis Plant CEMEX Inc.

DECISION AND
ORDER

Appearances:               Timothy
J. Turner, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner

Michael
T. Cimino, Esq. & Adam J. Schwendeman, Esq., Jackson Kelly PLLC, Charleston,
West Virginia, for Respondent

Before:                                    Judge
McCarthy

I.          STATEMENT OF THE CASE

This case is before me upon a
petition for assessment of civil penalties under section 105(d) of the Federal
Mine Safety and Health Act of 1977, as amended, (“the Mine Act”), 30 U.S.C. §
815(d). The matter arises out of three citations and one order issued by the Secretary
of Labor (“the Secretary”) to mine operator CEMEX Southeast, LLC (“Cemex”) in
February and March 2014. The citations and order allege that safety violations
relating to elevators occurred at the Demopolis Plant CEMEX Inc. (“the
Demopolis Plant” or “the mine”), a cement processing plant operated by Cemex in
Demopolis, Alabama that is subject to the Secretary’s health and safety
regulations at 30 C.F.R. Part 56. The parties settled three of the violations
prior to hearing. I approved the settlement by Order dated June 16, 2016. The
parties litigated the remaining citation, Citation Number 8641317.

Citation Number 8641317 was
issued under section 104(a) of the Mine Act and alleges that Cemex violated the
mandatory health and safety standard at 30 C.F.R. § 56.18002(a). [1]
The Secretary filed a petition seeking assessment of a $3,996.00 penalty for
the alleged violation. Cemex contested the violation and the citation’s gravity
and negligence designations and contended that it was not afforded fair notice of
the Secretary’s interpretation of § 56.18002(a). Accordingly, I held a hearing
to determine whether the Secretary properly charged Cemex with a violation of
the cited standard, and, if so, whether the Secretary’s gravity and negligence
designations were appropriate and what penalty should be assessed against
Cemex.

The hearing was held in Birmingham,
Alabama on April 25, 2016. During the hearing, the parties presented testimony
and documentary evidence. [2]
After the Secretary presented his case, Cemex moved for judgment as a matter of
law, arguing that the Secretary had failed to prove a violation. Tr. 115-19. I
denied that motion. Tr. 119-20. The Respondent elected to rest without calling
any witnesses. Tr. 120-21. The parties subsequently filed post-hearing briefs.

For the reasons set forth below, I
now vacate Citation Number 8641317 on the grounds that the Secretary has failed
to establish a violation of § 56.18002(a) and that Cemex did not receive fair
notice of the Secretary’s interpretation of § 56.18002(a) before the citation
was issued. Based on the entire record, including my observation of the
demeanor of the witness, and after considering the post-hearing briefs, I make
the following findings:

II.        STIPULATIONS OF FACT AND
LAW

At hearing, the parties agreed to
the following stipulations (see Ex. S2 and Tr. 15):

1. Cemex
   was at all times relevant to this proceeding engaged in mining activities at
   the Demopolis Plant where the citations in this matter were issued.

2. Cemex’s
   mining operations affect interstate commerce.

3. Cemex
   is subject to the jurisdiction of the Mine Act.

4. Cemex
   is an “operator” as that word is defined in section 3(d) of the Mine Act, 30
   U.S.C. § 802(d), at the mine where the contested citations in this proceeding
   were issued.

5. The
   Administrative Law Judge has jurisdiction over this proceeding pursuant to
   section 105 of the Mine Act, 30 U.S.C. § 815.

6. On
   the dates the citations in this docket were issued, the issuing MSHA inspectors
   were acting as duly authorized representatives of the Secretary, were assigned
   to MSHA, and were acting in their official capacity when conducting the
   inspections and issuing the subject MSHA citations.

7. The
   citations at issue in this proceeding were properly served upon Cemex as
   required by the Mine Act.

8. The
   citations at issue in this proceeding may be admitted into evidence.

9. The
   certified copy of the MSHA Assessed Violation History (marked as Exhibit S1)
   reflects the history of the citation issuances at the mine prior to the date of
   the last citation.

10. Cemex
    demonstrated good faith in abating the violations.

11. The
    penalties proposed by the Secretary in this case will not affect the ability of
    Cemex to stay in business.

III.       FINDINGS
OF FACT

The
sole citation remaining at issue in this proceeding was written by MSHA Safety
Specialist Michael Evans [3]
on March 5, 2014 during a spot inspection of the elevators at the Demopolis
Plant that was spurred by a recent fatality involving an elevator at a
different cement plant in Louisville, Kentucky. Tr. 38-40. The citation alleges
that Cemex violated the mandatory safety standard at 30 C.F.R. § 56.18002(a) by
failing to designate a competent person to examine the elevators at the
Demopolis Plant during each shift. Ex. S6; Ex. R3.

Maintenance of
the Demopolis Plant Elevators  

The mine has elevators at four
locations: the preheater tower, the mill room, the pack house (or silo), and
the office. Tr. 49-52. [4]
At the time of the spot inspection, the elevators were maintained by contractor
ThyssenKrupp Elevator Corporation (“TKE”) pursuant to a service agreement. Tr.
41-42; see Ex. R17 (showing regular payments from Cemex to TKE for “our
existing maintenance agreement” during the year leading up to the inspection). This
arrangement was consistent with industry practice and with Alabama law
prohibiting anyone but licensed elevator mechanics from performing maintenance
work on elevators. Tr. 81-82; see Ex. R16 (containing copy of Ala. Code
§ 25-13-4).

The precise terms of the
contractual arrangement between Cemex and TKE at the time of the spot
inspection are not clear. The contract itself was not offered into evidence. The
Secretary produced a copy of a different contract that became effective
approximately one month after the inspection, on April 1, 2014, and he relies
on this contract to show how elevator maintenance duties were allocated between
Cemex and TKE at the time of the inspection. Ex. S10; see Sec’y Br.
23-24. Under the April 1, 2014 contract, TKE’s obligations include providing
repair services, which are billed separately from the regular contract
payments, and making six visits to the mine each year to conduct “limited
preventative maintenance.” Ex. S10. The contract specifies that regular
preventative maintenance includes lubrication of the guide rails, “minor
adjustments,” and the examination, cleaning, and lubrication of the elevators’
major mechanical components, namely, the controller, the machine, the motor,
and the interlocks, which are the mechanisms that ensure that the hoistway
doors on each floor do not open onto the elevator shaft unless the car is
present. Ex. S-10; Tr. 82.

It would be improper for me to
assume that the contractual arrangement between Cemex and TKE at the time of
the inspection was identical to the arrangement described above. However, the
evidence suggests that it was similar. Specialist Evans testified that Cemex
employees performed minor elevator maintenance tasks such as changing
burned-out lightbulbs on elevator lights, but in general, a miner who observed
an elevator hazard was expected to lock and tag out the elevator and call TKE
to repair it. Tr. 62-63, 69-71; Ex. R27 at 30. [5]
Cemex asserts that TKE performed regular quarterly elevator inspections and
maintenance. Resp. Br. 24 n.11. [6]
Miners mentioned quarterly maintenance to Specialist Evans, but did not produce
any records of quarterly examinations. Tr. 65, 67. Instead, Evans was shown a
“break-and-fix” record and records of annual inspections performed by TKE in
2011 and 2012. Tr. 64-67; Ex. S7 at 4. [7]
Considering this evidence, I conclude that at the time of the spot inspection,
the elevators at the Demopolis Plant were being examined by TKE four times each
year for preventative maintenance purposes, and were subject to separate annual
inspections in 2011 and 2012.

The Louisville Fatality

The March 5, 2014 spot inspection
of the Demopolis Plant elevators was spurred by a fatal accident that had
occurred less than two weeks earlier at a different cement plant operated by
Cemex in Louisville, Kentucky. Tr. 39, 99. A miner attempting to use an
elevator at the Louisville facility on February 21, 2014, had opened the hoistway
doors on the fourth floor of the building, stepped into the elevator shaft
without noticing that the elevator car was actually on the ground floor, and fell
several stories onto the top of the car, sustaining fatal injuries. Tr. 39-40; Ex.
S8; Ex. S9; Ex. R9.

On February 28, 2014, MSHA issued
a Fatalgram describing the accident and listing the following best practices:

·         
Immediately
report any elevator problems to management.

·         
Ensure
that any problems affecting the safety of an elevator are repaired promptly.

·         
Ensure
that elevator door interlocks, that prevent the door from being opened unless
the elevator car is present, are functional.

·         
Ensure
that elevator doors will not open unless an elevator car is at the floor
landing.

·         
Install
audible signals that sound when the elevator car is at the landing prior to the
doors opening.

·         
Train
all persons to be aware of their surroundings when entering or exiting an
elevator car.

Ex.
S8; Ex. R9. MSHA also dispatched inspectors, including Evans, to conduct spot
inspections of elevators at other cement plants, with special instructions to
check the doors at all the landings to ensure that they would not open unless
the car was present. Tr. 21-22, 59-60, 92. MSHA’s post-fatality enforcement
activity relating to elevators has spurred litigation resulting in at least three
Commission Administrative Law Judge opinions so far. Ash Grove Cement Co. ,
38 FMSHRC __, Nos. WEST 2014-963 et al. (Aug. 4, 2016) (ALJ Barbour); Cemex
Constr. Materials, Atl., LLC , 38 FMSHRC 827 (Apr. 2016) (ALJ Barbour); Cemex
Inc. , 37 FMSHRC 2886 (Dec. 2015) (ALJ Rae) (order on summary decision
motions).  

