Secretary of Labor v. Sunbelt Rentals, Inc.; LVR, Inc.; and Roanoke Cement Co., LLC

Plain-English summary

Sunbelt Rentals erected scaffolding inside Roanoke Cement's preheat tower for maintenance contractor LVR. A Sunbelt supervisor examined the sixth level and visually inspected the seventh level without using an exterior doorway that revealed accumulated material above the work area; later that shift, falling material knocked a Sunbelt employee unconscious. MSHA cited all three companies under the workplace-examination standard, but the Judge dismissed the citations after concluding that the rule did not require an adequate examination and that the companies lacked notice of such a requirement. The Commission vacated the dismissals and held that a compliant examination must identify conditions affecting safety or health that a reasonably prudent competent examiner would recognize. It also held that the companies had fair notice of that adequacy requirement, denied LVR and Roanoke's request to leave the case, and remanded to determine whether the seventh level was a working place and whether the examination met the standard. Commissioners Young and Cohen would have dismissed LVR and Roanoke because their citations did not clearly allege failure to ensure Sunbelt's examination.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.18002(a)
• Outcome: Summary dismissal of all three citations was vacated, LVR and Roanoke remained parties, and the case was remanded for factual findings on the working place and the examination.
• Key point: A workplace examination by a competent person must be meaningful enough to identify safety or health conditions that a reasonably prudent competent examiner would recognize.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE NW, SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY OF LABOR,                           
 :                         

MINE SAFETY AND HEALTH                    :                   

ADMINISTRATION (MSHA)                       :       
Docket Nos. VA 2013-275-M

:                                VA
2013-276-M

:                                VA 2013-291-M

v.                                                                                      :

:                                   

:                              

SUNBELT RENTALS, INC.; LVR, INC.;                :                                

and ROANOKE CEMENT CO., LLC            :

BEFORE: Jordan, Chairman; Young,
Cohen, Nakamura, and Althen, Commissioners

DECISION

BY: Jordan, Chairman,
Nakamura, and Althen, Commissioners

These civil
penalty proceedings arise under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act”) and involve three citations issued
to Sunbelt Rentals, Inc. (“Sunbelt”), LVR, Inc. (“LVR”), and Roanoke Cement
Co., LLC (“Roanoke”) by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”). All three
citations allege a violation of 30 C.F.R. § 56.18002(a), which requires
the operator’s designated examiner to examine each working place at least once
each shift for safety and health hazards.[1]
Sunbelt, LVR, and Roanoke were each cited for failing to adequately examine a
workplace.

The
assigned Administrative Law Judge dismissed the three citations because he
found that the Respondents[2]
had met the requirements of section 56.18002(a). In this regard, the Judge
found that the standard does not require an “adequate” workplace exam and that
the Respondents, in any event, lacked notice of such an “adequacy” requirement.
35 FMSHRC 3208, 3214-15 (Sept. 2013)
(ALJ).

The
Secretary filed a petition for discretionary review of the Judge’s decision,
which we granted. LVR and Roanoke subsequently filed a motion to be dismissed from
these proceedings.[3]

For the reasons
that follow, we deny LVR and Roanoke’s motion and vacate and remand the Judge’s
decision as to all three citations.

I.                  

Factual and Procedural Background

Roanoke operates a preheat[4]
tower comprised of six vertically connected conical vessels (“cyclones”) which
process heated limestone material. LVR contracted with Roanoke to perform
annual pre-heat tower maintenance. Sunbelt contracted with LVR to erect
scaffolding within the tower so LVR could perform its annual maintenance.

The tower contains an exterior staircase, which can be used to
access a small two-foot by two-foot door at the seventh level. By looking
through this doorway, one can examine the seventh level. On January 8, 2013,
Sunbelt, the subcontractor, was planning to erect scaffolding at the sixth
level of the pre-heat tower. At the start of the shift, Kendrick Lavon Davis,
who has supervised scaffold erection projects for Sunbelt for the prior seven
years, examined the sixth level. While on the sixth level of the tower, Davis
also visually inspected the seventh level. However, Davis did not climb the external
staircase and look through the small doorway at the seventh level.

