Nolichuckey Sand Company, Inc.

Plain-English summary

Nolichuckey Sand contested six identical citations alleging that conveyors were unguarded under 30 C.F.R. § 56.14109. The Commission had remanded the case for the Secretary to provide an authoritative interpretation of the term “unguarded,” for the judge to decide whether the interpretation was reasonable and whether Nolichuckey had notice, and, if necessary, to consider the standard’s stop-cord and railing options. Judge Avram Weisberger found the Secretary’s interpretation reasonable and entitled to deference, but found that Nolichuckey had not been given notice of that interpretation before the citations were issued. He sustained the contests and dismissed all six citations.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14109
• Outcome: The six conveyor citations were dismissed after the notices of contest were sustained.
• Key point: An operator may not be held responsible for violating an ambiguous standard based on an agency interpretation of which the operator lacked notice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                          OFFICE OF ADMINISTRATIVE LAW JUDGES
                                  2 SKYLINE, 10th FLOOR
                                   5203 LEESBURG PIKE
                              FALLS CHURCH, VIRGINIA 22041



                                     February 9, 2001

NOLICHUCKEY SAND COMPANY, : CONTEST PROCEEDINGS
INC., :
Contestant : Docket No. SE 99-101-RM
v. : Citation No. 7777862; 1/28/99
:
SECRETARY OF LABOR, : Docket No. SE 99-102-RM
MINE SAFETY AND HEALTH : Citation No. 7777863; 1/28/99
ADMINISTRATION (MSHA), :
Respondent : Docket No. SE 99-103-RM
: Citation No. 7777864; 1/28/99
:
: Docket No. SE 99-104-RM
: Citation No. 7777865; 1/28/99
:
: Docket No. SE 99-105-RM
: Citation No. 7777866; 1/28/99
:
: Docket NO. SE 99-106-RM
: Citation No. 7777867; 1/28/99
:
: Pit No. 436
: Mine ID 40-00806

                                       DECISION

Before: Judge Avram Weisberger

Appearances: Adele L. Abrams, P.C., Calverton, Maryland, for the Contestant;
Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department of Labor,
Nashville, Tennessee, for the Respondent.

      Introduction

   These cases are before me based upon a decision of the Commission in this matter, 22

FMSHRC 1057 (September 2000) which vacated my initial decision, 21 FMSHRC 681 (June
1999), and remanded for “further consideration”.

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    At issue in this proceeding is the validity of six identical citations, each alleging a violation

of 30 C.F.R. Section 56.14109, which, as pertinent, provides that “unguarded” conveyors be
equipped with either emergency stop devices or railings. In essence, it is the position of
Nolichucky that the threshold requirement of Section 56.14109 was not met, since the conveyors
were not unguarded, as they were all equipped with structural trusses measuring at least forty-two
inches in height.

    In its decision the Commission, noted that the term “unguarded” was not defined in 30

C.F.R. Part 56, subpart M, and that there was “... nothing in the Legislative History of Section 56.
14109 provides guidance in determining whether the cited conveyors should be considered
unguarded.” (22 FMSHRC supra at 1062.) In addition, the Commission noted that “... the
Secretary’s witnesses failed to present a coherent interpretation of when a belt is considered
‘unguarded’ “(22 FMSHRC supra at 1062.) In this connection, the Commission noted the
testimony of MSHA Inspector Hobbs that “if a conveyor is high enough to where it doesn’t create
a hazard, then a railing or stop-cord does not have to be provided”, and the Secretary’s stipulation
that previous inspectors had treated all of Nolichucky’s belts as complying with the standard
because the belts were equipped with forty-two inch trusses. (22 FMSHRC supra at 1062). The
Commission also noted a statement in the Secretary’s Program Policy Manual that “... the
conveyor installation or framework cannot be considered an allowable guard even though it may
conform to the standard railing height of forty-two inches. IV MSHA, U.S. Department of
Labor, Program Policy Manual, Part 56/57 at 55a - 55b (1991)”. (22 FMSHRC supra at 1062).
The Commission took cognizance of its prior holding that, ... “when interpreting an ambiguous
regulation, differences normally owed to the Secretary’s litigation position before the
Commission. Akzo Noble Salt, Inc. v. FMSHRC, 212 F 3rd 1301, 1304(D.C.) Cir. 2000.” (22
FMSHRC supra at 1062).