Meanwhile,
in the wake of the fatality, Demopolis Plant Manager Gary Pinault had been told
by a regional manager to “make sure we are having all of our elevators
inspected by a professional third party ASAP … to be assured that they are safe
and the doors cannot be opened unless the elevator is present.” Ex. R22 (email
dated February 26, 2014). Demopolis’ four elevators were duly examined by TKE
on February 28, 2014. Tr. 90-91, 104; Ex. S7 at 1-2; Ex. R19. The mill room elevator
had been shut down ten days earlier for repairs to the motor, and it remained
locked and tagged out after the examination. Tr. 52; Ex. S7 at 4. The preheater
elevator was also locked and tagged out during the examination because the hoistway
doors could be opened on two different floors when the elevator car was not
present, indicating defective door interlocks. Tr. 50-51; Ex. S7 at 1-2; Ex.
R19.

The Inspection

MSHA Specialist Evans arrived at the
Demopolis Plant to initiate the spot inspection on March 5, 2014. He first visited
the mine office, where he learned that only two of the elevators were operational.
Tr. 40, 49; Ex. S7 at 1. He set off to inspect all of the elevators, joined by Safety
and Health Manager Ann Saelens and a miners’ representative, whose name Evans could
not recall at the hearing. Tr. 40-41, 46-47.

The first location visited by the
inspection party was the preheater tower, which is an eight-story building
where material is heated. Tr. 50; Ex. S7 at 1-3. The elevator at this location has
a manually operated hoistway door, with a window at each landing. Tr. 84-87. The
elevator was danger-taped off and the power to it was shut down, which
prevented Evans from inspecting elements such as the lights, the door buttons,
and the bell buttons. Ex. S7 at 1-3. However, Evans was able to test the
hoistway doors at each landing and confirm that they could be opened on two of
the floors when the car was not there, which, as noted above, was the reason
the elevator had been locked and tagged out following examination by TKE on
February 28. Tr. 50-51; Ex. S7 at 2-3. [8]
Because the elevator was shut down and no one was using it, Evans did not issue
a citation for the defective doors. Tr. 103. At hearing, he did not claim to
observe anyone working near the elevator. Tr. 74-75. In fact, he testified that
he did not recall seeing anyone at the preheater tower at all. Tr. 75. However,
his field notes state that he saw an employee doing cleanup work “on 1½ level” of
the building. Ex. S7 at 2.

The inspection party next traveled to
the mill room, a three-story building that has an elevator with automatic doors.
Tr. 86-87; Ex. S7 at 3-4. As mentioned above, the elevator had been locked and
tagged out since February 18 for repairs to the motor. Tr. 52; Ex. S7 at

4. According to Evans, the miners’ representative told him that the mill
   elevator “had problems with its lights,” but because the power was off, Evans
   could not check this himself. Tr. 62. Evans did not further describe his visit
   to the mill room, except to say that he recalled seeing people working in the
   building, although he was unsure exactly what they were doing and could not say
   what sort of work was generally performed at the mill. Tr. 52-55; Ex. S7 at 3-4.

The inspection party next visited the
pack house, a five-story building with an elevator that, like the preheater
elevator, has a manually operated door at each landing. Tr. 51-52, 84-87; Ex. S7
at 4. The pack house elevator was operational, and Evans testified that he saw
a miner or miners using it. Tr. 51-52, 56, 75. He did not mention what work
these miners were performing, and he was unsure of the pack house’s general function,
although he believed that the building may be involved in the shipping process.
Tr. 51-52, 75. Evans checked the pack house elevator’s hoistway doors on all
floors and found no problems. Tr. 105; Ex. S7 at 4. However, he issued one non-significant
and substantial (non-S&S) citation for a defective retiring cam release roller
on the third floor, and another non-S&S citation for nonfunctional in-use
lights at the call stations on four different floors. Tr. 56, 100-03; Ex. S7 at
4, 7; Ex. R5; Ex. R7. [9]

At some point during the inspection,
Evans also checked the elevator at the mine office, which serves three floors
and has automatic doors. Tr. 85, 87; Ex. S7 at 5. Evans testified that there
were no problems with the hoistway doors, but he did not further describe his
observations. Tr. 105; Ex. S7 at 5.

Aside from checking all the elevators himself,
Evans also discussed them with several miners.  He asked for records showing
whether the elevators were included in the workplace examinations that the mine
allegedly was required to conduct each shift pursuant to 30 C.F.R. § 56.18002. Tr.
41, 46. Saelens informed Evans that Cemex did not include elevators in its
workplace examinations, that miners performed such examinations only in areas
where they were working, and that TKE handled all work relating to the
elevators. Tr. 41-42, 66; Ex. S7 at 2. As mentioned above, Evans was shown a
“break and fix” record, (that is, a record of repair work performed by TKE at
the mine), and records of annual inspections that TKE had performed in 2011 and
2012, but no records of regular maintenance examinations. Tr. 64-67; Ex. S7 at
4, 7.

Evans was told that TKE was called to
the mine fairly often to perform repairs. Tr. 64. Evans learned from the
miners’ representative and Plant Manager Pinault that the elevators had been
installed in the 1970s and were now “old and in bad shape,” and the mine had
“spent thousands of dollars trying to keep them running.” Tr. 55, 87-88; Ex. S7
at 5. The miners’ representative expressed concern about the elevators and said
that the elevators had broken down and caused an entrapment or entrapments in
the past. Tr. 55, 88; Ex. S7 at 6; Ex. R4; see Ex. R1. [10]

The Citation & MSHA Specialist
Evans’ Supportive Testimony

Based on his observations and the
information he had gathered from the March 5, 2014 spot inspection, Evans
issued Citation Number 8641317 that afternoon. Ex. S6; Ex. R3; Tr. 42-44. The
narrative portion of the citation states, in pertinent part:

The mine
operator failed to designate a competent person to examine the elevators for
hazards each shift at this operation. Defects affecting the safe operation of
the elevator car and the hoistway doors, at each floor, exposed miners to fatal
injury when using the elevator and/or working near the hoistway doors on a
daily basis. Management is aware of the MSHA regulation requiring work place
exams each shift.

Ex. S6; Ex. R3. Evans
assessed the violation as reasonably likely to cause a fatal injury affecting
one person, significant and substantial (S&S), and the result of Cemex’s
high negligence. Ex. S6; Ex. R3; Tr. 60-66. As noted above, he issued the
citation under the mandatory safety standard at 30 C.F.R. § 56.18002(a), which
requires a competent person to examine each working place at least once each
shift for conditions which may adversely affect safety or health. Ex. S6; Ex.
R3.

Although Evans
had inspected the Demopolis Plant before, he had never before asked Cemex for
workplace examination records for elevators, had never told Cemex that such
records needed to be kept, and had never cited Cemex for failing to designate a
competent person to conduct workplace examinations of elevators or for failing
to report elevator defects to management. Tr. 87, 98-99, 112-13. In fact, this
was the first citation that Evans had ever written involving an elevator. Tr.
59.

Evans conceded
that he was not aware of any regulations or MSHA guidance documents, such as
Program Policy Letters (PPLs) or the Program Policy Manual (the PPM), which define
elevators as part of the “working place” that must be included in workplace
exams. Tr. 89, 93-96, 106. He further conceded that MSHA’s interpretation of
workplace exams with respect to elevators had changed since the Louisville
fatality because elevators previously did not need to be included in these
exams. Tr. 105-06. Nonetheless, Evans believed that his issuance of the citation
was appropriate because “[w]e’d just had an accident that killed a man and if
[examining the elevators] could prevent it from happening here at Demopolis,
then we needed to get them to do that. That’s the only tool that you’ve got to
get them to do what will protect the miners.” Tr. 43-44; see also Tr. 61
(“[I]f a workplace examiner writes a defect affecting safety anywhere, they
usually take care of it pretty quick, and they weren’t doing that regarding the
elevators.”); Tr. 63-64 (“[T]hey should have a regular program that identifies
hazards that can kill people and … may have prevented the [fatality] in
Louisville.”).

When asked at
hearing to define the term “working place” as used in the workplace exam
regulation, Evans first provided several examples. “[I]f they were going to
change a motor on the fourth floor of the preheater tower, that working place
would be the area that they’re working at on the fourth floor,” he explained. Tr.

47. If miners were working at the bag house, “That would be a working place. It’s
    where people travel to work.” Tr. 48. Evans later seemed to embrace a broader
    definition of the term: “I consider the whole mine a working place. Anywhere
    that people work or travel is a working place.” Tr. 57.  On cross-examination, however,
    he conceded that not every location inside a cement plant is a working place. Tr.
48. For example, he agreed that the regulations do not require travelways in
    cement plants to be examined each shift. Tr. 107. However, he suggested that a
    travelway could constitute a “working place” such that it was subject to the
    workplace exam regulation if a person were injured there. Tr. 110-11. With
    respect to elevators, Evans e conceded that he believes an elevator becomes a
    working place only when someone is using it or working close to the hoistway
    doors, but he opined that Cemex’s elevators were part of the working place when
    he issued the citation “because people get on the elevator to get to the different
    levels that they work in” and because miners working on a floor with defective
    hoistway doors would be exposed to a hazard. Tr. 48-49, 75-76.