During the shift on January 8, 2013, unspecified falling
material knocked a Sunbelt employee, Brian Tyler, unconscious while he was
working in the pre-heat tower. Subsequently, MSHA Inspector David Nichols
looked through the aforementioned two-foot doorway into the seventh level and
observed a buildup of material which could have fallen through a six-foot long
hole between the sixth and seventh levels, above where Tyler was working.

Inspector Nichols issued three citations, one each to Sunbelt,[5] LVR,[6]
and Roanoke.[7]
The proposed penalty assessments were $51,900, $47,300 and $52,500
respectively. The inspector specified that each of the Respondents in question
violated section 56.18002(a) due to its failure to “adequately” inspect the
seventh level of the pre-heat tower, the area above where the employees were
working.[8]

II.               

The Judge’s Decision

Before the hearing, the
Secretary filed a motion for partial summary decision, Sunbelt filed a
cross-motion for summary decision, and LVR and Roanoke filed a joint
cross-motion for summary decision. 35 FMSHRC at 3209. Based on his
findings, the Judge granted the Respondents’ cross-motions for summary
decision, and dismissed the proceedings. 

The
Judge found that the standard does not require that the workplace exam be
“adequate.” Instead, the Judge found that the competent person designated by
the operator must simply conduct a workplace exam, although a failure to
identify “numerous,” “obvious,” or “egregious” hazards would equate to a
failure to conduct the exam. Id. at 3215 n.7. The Judge concluded that
Davis had conducted the required workplace exam; that Sunbelt, LVR and Roanoke had designated
Davis to examine the workplace; and that Davis was “competent” based on his
experience and qualifications. Id. at 3215. However, the Judge
speculated that Davis may have been negligent when conducting the workplace
exam. Id..

The Judge dismissed LVR
and Roanoke from these proceedings, rejecting “any . . . argument that [s]ection
56.18002[a] imposes a duty on multiple operators to perform multiple
examinations of the same working place when the examination has already been
done by a competent person.” Id. at 3214. The Judge also found that all
three Respondents lacked notice that the standard required “adequate” workplace
exams. Id. at 3215.

The
Judge briefly discussed whether the seventh level was a “working place” as the
term is used in the standard but did not resolve that question. Id. at
3213-14.

III.            

Post-Decisional Proceedings

The
Secretary’s Petition for Discretionary Review (“PDR”) raised the following
issues: (1) whether the Judge erred in ruling that 30 C.F.R. § 56.18002(a) does not require that workplace
examinations be “adequate,” (2) whether the Judge erred in ruling that
Respondents lacked fair notice that the standard requires “adequate” workplace
exams, and (3) whether, if the standard contains an “adequacy” requirement, the
Judge erred in ruling that there was no issue as to any material fact and that
Respondents were entitled to judgment as a matter of law. The PDR maintained
that an “adequate” exam had not been conducted but did not define the term
“adequate” in the context of workplace exams under the standard.

A.   
LVR and
Roanoke’s Motion

After the Commission issued its Direction for Review, LVR and
Roanoke filed a motion requesting that the Commission dismiss them from these
proceedings. See Motion To Drop
Respondents Roanoke Cement and LVR For Misjoinder and Dismiss Docket Nos. VA
2013-276-M and VA 2013-275-M. LVR and Roanoke contend that they were not cited
under a theory of strict liability for failing to ensure that Sunbelt had
conducted an “adequate” workplace exam. Instead, they claim they were cited
independently of Sunbelt’s actions because allegedly they themselves did not
conduct independent “adequate” workplace exams. They claim that the Judge, when
discussing whether the standard imposes a duty on multiple operators to perform
multiple exams of the same workplace, found a second independent workplace exam
of the same area to be unnecessary even if the first workplace exam was so
flawed that it violated the standard. Based upon these premises, they assert that
the Secretary’s PDR failed to appeal the ruling by the Judge regarding the duty
to conduct multiple exams.