    In its Remand, the Commission specifically directed the undersigned “... to secure from

the Secretary an authoritative interpretation of what constitutes an unguarded conveyor within the
meaning of 56.14109 ... . Upon obtaining the Secretary’s interpretation, we direct the Judge to
apply traditional principles of regulatory interpretation to determine if the Secretary’s
interpretation is reasonable and entitled to deference.” Further, the Commission, directed as
follows: “[a]fter obtaining the Secretary’s interpretation, the Judge, on remand, must decide
whether the operator was on notice of the regulation’s requirement. In addressing the notice
issue, the Judge must also reconcile the Secretary’s claim that Inspector Hobbs provided actual
notice to the operator, with her claim that it is unreasonable for operators to rely on the oral
assertions of MSHA inspectors when applicable regulations and government manuals provide
notice of the operators’ obligations.” (22 FMSHRC supra at 1063). Finally, the Commission
ordered that if it is found that the threshold requirements of Section 56.14109 supra exist, then
the undersigned “must examine both the stop cord and railing compliance options set forth in
subsections (a) and (b) of the standard.” (22 FMSHRC supra at 1063).

  The Secretary’s “authoritative interpretation” of what constitutes an unguarded

conveyor within the meaning of Section 56.14109.

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    Pursuant to a directive of the undersigned to the Secretary, as set forth in a conference call

with counsel for the Secretary and counsel for Nolichucky, the Secretary’s counsel filed a
Program Information Bulletin No. P00-15 (“bulletin”) (“issue date” October 23, 2000). In a
statement filed with the bulletin, the Secretary’s counsel indicated that this bulletin “has been
issued by the Secretary in response to the Commission’s Remand Order of September 15, 2000.”
The bulletin, which states that it is from Earnest C. Teaster, Jr., Administrator for Metal and Non-
Metal Safety and Health, sets forth that it “... restates the Secretary of Labor’s ‘authoritative
interpretation’ of 30 C.F.R. Section 56.14109(a) and (b)(1) . ... [and that] “[t]he Secretary’s
authoritative interpretation is the interpretation stated in the Mine Safety and Health
Administration (MSHA) Program Policy Manuel (volume IV, parts 56 and 57, subpart M, 55a -
55b (June 18, 1991)).” Specifically, the bulletin states that it is restating language from the PPM
which “provides that neither the conveyor installation or framework can be considered an
allowable guard, irrespective of its height or its conformance with standard railing heights. The”
record indicates that the bulletin the Secretary has filed, sets forth that the Secretary’s
authoritative interpretation of Section 56.14109 supra, is the interpretation set forth in its
Program Policy Manual. Hence, the PPM is the Secretary’s authoritative interpretation of Section
56.14109 supra.

   The Secretary’s interpretation is reasonable and entitled to deference.

    In general, deference is warranted only when the language of the regulation is ambiguous

Auer v. Robbins, 519 U.S. 452 (1997). In its decision, the Commission, in its discussion of the
law regarding deference, and prior to setting forth the scope of its remand relating to obtaining
from the Secretary an “authoritative interpretation”, referred to Akzo Noble Salt, supra, which
held that deference is normally owed to the Secretary’s position before the Commission, “when
interpreting an ambiguous regulation.” (Emphasis added). (22 FMSHRC supra at 1062) In this
connection, the Commission noted that the term “unguarded” was not defined in the regulation,
and that the Legislative History of Section 56.14109 not provide any guidance in determining
whether the conveyors be considered unguarded. I thus conclude that the Commission’s decision
sets forth, as the rule in this case, that the cited standard regarding the scope of the term
“unguarded” was ambiguous. Hence, in the case at bar, deference is warranted.

     The Secretary’s interpretation that the conveyor belt was not guarded by the forty-two

inch structural truss, is in harmony with the common meaning of the term “guarded”, and the
meaning of that term in the mining industry. Thus, the Dictionary of Mining, Mineral and
Related Terms (“DMMRT”) (1968 edition), defines “guarded” as, pertinent, as follows: “...
covered, shielded, fenced, enclosed, or otherwise protected by suitable covers or casings, barrier
rails, screens, or mats or platforms to remove the likelihood of either dangerous contact or
approach by persons or objects to a point of danger.” In the same fashion, Webster’s Third New
International Dictionary (1993 Ed.) (“Webster’s”), defines “unguarded”, as pertinent, as “1 a:
unprotected by a guard ... .”. “Guard”, as pertinent, is defined in Webster’s as “6: a fixture or
attachment designed to protect or secure against injury ... .” Thus, under both the common

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meaning of the term “unguarded”, and its meaning in the mining industry, the structural truss,
which does not cover or shield the conveyor, and which is not been shown to have been designed
to protect against injury, would still leave the conveyor unguarded. Hence, the Secretary’s
interpretation is reasonable.