IV.       ANALYSIS
AND CONCLUSIONS OF LAW

A.        The
Alleged Violation of § 56.18002

The Secretary
bears the burden of proving by a preponderance of the evidence that a violation
of the cited standard, § 56.18002, occurred. Jim Walter Res., Inc. , 9
FMSHRC 903, 907 (May 1987); RAG Cumberland Res. Corp. , 22 FMSHRC 1066,
1070 (Sept. 2000), aff’d , 272 F.3d 590 (D.C. Cir. 2001).

As noted at the
outset of this decision, § 56.18002 requires Cemex to “examine each working
place at least once each shift for conditions which may adversely affect safety
or health.” 30 C.F.R. § 56.18002(a). The major requirements of the safety
standard are that (1) daily workplace examinations are mandated for the purpose
of identifying workplace safety or health hazards; (2) the examinations must be
made by a competent person; and (3) a record of the examinations must be kept. See
FMC Wyo. Corp. , 11 FMSHRC 1622, 1628 (Sept. 1989) (discussing identically
worded regulation at § 57.18002). In addition, the standard carries an implicit
adequacy requirement: an examination must be adequate in the sense that it must
identify those hazardous conditions which would be recognized by a reasonably
prudent competent examiner. Sunbelt Rentals, Inc. , 38 FMSHRC 1619, 1627
(July 2016). The standard is intended “to require regular close examination of
the total mining environment to find and eliminate potential hazards,” 60 Fed.
Reg. 9985, 9987 (Feb. 22, 1995), and was “drafted in general terms in order to
be broadly adaptable to the varying circumstances of a mine,” Sunbelt
Rentals , 38 FMSHRC at 1627 (quoting FMC Wyo. , 11 FMSHRC at 1629).

At issue in this
case is whether the standard is broad enough to require examinations of
elevators and elevator landing areas. Although Cemex examined its elevators
after the Louisville fatality and relied on contractor TKE to perform quarterly
maintenance examinations, there is no evidence that Cemex included the
elevators and landing areas in its regular workplace examination program under
§ 56.18002 by instructing a designated competent person to examine them and
keeping a record of the examinations, and mine management admitted as much to
Specialist Evans. Tr. 41-42, 90-91, 104; Ex. S7 at 1-2; Ex. R19. Accordingly,
the Secretary will meet his burden of proving a violation if he prevails on his
argument that the term “working place,” as used in § 56.18002(a), categorically
includes elevators. See Sec’y Br. 13-18; Tr. 24-25. He can also prove a
violation by establishing that the elevators in question constituted “working
places” within the meaning of the regulation. These issues present a question
of regulatory interpretation.

1.         Legal Principles
Governing Regulatory Interpretation

Where the language of a regulatory
provision is clear, the provision must be enforced as written unless the
regulator clearly intended the words to have a different meaning or enforcement
would produce absurd results. Hecla Ltd. , 38 FMSHRC __, Nos. WEST
2012-760-M et al., slip op. at 6 (Aug. 30, 2016); Austin Powder Co. , 29
FMSHRC 909, 913 (Nov. 2007); see Pfizer, Inc. v. Heckler , 735 F.2d 1502,
1509 (D.C. Cir. 1984) (“Under settled principles of statutory and rule
construction, a court may defer to administrative interpretations of a statute
or regulation only when the plain meaning of the rule itself is doubtful
or ambiguous.”).

To the extent that a regulation is
silent or ambiguous on a particular point, the Commission follows the doctrine
of deference established in Bowles v. Seminole Rock and Sand Company ,
325 U.S. 410 (1945), and reaffirmed in Auer v. Robbins , 519 U.S. 452
(1997). See, e.g. , Hecla , slip op. at 6; Tilden Mining Co. ,
36 FMSHRC 1965, 1967 (Aug. 2014), aff’d , __ F.3d , 2016 WL 4254997
(D.C. Cir. Aug. 12, 2016). Under this doctrine, the promulgating agency’s
interpretation of the regulation is entitled to full deference (referred to as Auer
deference) unless the interpretation is unreasonable, plainly erroneous, or
inconsistent with the regulation, or there is reason to suspect it does not
reflect the agency’s fair and considered judgment on the matter. Drilling
& Blasting Sys., Inc. , 38 FMSHRC 190, 194 (Feb. 2016) (citing Christopher
v. SmithKline Beecham Corp. , 567 U.S. , 132 S. Ct. 2156 (2012)); see,
e.g. , id. at 194-97 (declining to defer to plainly erroneous
interpretation); Hecla , slip op. at 6-9 (deferring to reasonable interpretation);
Tilden Mining , 36 FMSHRC at 1967-68 (same); Twentymile Coal
Co. , 36 FMSHRC 2009, 2012-13 (Aug. 2014) (declining to defer to
unreasonable interpretation).

If there is reason to suspect that an
agency’s interpretation does not reflect its fair and considered judgment, the
interpretation is not entitled to full Auer deference, but is still
entitled to a measure of deference or respect proportional to the “thoroughness
evident in its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors which give it
power to persuade.” Christopher v. SmithKline Beecham , 132 S. Ct.
at 2168-69 (citing Skidmore v. Swift & Co. , 323 U.S. 134, 140
(1944), and United States v. Mead Corp. , 533 U.S. 218, 228 (2001)). [11]

In evaluating the merits of a proposed
regulatory interpretation, the Commission has considered factors such as whether
the interpretation is consistent with the language and ordinary usage of the
cited standard, whether it harmonizes with the purpose and structure of the
regulations, and whether it furthers the policy goals of the Mine Act, particularly
the Act’s safety-promoting purposes. See, for example, Hecla , slip op.
at 6-9 (analyzing the language of the regulation, the regulation’s specific
purpose, and the general policy goals of the Mine Act, particularly the goal of
promoting safety); Nally & Hamilton Enters. , 38 FMSHRC 1644, 1648-51
(July 2016) (adopting an interpretation that was consistent with the language
of the regulation, as determined by reliance on dictionary definitions and prior
case law; that harmonized with the regulatory scheme; and that furthered the
goals of the Mine Act); Twentymile , 36 FMSHRC at 2012-13 (rejecting an interpretation
that was not suggested by the language of the standard or its regulatory
history and that did not advance mine safety); Wolf Run Mining Co. , 32
FMSHRC 1669, 1681-82, 1685-86 (Dec. 2010) (analyzing one ambiguous term with
reference to the broader regulatory context, including analogous regulations, and
adhering to another ambiguous term’s customary technical usage, as demonstrated
by a mining dictionary and the testimony of knowledgeable witnesses); Daanen
& Janssen, Inc. , 20 FMSHRC 189, 193-94 (Mar. 1998) (analyzing
regulatory language with reference to ordinary dictionary meanings, the Mine
Act’s safety-promoting goals, the PPM, the Secretary’s past application of the regulation,
and the regulatory structure); Island Creek Coal Co. , 20 FMSHRC 14, 19-24
(Jan. 1998) (evaluating the ordinary meaning of the regulatory language;
“contextual indications,” including the meaning of similar language in other
regulations; and the Mine Act’s purposes).

2 .         The
Parties’ Positions

The Secretary
argues that it is reasonable to interpret the term “working place” to include
elevators and elevator landings because the definition of “working place” found
in § 56.2 includes the expansive word “any”; because § 56.18002 is a broad
standard intended to require close examination of the total mining environment;
and because miners use elevators to perform “work,” as defined in the Merriam
Webster Online Dictionary, bringing them within the plain meaning of “working
place.” Sec’y Br. 13-17. [12]
Noting that Administrative Law Judge David Barbour recently interpreted §
56.18002 to cover elevators when they are being used to perform work, the
Secretary suggests that I should adopt and broaden this holding to apply to
elevators “as a unit” without temporal limitations – that is, he suggests that
elevators should categorically be included in workplace exams. Id. at
17-18 & n.11 (citing Cemex Constr. Materials, Atl., LLC , 38 FMSHRC
827 (Apr. 2016) (ALJ)). The Secretary contends that in this case, § 56.18002
was violated because MSHA Specialist Evans observed employees using the pack
house elevator, and was told that employees use the mine’s elevators on a daily
basis, yet Cemex had not designated a competent person to examine them. Id. at

18. The Secretary further asserts that even if elevators constitute travelways
    rather than “working places,” they are still subject to workplace exams. Id.
    at 18-20.

Cemex argues
that the elevators at the Demopolis Plant do not fall within the definition of
a “working place.” Resp. Br. 5-19. Cemex first contends that the Secretary’s
purported interpretation of “working place” is actually a substantive rule
change imposing a new obligation to examine not only areas where miners work,
but also where they travel, which is contrary to the plain meaning of the
standard. Id. at 6-7 & n.4. To the extent that this is a new
substantive rule, Cemex argues that the Secretary was required to engage in
notice-and-comment rulemaking. Id. at 25-28. To the extent that this is
a new interpretation of an ambiguous standard, Cemex argues that the
interpretation is unreasonable and not entitled to deference because it is
inconsistent with the language and structure of the regulations and would
produce absurd results. Id. at 7-14. Cemex further asserts that, even if
an elevator could be construed as a working place, the Secretary has failed to
meet his burden of establishing that work was being performed at the time of
the inspection, or would be performed in the foreseeable future, on or near the
cited elevators. Id. at 14-19.

3.         Interpretation of § 56.18002

a.      Whether the
Language of the Regulation Is Clear

The regulatory language at issue in this
case is not clear.  Section 56.18002 requires examination of “each working
place” each shift, but does not define “working place.” A separate regulation
defines a “working place” in a metal or nonmetal mine as “any place in or about
[the] mine where work is being performed.” 30 C.F.R. § 56.2. However, the
regulations are silent and therefore unclear as to whether and under what
circumstances the Secretary considers elevators and elevator landings to be
part of the working place such that they fall within the scope of § 56.18002.

I reject the Secretary’s assertion that “[t]here
is simply no ambiguity to the standard when measuring it with the definition of
work.” Sec’y Br. 14. The Secretary’s own witness admitted that the Secretary
has changed his interpretation of the standard to cover elevators and elevator
landings, whereas previously they were not required to be examined as part of
the “working place.” Tr. 105-06. I further reject Cemex’s assertion that the
“regulatory language plainly requires examinations where miners are
conducting work, not travel.” Resp. Br. 7 (emphasis added). The parties have
advanced competing definitions of both “work” and “working place,” showing that
the meaning of this language is not plain. Because the regulatory language is subject
to more than one interpretation, I find it to be ambiguous. See Alcoa
Alumina & Chems., LLC , 23 FMSHRC 911, 915 (Sept. 2001) (rejecting
competing plain language interpretations and finding regulatory language to be
ambiguous due to its silence on the issue in question); Island Creek , 20
FMSHRC at 19 (finding a regulatory term to be ambiguous because it was open to
alternative interpretations).

b.      Whether
Auer Deference Is Warranted

To the extent that § 56.18002 is
ambiguous, the Secretary’s interpretation is entitled to Auer deference
unless it is unreasonable, plainly erroneous, inconsistent with the regulation,
or there is reason to suspect it does not reflect his agency’s fair and
considered judgment. The Supreme Court has cautioned that a regulatory
interpretation may not reflect an agency’s fair and considered judgment if it
conflicts with a prior interpretation or if it appears to be nothing more than
a “convenient litigating position” or a “‘ post hoc rationalizatio[n]’
advanced … to defend past agency action against attack.” SmithKline Beecham ,
132 S. Ct. at 2166-67 (citing Auer , 519 U.S. at 462; Thomas
Jefferson Univ. v. Shalala , 512 U.S. 504, 515 (1994); Bowen v.
Georgetown Univ. Hosp. , 488 U.S. 204, 213 (1988)); see also Talk Am.,
Inc. v. Mich. Bell Tel. Co. , 564 U.S. 50, 63-64 (2011) (noting that
“novelty alone is not a reason to refuse deference,” but suggesting that it
would be improper to accord deference to a new interpretation set forth for the
first time by agency counsel to rationalize an agency action that is under
judicial review). But see Sunbelt Rentals , supra , 38
FMSHRC at 1622-23, and Sunbelt Rentals, Inc. , Nos. VA 2013-275-M et al.
(June 30, 2015) (unpublished Order), where the Commission permitted the
Secretary’s appellate counsel to advance a new regulatory interpretation for the
first time during oral argument and subsequent supplemental briefing, despite the
ALJ’s dismissal on summary judgment grounds based on regulatory interpretation and
fair notice grounds.

For example, in SmithKline Beecham ,
the Court found that the agency’s proffered interpretation did not represent
its fair and considered judgment when the agency had first announced the
interpretation during an enforcement proceeding following a lengthy period of
inaction. 132 S. Ct. at 2167-68. By comparison, in a subsequent case, the Court
found that an agency’s interpretation reflected its fair and considered
judgment where the agency had offered the interpretation in an amicus brief and
had been consistent in its views over time, as opposed to changing its views in
response to litigation. Decker v. Northwest Envtl. Defense Ctr. , 568
U.S. __, 133 S. Ct. 1326, 1337-38 (2013).

In this case, I find reason to suspect
that the Secretary’s proffered interpretation does not reflect MSHA’s fair and
considered judgment on the matter at issue, for several reasons. First, the
Secretary’s desired interpretation is unclear in some respects. Judge Barbour
recently issued a thoughtful opinion in Cemex Construction Materials,
Atlantic , that addressed (1) when a workplace exam must be performed; [13]
(2) where it must be performed; [14]
and (3) what specific components of an elevator must be examined when the
elevator is part of a working place. 38 FMSHRC at 839-40. By contrast, the Secretary
has not clearly addressed all of these points, and because his desired interpretation
is not embodied in the citation, the regulations, or any agency guidance
documents, I am left to discern its scope and bounds on my own, relying on the
testimony and arguments presented in this case. [15]
I am hesitant to find that a new interpretive rule that I must cobble together from
a litigation brief and the testimony of one MSHA employee represents the
Secretary’s fair and considered judgment as a policymaker.  

Additionally, the Secretary’s new
interpretation of § 56.18002 is in conflict with MSHA’s past interpretation and
enforcement of the standard.  MSHA did not previously require elevators to be
examined as part of the “working place.” Tr. 105-06. There is no record evidence
that the Secretary or anyone at MSHA thought to apply the standard in this
manner until Evans issued the disputed citation. [16]
Thus, it appears that the proffered interpretation was first announced by
taking the very enforcement action that triggered this proceeding, and the
arguments that the Secretary has mustered in favor of his newly adopted
position appear to constitute a post hoc rationalization of that past
agency action.

In addressing a similar situation in SmithKline
Beecham , the Supreme Court reached the following conclusion:

Our practice of
deferring to an agency’s interpretation of its own ambiguous regulations
undoubtedly has important advantages, but this practice also creates a risk
that agencies will promulgate vague and open-ended regulations that they can
later interpret as they see fit, thereby “frustrat[ing] the notice and
predictability purposes of rulemaking.” It is one thing to expect regulated
parties to conform their conduct to an agency’s interpretations once the agency
announces them; it is quite another to require the regulated parties to divine
the agency’s interpretations in advance or else be held liable when the agency
announces its interpretations for the first time in an enforcement proceeding
and demands deference.

Accordingly,
whatever the general merits of Auer deference, it is unwarranted here.

132
S. Ct. at 2168 (citations and footnote omitted).

Consistent with this guidance, I find
that full Auer deference is unwarranted here. Nonetheless, the
Secretary’s interpretation of § 56.18002 is entitled to a measure of deference
proportional to “all those factors which give it power to persuade.” Id.
at 2168-69. Accordingly, I will evaluate it on its own merits.

c.      Analysis of the
Secretary’s Interpretation

As a preliminary
matter, regarding Cemex’s argument that the Secretary’s interpretation amounts
to a substantive rule change requiring notice-and-comment rulemaking under the
Administrative Procedure Act (APA), I find that the Secretary is merely
advancing a new interpretive rule. The APA does not require notice-and-comment
rulemaking for interpretive rules issued to advise the public of an agency’s
construction of the regulations it administers. See 5 U.S.C. §
553(b)(A); Small Mine Dev. , 37 FMSHRC 1892, 1899 n.7 (Sept. 2015); see
also Perez v. Mortg. Bankers Ass’n , 575 U.S. __, 135 S. Ct. 1199, 1206
(2015). However, this does not mean that the APA condones promulgating
interpretive rules by any means possible, such as by springing unexpected
enforcement actions upon the regulated community. The Secretary should be aware
that he subjects his interpretive positions to heightened scrutiny and risks
losing the benefit of Auer deference when he attempts to legislate
through enforcement, which I believe has occurred in this case.

Turning to the interpretation itself, the
Secretary proposes to require inclusion of elevators in workplace examinations conducted
under § 56.18002. For the reasons discussed below, I conclude that, although
elevators may fall within the scope of § 56.18002 under some circumstances, the
Secretary has failed to establish that such circumstances exist in this case. Moreover,
to the extent that the Secretary is asking me to define an elevator as a
“working place” under all circumstances, I find this interpretation to be
unreasonable and unpersuasive because it is not suggested by the language and
regulatory history of § 56.18002, does not harmonize with the language and structure
of the regulations, and is not necessary to protect miner safety.

The language of § 56.18002 and the regulatory
definition of “working place” in § 56.2 are so broad and general that they
offer little help in divining whether elevators and elevator landings are meant
to be included. I reject the Secretary’s textual argument that the word “any”
in the regulatory definition of “working place” in § 56.2 is intended to
provide absolute coverage. See Sec’y Br. 15. The full definition of a
working place is “any place in or about a mine where work is being performed.” 30
C.F.R. § 56.2. The Secretary’s argument for absolute coverage ignores the
limiting phrase “where work is being performed.” I find that the language of §
56.18002 and § 56.2 does not directly conflict with the Secretary’s new
interpretation, but it is so general that it does nothing to suggest this
interpretation, either.