    Nolichucky’s argument that since the Secretary’s interpretation, as set forth in the PPM

was not arrived at after a formal adjudication, or notice and comment rule making, it is entitled
only to respect and is not entitled to deference, is without merit. Nolichucky’s reliance on
Christensen v. Harris County, 529 U.S. 576, (2000), is misplaced. In Christensen, supra, the issue
was whether deference should be accorded an interpretation by an agency of a statute where the
interpretation is set forth in a policy document. In contrast, in the case at bar, as in Auer v.
Robbins, 519 U.S. 452 (1997), the issue presented was whether an agency’s policy statement
interpreting its own regulation should be given deference. In Auer, supra, it was held that an
agency’s interpretation of its own regulation is entitled to deference. 519 U.S. supra, at 461.
Thus, under Auer supra, the Secretary’s authoritative interpretation, set forth in the PPM, is
entitled to deference.

   The operator was not on notice of the regulation’s requirements.

    It is the law of this case, as established by the Commission, that the cited standard is

ambiguous i.e., as to whether, under the regulatory standard, the conveyor at issue, whose
structural trusses were forty-two inches in height, were still unguarded, and hence within the
perview of the requirements of Section 56.14109 supra. The Secretary’s authoritative
interpretation of this standard, as set forth in the PPM, appears to have been issued on June 18,
1991. There is no evidence that Nolichucky had either knowledge or notice of the terms of the
PPM. I note the Secretary’s assertion that MSHA Inspector Hobbs provided Nolichucky with
actual notice on January 1999 that the conveyors were not in compliance with Section 56.14109
supra, since they had neither railings nor stop cords. However, I do not find much merit in this
argument, considering the Secretary’s stipulation that

           . . . statements were made to Mr. Bewley or citations were not
           issued for violations of that standard in the past based upon this 42-
           inch built structure interpretation meaning that that would be
           sufficient to constitute a guard for the purpose of that standard. In
           other words, the standard refers to unguarded conveyors, and
           apparently inspectors, in the past, Mr. Nichols’ predecessor in the
           position of field office supervisor apparently okayed or acquiesced
           in that interpretation. (Sic.) (Tr. 26-27).

    Thus, although Nolichuckey had been informed by Inspector Hobbs on January 19 that the

conveyors were not in compliance with Section 56. 14109 supra, and citations for these
conditions were issued nine days later, there is no evidence that Nolichuckey, prior to the date
cited, had notice of the authoritative interpretation of the Secretary as set forth in the PPM.

                                             4

Further, it is significant to note that Nolichuckey had been informed in the past by MSHA
inspector that the conveyors at issue were in conformity with Section 56, 14109(a) because the
forty-two inch structural truss constituted a sufficient guard, and that the MSHA Field Office
Supervisor acquiesced in this interpretation. Thus, it can not be found under these circumstances
that Nolichuckey had notice of the Secretary’s authoritative interpretation set forth in the PPM.
Indeed, even the Commission noted, 22 FMSHRC supra at 1063, that “... we do not know what
the Secretary’s interpretation of the regulation is or what it requires, ... .” . If the Commission,
after reviewing the record in this case had no knowledge of the Secretary’s interpretation of the
regulation or what it requires, then certainly, a fortiori, it would be a deprivation of due process to
hold that Nolichuckey, prior to litigation of this matter, and, on the date cited, had notice of the
Secretary’s authoritative interpretation of the cited standard, and what it required.

   Conclusion

    Since it is the law of the case that the cited standard was ambiguous, the Secretary’s

interpretation is entitled to deference. However, since Nolichuckey did not have notice of the
Secretary’s authoritative interpretation, it can not be held responsible for having violated the cited
standard (See Phelps Dodge Corp. v. FMSHRC, 681 F 2nd 1189 (9th Cir. 1982).

                                          ORDER

    It is Ordered that the notices of contest are sustained, and that the citations at issue

served to Nolichuckey on January 28, 1999 be Dismissed.

                                           Avram Weisberger
                                           Administrative Law Judge

Distribution: (Certified Mail)

Adele L. Abrams, P.C., 4061 Powder Mill Road, Suite 700, Calverton, MD 20705

Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215-2862

sct

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