The language of § 56.18002 and the current
definition of “working place” have been in the regulations since 1979. See Final
Rule: Metal and Nonmetal Mine Safety; Advisory Standards Revoked or Revised and
Made Mandatory, 44 Fed. Reg. 48490, 48505, 48525 (Aug. 17, 1979). However, a
review of the regulatory history and pertinent interpretive documents shows
that the Secretary has never provided guidance as to whether elevators or functionally
analogous spaces such as stairways and travelways are intended to be included
in workplace exams, even after the Louisville fatality.

The Secretary’s Program Policy Manual
(PPM) states that the term “working place,” as used in § 56.18002, “applies to
those locations at a mine site where persons work during a shift in the mining
or milling processes.” Ex. R10. Like the regulations themselves, this statement
is broad, general, and unhelpful. The Secretary has issued several Program
Policy Letters (PPLs) pertaining to § 56.18002 over the years, but some of them
merely recite the language set forth in the PPM. See Ex. R11; Ex. R12. One
PPL, issued in July 2015, more than a year after the Louisville fatality, adds
that working places include “areas where work is performed on an infrequent
basis, such as areas accessed primarily during periods of maintenance or
clean-up.” Ex. R13. A rulemaking notice recently published by MSHA clarifies
that such areas are covered only “if miners will be performing work in these
areas during the shift.” Proposed Rule and Notice of Public Hearings:
Examinations of Working Places in Metal and Nonmetal Mines, 81 Fed. Reg. 36818,
36821 (June 8, 2016). However, neither the PPL nor the rulemaking notice
addresses elevators or travelways.

Similarly, a 1995 policy notice
published in the Federal Register provides examples of what sort of areas need
or need not be examined, but fails to address elevators or travelways:

The working place for an individual
assigned to perform maintenance or repair duties, for example, is the area
where the individual performs the maintenance or repair work. For an operator
to be in compliance, that area would need to be examined … Standard 56/57.18002
does not apply to access or other roads not directly involved in the mining
process, administrative office building[s], parking lots, lunchrooms, toilet
facilities, or inactive storage areas. Isolated, abandoned, or idle areas of
mines or mills need not be examined, unless persons perform work in these areas
during the shift.

Notice:
Examination of Working Places, 60 Fed. Reg. 9985, 9988 (Feb. 22, 1995).

I find that the available regulatory
history and agency guidance documents do not suggest that § 56.18002 is
intended to cover elevators or functionally analogous spaces such as travelways,
although they do not foreclose the possibility that the standard could be
interpreted in this manner. Because the language and regulatory history of the
standard, considered in conjunction with the Secretary’s guidance documents, do
not suggest that the standard is intended to cover elevators, the inquiry turns
to whether it is reasonable to expand the definition of “working place” in this
manner.

The Secretary’s argument in favor of the
expansion relies heavily on a wide-reaching interpretation of the term “work,”
as used in the definition of “working place” in § 56.2 (“ Working place means
any place in or about a mine where work is being performed.”). The Secretary
contends that “work and working places is a fluid concept.” Tr. 23. Citing the
Merriam Webster Online Dictionary, he broadly characterizes work as any
exertion of physical or mental effort undertaken as part of a miner’s job,
including carrying tools and materials while riding in an elevator. Sec’y Br.
14-16.

By contrast, Cemex characterizes riding
in an elevator as travel, not work, and notes that the Secretary distinguishes
between these two activities in a number of regulatory provisions. Resp. Br. 11-12.
Cemex contends that accepting the Secretary’s definition would have the absurd
result of requiring the mine operator to examine the whole mine during each
shift and would render superfluous the various regulations applying to
travelways. Id. at 8-14.

After considering both parties’
arguments, I find that the Secretary’s proposed interpretation of “work” and
“working place” sweeps so broadly that it does not harmonize with the structure
of the regulations. Contrary to the Secretary’s proposed definition of “work,”
which is so broad that it encompasses travel, see Sec’y Br. 14-16
(defining work as an “activity in which one exerts strength or faculties to do
or perform something”), the regulations clearly treat work and travel as
separate concepts and distinguish between places where people work and places
where they travel. The regulations separately define “working place” and
“travelway.” A travelway is defined as “a passage, walk or way regularly used
and designated for persons to go from one place to another,” which is
functionally distinct from a “place … where work is being performed,” that is,
a working place. 30 C.F.R. § 56.2.

This distinction is borne out by the fact
that numerous other regulations apply, by their specific terms, both to places
where miners work and places where they travel. See, e.g. , 30 C.F.R. §
56.3130, § 56.3131 (requiring ground control in “places where persons work or
travel”); § 56.3200 (requiring hazardous ground conditions to be taken down
before “other work or travel is permitted in the affected area”); § 56.3430
(stating that persons “shall not work or travel” between machinery and the
highwall, except that “[t]ravel is permitted when necessary for persons to
dismount”); § 56.16015 (prohibiting “work from or travel on the bridge of an
overhead crane” unless certain precautions are taken). It would be unnecessary for
these regulations to list both activities if the Secretary were correct in arguing
that “work” is so broad as to encompass “travel.” But the use of both terms
indicates that work and travel are distinct activities. To interpret the terms
otherwise would violate the rule against surplusage. See, e.g. ,
Cotter Corp. , 8 FMSHRC 1135, 1137 (Aug. 1986) (avoiding an interpretation
of a regulation that would render a provision mere surplusage).  

An elevator serves as a “way … for
persons to go from one place to another,” rather than a place where the actual
work of mineral extraction or milling takes place. An elevator is therefore, in
my view, more properly described as a travelway than a working place under §
56.2.

The Secretary asserts that ALJs have
consistently required travelways to be examined during workplace exams, and
cites several cases where ALJs have upheld citations for unsafe conditions
found in travelways. Sec’y Br. 19 (citing Northshore Mining Co. , 37
FMSHRC 372 (Feb. 2015) (ALJ Barbour); U.S. Silica Co. , 32 FMSHRC 1699,
1707 (Nov. 2010) (ALJ Miller); USS, Div. of USX Corp. , 13 FMSHRC 145,
153 (Jan. 1991) (ALJ Broderick)). However, the cases he cites are inapposite
because they pertain to different safety standards – specifically, §
56/57.20003 and § 56/57.11001 – that expressly apply to travelways, unlike §
56.18002. Compare 30 C.F.R. § 56.18002 (regulating “working places”) with
§ 56.11001 (regulating “means of access” to working places) and § 56.20003
(regulating both working places and “passageways,” along with storerooms,
service rooms, and floors). There is no support for the Secretary’s assertion
that travelways have customarily been treated the same as working places in the
metal/nonmetal context.

By contrast, in the underground coal
mining context, the Secretary has promulgated a detailed pre-shift examination
standard that specifically includes “[r]oadways, travelways, and track
haulageways where persons are scheduled … to work or travel during the oncoming
shift.” 30 C.F.R. § 75.360(b)(1). Moreover, the coal mine safety standards expressly
require daily examination of “[h]oisting equipment, including automatic
elevators, used to transport persons,” and specify what components of the elevators
should be examined. Id. § 75.1400(d), § 75.1400-3; see also id. §
77.1403 (requiring daily examinations of elevators at surface coal mines). The
Secretary could have inserted analogous provisions into Part 56 to ensure that
travelways are examined at the same frequency as working places and that
elevators are included in workplace exams, but he did not. The metal/nonmetal
regulations simply are not structured to treat elevators or travelways the same
as working places. [17]
The Secretary’s proposed interpretation of § 56.18002 conflicts with the
regulatory structure in Part 56.

Aside from conflicting with the
regulations’ dichotomy between working places and travelways, the Secretary’s
definition of “work” is also so broad that, as essentially conceded by the
Secretary, it would render the entire mine a “working place” whenever a miner
is present and on the clock. See Sec’y Br. 17 n.10; Tr. 57, 111, 117. This
would contradict the Secretary’s assurance in the PPM that the phrase “each working
place” refers only to “ those locations at a mine site where persons work
during a shift in the mining or milling processes,” not to every location
at the mine. See Ex. R10 (emphasis added). If the entire mine is a “working
place,” this phrase would cease to be a term of art requiring a special
definition. The Secretary would have had no reason to use it in § 56.18002. Instead
of saying that the operator must “examine each working place at least
once each shift,” he could have simply stated that the operator must “examine the
mine ” each shift. But this is not what the standard says. I am unwilling to
expand the standard to give it such a broad reach without a compelling reason
to do so.

The Secretary
asserts that Cemex ran its elevators into the ground, picking and choosing what
to fix and what not to fix, and asks me to interpret § 56.18002 broadly in
order to further the Mine Act’s safety-promoting goals. Sec’y Br. 13, 17; see
also Island Creek , 20 FMSHRC at 22 (referencing the “well-established maxim
that regulations must be interpreted in a manner consonant with the
safety-promoting purposes of the Mine Act”). But I find it unnecessary to stretch
§ 56.18002 in the manner he suggests, because the Secretary can protect miners
from hazards related to elevators by issuing citations under a variety of other
applicable regulations.

For example, the
Secretary already regulates machinery and equipment under Part 56, Subpart M
and could issue citations under the broadly applicable provisions in this
subpart, such as § 56.14100, which requires miners to inspect self-propelled
mobile equipment before placing it in use and to timely correct any defects. 30
C.F.R. § 56.14100. Automatic elevators fall within the scope of § 56.14100
because they are self-propelled mobile equipment. In fact, the Secretary cited this
provision in this very case to address the defective cam roller and in-use
lights on the pack house elevator. See Ex. R5; Ex. R7.

As another
example, the Secretary has promulgated regulations governing travelways in
Subpart J, including a general provision that mandates: “Safe means of access
shall be provided and maintained to all working places.” 30 C.F.R. § 56.11001. Because
elevators and elevator landings provide access to working places, they could be
cited under this standard if they were not being maintained in safe condition.

As yet another
example, the Secretary has promulgated detailed regulations governing hoisting
equipment in Subpart R, including a provision requiring operators to follow a
“systematic procedure of inspection, testing, and maintenance of shafts and
hoisting equipment.” 30 C.F.R. § 56.19120. The Secretary has successfully
applied this provision to elevators in at least one other case. See Cemex
Inc. , 37 FMSHRC 2886 (Dec. 2015) (ALJ Rae) (granting partial summary
decision on the issue of whether an elevator can be classified as a “hoist”
under § 56.19120 such that it is subject to a systematic procedure of
inspection, testing, and maintenance). Thus, the Secretary can require
operators to adopt inspection, testing, and maintenance procedures for
elevators without adopting a new interpretive rule.

In sum, I find that the Secretary’s new
interpretation of § 56.18002 is not necessary to promote elevator safety,
because other provisions can be applied to elevators to accomplish the same
safety-promoting goals with less violence to the structure of the regulations. Because
interpreting the term “working place” in § 56.18002 to categorically include
elevators is inconsistent with the structure of the regulations and is not
necessary to promote safety, I find that this interpretation is unreasonable
and unpersuasive, and I decline to adopt it.

It may be possible for miners to use an
elevator in such a way that it becomes a working place, that is, a place where
work is being performed, during a particular shift. However, the Secretary has
failed to put on any evidence that the elevators at issue in this case were being
used as working places at the time of the inspection, were scheduled or
expected to be used as working places in the future, or had been used as
working places during any particular shift in the past.

The sole evidence put on by the
Secretary regarding the use of the elevators was Evans’ testimony that he
learned from a company representative that the elevators are used on a daily
basis, as needed, and that the mine “needed to get [the downed elevators] running
again because they have to carry their tools to the – up those flights of
stairs and things, parts and things, you know, just a big inconvenience.” Tr.
55-56. Evans admitted that he did not see any work being performed on or near
the elevators at the time of the inspection. Tr. 73-75. The preheater and mill
room elevators were locked and tagged out and the only miners he saw using an
elevator were at the pack house, but he could not say what sort of work they
were performing or even explain the general function of the pack house. Tr. 50-52,
74-75. He did not describe any past work or future work that he expected to be
performed on or near the elevators. When asked what type of work a miner would
use an elevator for, he responded, “I mean, just to get to the different floors
where they’re working at, you know … otherwise, they have to use the stairways
alongside the building.” Tr. 50. In other words, the miners used the elevators
for travel. Evans did not explain or provide any examples of how miners would
use the elevators to perform work, as opposed to travel. He did not describe
what other items would be transported in elevators and for what purpose, and
could not even identify what work was generally performed at the mine.

The Secretary did not put on any other
evidence to show how the elevators at the Demopolis Plant are used or have ever
been used as working places. I find that the Secretary has failed to establish
that the elevators were used or were expected to be used as “working places”
such that they needed to be included in workplace exams under § 56.18002. Accordingly,
he has failed to establish a violation.

However, regardless of whether or not a
violation occurred, there is another reason that Citation No. 8641317 cannot be
upheld. Cemex did not have fair notice of the Secretary’s new interpretation of
§ 56.18002 before the citation was issued.

B.        Fair
Notice

1.         Legal
Principles

Even if an
agency’s interpretation of a regulation is reasonable, fundamental due process considerations
preclude adoption of that interpretation without fair notice. See Hecla Ltd. ,
38 FMSHRC , Nos. WEST 2012-760-M et al., slip op. at 9 (Aug. 30, 2016); Am.
Coal Co. , 38 FMSHRC , No. LAKE 2009-35, slip op. at 15 (Aug. 30, 2016); Energy
West Mining Co. , 17 FMSHRC 1313, 1317-18 (Aug. 1995); Gen. Elec. Co. v.
EPA , 53 F.3d 1324, 1328-29 (D.C. Cir. 1995). In Mine Act proceedings, this
means that before the Secretary can penalize a mine operator for a violation of
a safety standard, the operator must be placed on notice of what conduct the
standard forbids or requires such that it has an opportunity to act accordingly.
See Hecla Ltd. , slip op. at 9 (“To comport with due process, laws must
‘give the person of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly.”) (citing Grayned v. City of
Rockford , 408 U.S. 104, 108 (1972)); Energy West , 17 FMSHRC at 1318
(same); Mathies Coal Co. , 5 FMSHRC 300, 303 (Mar. 1983) (“[E]ven a broad
standard cannot be applied in a manner that fails to inform a reasonably
prudent person that the condition or conduct at issue was prohibited by the
standard.”), aff’d , 725 F.2d 126 (D.C. Cir. 1984) (table).

To resolve
issues of notice, the Commission applies an objective standard called the
“reasonably prudent person” test. Hecla , slip op. at 9; Sunbelt
Rentals, Inc. , 38 FMSHRC 1619, 1627 (July 2016); Energy West , 17
FMSHRC at 1318. The test is “whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the standard.” Ideal
Cement Co. , 12 FMSHRC 2409, 2416 (Nov. 1990). Many different factors
may be relevant to this inquiry, including the text of the regulation, its
placement in the overall regulatory scheme, its regulatory history and purpose,
the consistency of the agency’s enforcement, whether MSHA has published notices
informing the regulated community with ascertainable certainty of its
interpretation, and whether the operator would have been aware of the
requirement of the standard because of past case precedent. See Sunbelt
Rentals , 38 FMSHRC at 1627; Wolf Run Mining Co. , 32 FMSHRC 1669,
1682 (Dec. 2010); Lodestar Energy, Inc. , 24 FMSHRC 689, 694-95 (July
2002).

2.         The
Parties’ Positions

The Secretary
asserts that Cemex had fair notice that it needed to incorporate elevators and
elevator landing areas into its workplace examinations under § 56.18002. Sec’y
Br. 22-24. The Secretary first suggests that this is not a new interpretation
of § 56.18002. Id. at 22-23. To the extent that the interpretation is
new, the Secretary argues that three factors should have placed Cemex on notice
of the interpretation: the contract between Cemex and TKE; the fatality at the
Louisville plant; and § 56.18002 itself. Id. at 23-24.

Cemex asserts that the citation should
be vacated because the Secretary failed to provide adequate and fair notice of
his new interpretation of § 56.18002, in violation of the U.S. Constitution’s
Due Process Clause. Resp. Br. 19-25. Cemex argues that a reasonably prudent
person would not have known of the Secretary’s new interpretation before the
citation was issued because the Secretary chose “to ambush unknowing operators
and legislate its new requirement through enforcement methods” without first
alerting mine operators to the change through the Secretary’s authorized
representatives or through specific published guidance. Id. at 22. Cemex
also suggests that its employees were acting with reasonable prudence at the
time the citation was issued. Id. at 24.

3.         Analysis

I find that the
Secretary has not met the notice requirement. Contrary to the Secretary’s
argument, his proffered interpretation of § 56.18002 is new. Specialist Evans
admitted that interpreting the standard to cover elevators represents a change
from the agency’s prior position. Tr. 105-06. Evans admitted that before the
March 4, 2014 spot inspection, he had never asked Cemex for examination records
for elevators or their functional analog, stairwells; he had never told Cemex
that such records needed to be kept; and he had never cited Cemex for failing
to designate competent persons to examine elevators or stairwells or for
failing to report elevator defects to management. Tr. 87-89, 97-100, 112-13. In
fact, Evans had never before issued a citation involving an elevator. Tr. 59.

Apparently, MSHA
had not previously paid much attention to elevators at cement plants, and it
was only after the Louisville fatality that MSHA decided to prioritize elevator
safety at these plants. Tr. 21-22, 39. Rather than communicating this decision
to cement plant operators and notifying them of what they must do to improve
elevator safety at their facilities, such as incorporate elevators into
workplace exams, MSHA dispatched inspectors to issue citations, resulting in
Evans’ issuance of the instant citation under a novel theory of violation. In
Judge Barbour’s words, “the agency effectively ‘sandbagged’ the company.” Cemex
Constr. Materials, Atl. , 38 FMSHRC at 846.  

The facts before
Judge Barbour in his Cemex Construction Materials case were nearly
identical to those at issue in this case. On those facts, Judge Barbour concluded
that the mine operator was not properly on notice of the Secretary’s new
interpretation of § 56.18002. 38 FMSHRC at 845-46. He found that the operator
reasonably could have read the standard as not applying to elevators due to the
Secretary’s “total lack of prior enforcement, the broad wording of the
definition of ‘working place’ and the fact that elevators are not specifically
mentioned in the regulations for surface and underground metal and non-metal
mines.” 38 FMSHRC at 846. These factors are equally valid here, and I agree
with his analysis.

Judge Barbour also
rejected the Secretary’s specific arguments that the regulation itself, the
Louisville fatality, and the contract between the mine operator and an elevator
maintenance company would have placed a reasonably prudent operator on notice
of the need to incorporate elevators into its workplace exams under § 56.18002.
Id. at 846-47 n.19. The Secretary has raised the same three arguments in
this case, and they are equally unavailing here.

First, the
regulation itself is so broadly worded that it does not place a reasonably
prudent operator on notice of the Secretary’s purported intent to require
inclusion of elevators and elevator landings in workplace examinations. The Secretary
contends that the regulation provided Cemex with fair notice of this
interpretation because “[u]nder a clear mandate from the standard, an operator
must examine any workplace.” Sec’y Br. 24. However, I have already found
the standard to be ambiguous, not clear, in terms of intended coverage. As the
Commission has noted, the standard was “drafted in general terms.” Sunbelt
Rentals, Inc. , 38 FMSHRC 1619, 1627 (July 2016). Its broad, general terms
do not amount to the sort of “clear mandate” that would notify a reasonably
prudent operator of the specific meaning the Secretary wishes to attribute to
the regulation in this case. [18]

The ambiguity in
the standard would not foreclose a finding of fair notice if the Secretary had
communicated his interpretation of the provision to Cemex before issuing the
citation, such as through specific pre-enforcement warnings to Cemex or guidance
published to the regulated community at large. See, e.g. ,
Consolidation Coal Co. , 18 FMSHRC 1903, 1907 (Nov. 1996) (holding that
operator was on notice of a particular regulatory requirement when management
had been informed of that requirement in seven prior meetings with MSHA), aff’d ,
136 F.3d 819 (D.C. Cir. 1998); Tilden Mining Co. ,36 FMSHRC 1965, 1970-71
(Aug. 2014), aff’d , __ F.3d __, 2016 WL 4254997 (D.C. Cir. Aug. 12,
2016) (holding that operator had received actual notice of an interpretation when
the interpretation in question had been published in the PPM five years before
the citation was issued). However, there is no indication that the Secretary
gave any prior warnings to Cemex. Cemex had never received a citation under the
Secretary’s new interpretation of § 56.18002, and as noted above, Evans
admitted he had never asked Cemex for examination records for elevators or
stairwells and had never suggested such records needed to be kept. Tr. 87-89,
97-100, 112-13. Evans could not point to any MSHA regulations or guidance
documents that suggested that workplace exams performed under § 56.18002 must
include elevators or even travelways. Tr. 89-96, 106-07. As discussed above,
the Secretary has not come forward with any such evidence. [19]
I conclude that the regulation itself, even when considered in light of
relevant guidance from MSHA, is not sufficient to place a reasonably prudent
operator on notice of the specific requirement that the Secretary now seeks to
impose.

Second, I also
find that the Louisville fatality would not have placed a reasonably prudent
operator on notice that elevators should be included in workplace exams under §
56.18002. The fatality should have alerted Cemex that it would be a good idea
to make greater efforts to ensure that its elevators were safe for miners to
use, and perhaps to check the doors on its elevators, since the accident was
caused by a faulty door interlock. Cemex did, in fact, check the doors on all
of its elevators after the fatality (Tr. 90-91, 104; Ex. S7 at 1; Ex. R19), and
apparently took some steps toward improving elevator safety. See Ex. R22;
Ex. R23; Ex. R24. However, there is no reason to expect that, simply because a
fatality involving an elevator occurred, Cemex would know to take the specific
step of incorporating elevators into workplace exams under § 56.18002. Even the
Fatalgram issued by MSHA after the fatality does not name this as a best
practice. Ex. S8; Ex. R9. Accordingly, I reject the Secretary’s argument that
the fatality provided Cemex with fair notice of his new interpretation of the
standard.

Finally, I also
reject the Secretary’s argument that the contract between Cemex and TKE provided
Cemex with fair notice. The contract the Secretary offered into evidence
excludes from TKE’s coverage “cosmetic, construction, or ancillary components
of the elevator,” such as ceiling and door panels, light fixtures, floor
coverings, belowground or unexposed components, and communication devices. Ex.
S10. The Secretary contends that when this contract or one like it went into
effect, Cemex was placed on notice that the listed components were its
responsibility rather than TKE’s. Sec’y Br. 23-24. However, the contract relied
upon by the Secretary did not go into effect until after the inspection, see
Ex. S10, and the Secretary has not established that the contract in effect
at the pertinent time excluded the same components. More importantly, even if the
terms of the contract in effect on the day of the inspection were the same or substantially
similar to those that appear in the contract relied upon by the Secretary,
(which seems likely), those terms provided notice only that Cemex was liable
for maintaining the cosmetic, construction, and ancillary components of the
elevators, not that Cemex would be expected to treat elevators and elevator
landings as “working places” for purposes of § 56.18002. In fact, rather than
alerting Cemex to the need to incorporate elevators into its workplace exam
regimen, I find that the contract likely had the opposite effect. Cemex likely believed
that it was not responsible for conducting regular maintenance examinations of
the elevators because it had delegated its elevator maintenance duties to TKE
by entering into an arrangement which was consistent with industry practice and
Alabama law, and to which MSHA had never objected. See Cemex Constr.
Materials, Atl. , 38 FMSHRC at 846-47 n.19 (“The Secretary states that
Cemex’s contract with Otis put the company on notice that areas not listed in
the contract are Cemex’s responsibility … However, a more reasonable conclusion
is that the long standing nature of the contract … and the lack of any
indication from MSHA that Cemex’s practice of relying on Otis violated any
regulatory provision, led the company logically to conclude its practice did
not run afoul of the Act and Part 56.”).    

The Secretary broadly
asserts that “MSHA simply expected the elevator car and the surrounding landing
area to fall under the exam umbrella especially considering CEMEX inspected the
adjacent stairs, walkways, toeboards, etc.” Sec’y Br. 22. Aside from the fact
that there is no evidence that Cemex ever inspected stairs, walkways, and
toeboards, the record is also devoid of any evidence that MSHA ever actually
expected elevators to fall under the exam umbrella at any point before
Specialist Evans issued the disputed citation. As suggested by Judge Barbour,
this claim seems disingenuous under the circumstances:

Given the
documented history of Secretarial non-enforcement at the plant, the Secretary’s
assertion that “MSHA simply expected the elevator car and the surrounding
landing area to fall under the exam umbrella” rings hollow. A far more likely
scenario is that MSHA never gave a thought to the inspection of elevators under
any standard until after the February 21, 2014, accident [the Louisville
fatality] and then decided that section 56.18002(a) could be stretched to fit
the need.

Cemex Constr.
Materials ,
38 FMSHRC at 846 n.17.

I conclude that
the Secretary attempted to stretch § 56.18002 to cover elevators after the
Louisville fatality, but without providing any sort of signal that would have
led a reasonably prudent person familiar with the mining industry and the
protective purposes of § 56.18002 to recognize, before the citation at issue in
this case was written, that elevators should be incorporated into workplace
exams. Accordingly, Cemex was not provided with fair notice of the Secretary’s
interpretation of § 56.18002, and Citation No. 8641317 must be vacated.

I emphasize that
this conclusion does not mean that miners are left unprotected against hazards associated
with elevators. The Mine Act gives the Secretary multiple avenues to protect
miner safety while still respecting operators’ due process rights. See
Mathies Coal Co. , 5 FMSHRC 300, 303 (Mar. 1983) (rejecting the Secretary’s
particular application of a broad standard to elevators, but describing other
ways that the Secretary “could have accomplished abatement of the hazardous
condition while at the same time avoiding the due process problems posed by
seeking a civil penalty for a violation of a standard that did not provide
adequate notice”). As discussed above, and as occurred in this very case, the
Secretary can cite elevators under existing applicable regulations such as §
56.14001. See, e.g. , Ex. R5; Ex. R7. Also, as always, the Secretary
is free to promulgate more specific standards or guidance notifying operators
of steps they must take to improve elevator safety, such as a PPL specifying under
what conditions he considers elevators to be part of the “working place” and identifying
the components of the elevator that must be examined under § 56.18002. In this
case, even a step as simple as directing an authorized representative to give cement
plant operators a warning before issuing citations may have sufficed to avoid notice
problems. The Secretary instead chose to issue Citation No. 8641317 to Cemex without
fair notice. Because the Secretary could have protected miners through other
means that respected due process, there is no need to validate his issuance of
the citation under these circumstances.

V.        ORDER

For the foregoing
reasons, Citation No. 8641317 is VACATED . Because no issues remain for
adjudication, this docket is DISMISSED .

/s/ Thomas P.
McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Timothy
J. Turner, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Boulevard, Suite 216, Denver, CO 80202-5708

Michael
T. Cimino, Esq. & Adam J. Schwendeman, Esq., Jackson Kelly PLLC, 1600
Laidley Tower, P.O. Box 553, Charleston, WV 25322

[1] The cited
standard states: “A competent person designated by the operator shall examine
each working place at least once each shift for conditions which may adversely
affect safety or health. The operator shall promptly initiate appropriate
action to correct such conditions.” 30 C.F.R. § 56.18002(a).

[2] Exhibits S1
through S11 and Exhibits R1 through R27 were received into evidence at the
hearing. Tr. 10-14, 70, 122. The abbreviation “Tr.” refers to the hearing
transcript. The MSHA representative who issued the disputed citation was the
sole witness to testify.

[3] Evans began his
career in the mining industry as an underground coal miner. He worked for 31
years as an inside laborer, electrician, and eventually a maintenance
supervisor. He was hired by MSHA in 2008, and became an inspector for the
agency in 2009, after undergoing training in Beckley, West Virginia. In 2012, he
became a Safety Specialist, which did not require any specialized training. His
job duties include accident investigation, reporting, and follow up; handling
mine rescue competitions; and reviewing records such as impoundment plans, mine
maps, ventilation plans, and escape and evacuation plans. Tr. 32-38.

[4] Evans, the sole
witness, was unsure whether “silo” was a reference to the mill room or the pack
house. Tr. 49, 51. Cemex has indicated that “silo” is another name for the pack
house. Resp. Br. 16. This makes sense because both terms refer to buildings
used for storage.  

[5] Invoices submitted
by Cemex confirm that TKE was called out to the mine to perform repairs on
numerous occasions during the one-year period preceding the spot inspection. Ex.
R18.

[6] This assertion
is supported by a notation in a March 11, 2014 email sent to Cemex by a TKE
representative. The email proposes to increase the number of maintenance visits
each year from quarterly to monthly. Ex. R21. As noted above, Cemex and TKE
ultimately entered into a contract on April 1, 2014 providing for six
maintenance visits per year. Ex. S10.

[7] An annual
inspection had not been performed in 2013 due to a billing issue, even though
TKE had submitted a quote for it. Ex. S7 at 4, 7. Exhibits R20 and S11 contain
quotes sent from TKE to Cemex for big-ticket items, including two quotes
submitted in September 2013 and January 2014 for a “safety inspection”
consisting of “no load safety tests.” If purchased, the safety inspection would
have cost Cemex more than a years’ worth of regular contract fees. Compare Exs.
R20 & S11 with Ex. R17. It seems likely that this is the “annual
inspection” to which Evans was referring when he mentioned the billing dispute
in his field notes. Such safety inspections are therefore separate from any
regular, periodic maintenance examinations contemplated under the contract.

[8] Although Evans
testified that the defective doors were located on the fourth and eighth
floors, his field notes from the day of the inspection indicate that they were
actually located on the sixth and eighth floors. Ex. S7 at 2-3.

[9] Exhibit R5 is
the citation issued for the cam roller (Citation No. 8641319) and Exhibit R7 is
the citation issued for the in-use lights (Citation No. 8641320). These two citations
were initially included in this case ( see Ex. S4), but settled prior to
hearing.

[10] Exhibit R1 contains
a copy of Citation No. 8810886, which was issued on February 11, 2014, after an
elevator entrapment occurred at the mine. The citation was initially included
in this docket ( see Ex. S4), but settled prior to hearing. The citation
alleges that Cemex violated 30 C.F.R. § 46.7(a) by instructing two miners to
rescue the person, who was trapped in the elevator, even though the miners had
not received task training for this job. Ex. R1. Because a trained elevator
mechanic was not immediately available to free the trapped person, the miners
had freed him on their own, relying on instructions relayed by a TKE
representative over the phone. Ex. R1; Ex. R2.

[11] Thus, SmithKline
Beecham can be viewed as extending Skidmore deference from the
statutory interpretation context to the regulatory interpretation context. The
difference is that in the statutory interpretation context, Skidmore deference
is triggered by the conditions set forth in Mead , while in the
regulatory interpretation context, it is triggered by a finding under SmithKline
Beecham that the agency’s proffered interpretation may not represent its
fair and considered judgment. Compare Mead , 533 U.S. at 226-27, 234-35
(providing for full Chevron deference only “when it appears that
Congress delegated authority to the agency generally to make rules carrying the
force of law, and that the agency interpretation claiming deference was
promulgated in the exercise of that authority,” and Skidmore deference
in all other contexts), with SmithKline Beecham , 132 S. Ct. at 2166-69. If
the agency’s regulatory interpretation is unreasonable, plainly erroneous, or
inconsistent with the regulation, courts presumably need not accord it any
deference at all under either Auer or Skidmore . See, e.g. ,
Drilling & Blasting Sys. , 38 FMSHRC at 194-97; Twentymile , 36
FMSHRC at 2012-13.

[12] The Secretary
further takes the position that an elevator shaft is a “working place” for any contract
workers who are servicing the elevator’s internal workings, obligating the
contractor to conduct workplace exams of the shaft. Sec’y Br. 15 n.9. I need
not address this contention, as neither the contractor nor Cemex were cited for
failing to examine elevator shafts.

[13] Judge Barbour
held that an exam must be performed on or during a shift when work is being
performed, is assigned to be performed, or is reasonably expected to be
performed. Cemex Constr. , 38 FMSHRC at 839.

[14] Judge Barbour
held that the operator must examine the places where work is being or will be
performed, noting that the standard “is directed at the examination of ‘each
working place’ not at a generic type of working place, i.e., ‘the elevators.’” Id.
at 840.

[15] The testimony
of the Secretary’s sole witness, Specialist Evans, is self-contradictory in
some respects and ultimately unclear. For example, Evans testified at one point
that he considered the whole mine to be a working place, but later essentially
recanted this testimony. Tr. 57, 77. He failed to offer a clear theory as to
whether and when § 56.18002 applies to elevators and, more generally, to
travelways, defined under § 56.2 as “passage[s], walk[s] or way[s] regularly
used and designated for persons to go from one place to another.” He first
stated that the operator should keep exam records for elevators for every shift
when they are in use, or for stairways if they are used instead, but later conceded
that travelways are not covered under the workplace exam regulation and that he
believes an elevator is a “working place” only if someone is working on the
elevator or near the doors. Tr. 67, 75-76, 107.

The Secretary’s brief clarifies that he
prefers a broad definition of “work” and “working place.” However, the rule he
ultimately settles on is so open-ended that it is unclear, and likely will be
difficult for operators to apply going forward to determine what areas of a
mine need to be examined and when they need to be examined. See Sec’y
Br. 17 (“Finally, if there is even a reasonable expectation of work taking
place, essentially anywhere in the Mine, including the elevator car and landing
areas – that is, if there is a reasonable expectation of a miner engaging in an
activity where he exerts himself to perform some task, duty, function, or
assignment as part of a greater phase or larger task – it does not matter if it
is performed daily, weekly, or even infrequently, if he is doing it, intends to
do it, or if there is a reasonable expectation he will do it, the operator must
designate a competent person to perform a workplace exam.”).

[16] I note that
although the Secretary’s new interpretation has already been addressed in two
other cases, Ash Grove Cement Co. , 38 FMSHRC __, Nos. WEST 2014-963 et
al. (Aug. 4, 2016) (ALJ), and Cemex Construction Materials, Atlantic , supra ,
the citation at issue in the instant case was written before the citations at
issue in those cases.  

[17] This makes
sense in some ways. Mining poses unique hazards. However, these hazards are
more likely to be present in places were the actual “work” of mining takes
places – that is, where miners engage in mineral extraction and milling tasks –
than in places that are simply traveled through by miners, especially at
facilities where ventilation and roof control are not a concern. Thus, for
example, one of the safety standards in Part 56 requires “areas where work is
to be performed” to be examined for loose ground more frequently than
“[h]ighwalls and banks adjoining travelways.” 30 C.F.R. § 56.3401. The
Secretary explained in his rulemaking notice that he was drawing this
distinction because he expected ground conditions to change more rapidly in
areas where work was being performed than along travelways and haulageways. Final
Rule: Safety Standards for Ground Control at Metal and Nonmetal Mines, 51 Fed.
Reg. 36192 (Oct. 8, 1986). This seems to represent a policy judgment that
active work areas pose greater dangers than travelways, and therefore warrant
more frequent examination.

[18] Usually, in
cases where the Commission has found that a regulation itself provides fair
notice of the Secretary’s interpretation, the standard either expressly
mandates or clearly indicates the interpretation. For example, in Austin
Powder Company , the Commission found that the language of a regulation placed
the operator on notice that a detonator must be stored in a magazine because
the regulation expressly mandated that “[d]etonators … shall be stored in
magazines.” 29 FMSHRC 909, 919-20 (Nov. 2007). As another example, in Bluestone
Coal Corporation , the Commission held that a regulation requiring equipment
operating speeds to be “prudent” provided fair notice that unsafe speeds were
prohibited because the meaning of the standard was clear. 19 FMSHRC 1025,
1030-31 (June 1997). Similarly, in Sunbelt Rentals , the Commission held
that § 56.18002 includes an adequacy requirement for workplace examinations,
even though this requirement is not expressly stated, because otherwise the
purpose of the standard would be thwarted. 38 FMSHRC at 1627. As discussed at
length above, unlike in these example cases, in this case there is no express
regulatory mandate or clear indication that elevators must be included in
workplace examinations.

[19] To drive home
the point, Cemex has introduced into evidence relevant portions of the PPM and
the Metal/Nonmetal General Inspection Procedures Handbook, along with a PPL
addressing § 56.18002 that was in effect at the time of the inspection, to show
that none of these sources mentions the Secretary’s new interpretation of the
standard. See Ex. R10; Ex. R11; Ex. R15. I also note that, as discussed
above, the standard’s regulatory history does not contain any mention of
elevators and does not suggest that travelways must be examined.