In
response, the Secretary maintains that the Judge dismissed LVR and Roanoke from
these proceedings because he found that Sunbelt’s exam satisfied the standard’s
requirements as interpreted by the Judge. According to the Secretary, because
the Judge’s dismissal of the citations against LVR and Roanoke was premised
upon no violation by Sunbelt, the vacation of the dismissals against them is
necessarily implicated by the Secretary’s challenge presented to the
Commission. The Secretary asserts that if the standard requires “adequate”
workplace exams, the Judge must reconsider his finding that Sunbelt’s exam met
the standard’s requirements and, therefore, also must reconsider his dismissals
of LVR and Roanoke.

B.    
The Meaning of the Term “Adequate”
as Applied to the Standard

The Secretary
did not define the term “adequate” before the Judge or in his PDR. During oral
argument before the Commission, the Secretary sought to rectify this omission
and stated that a workplace exam under the standard is “adequate” “if it is
reasonably likely to identify conditions which may adversely affect safety and
health.” Oral Arg. Tr. 9-10. After oral argument in this case, the Secretary
requested an opportunity to file a supplemental brief, whereupon the Commission
ordered Sunbelt and the Secretary to file supplemental briefs. In his supplemental
brief, the Secretary asserted that a workplace exam is “adequate” if the
“operator’s examiner [identifies] all of the conditions that a reasonably
prudent examiner would identify that may adversely affect safety and health.” S.
Supp. Br. at 5-6.

Sunbelt
responded that we should reject the Secretary’s interpretation of the term
“adequate” because it was provided unfairly for the first time on appeal during
oral argument and that, in any event, it is not entitled to deference. Sunbelt
further contends that it did not receive fair notice of the proffered
definition. Furthermore, an independently sufficient basis supports affirmance
of the Judge’s decision.

IV.            

Disposition

A.   
LVR and Roanoke’s Motion
to Dismiss[9]

We
deny LVR and Roanoke’s motion to dismiss. It is well established that MSHA has
discretion to cite production-operators for violations of mandatory safety
standards committed by their independent contractors on the mine site. Speed Mining, Inc. v.
Fed. Mine Safety & Health Review Comm’n, 528 F.3d 310, 314 (4th Cir.
2008) (the Secretary has discretionary authority to cite the operator, the
independent contractor, or both for an independent contractor’s violations); Sec’y
of Labor v. Twentymile Coal Co., 456 F.3d 151, 157-58 (D.C. Cir. 2006) (the
Secretary has unreviewable discretion to cite production-operator, the
independent contractor, or both, for contractor violations); see also Bituminous
Coal Operators’ Ass’n v. Sec’y of Interior, 547 F.2d 240 (4th Cir.
1977) (finding that under the Coal Act of 1969, the Secretary may hold a mining
company liable for violation committed by its construction company).

Moreover, we have no doubt that the inspector knew that Sunbelt
was the entity responsible for the examination but found that a violation by
Sunbelt also implicated LVR and Roanoke.[10]
It is not reasonable to think that the inspector in this case would have cited
LVR and Roanoke if Sunbelt’s examination complied with the examination
standard. It simply is not plausible for us to believe, or for LVR or Roanoke
to contend, that had the inspector been present during the inspection and found
the examination to be adequate, the inspector would have cited LVR and Roanoke
for failing to conduct simultaneous inspections.[11] Such a claim is not the gravamen of the
citation.[12]

Because the Judge decided the case upon summary judgment, there is
no hearing record supporting theories of liability or defense. However, in
reviewing the Judge’s decision, it appears that the Judge’s dismissal of LVR
and Roanoke was based upon his finding that Sunbelt had not violated the
standard. Specifically, the Judge rejected
“any . . . argument that [s]ection 56.18002[a] imposes a duty on multiple
operators to perform multiple examinations of the same working place when
the exam has already been done by a competent person.”[13]
35 FMSHRC at 3214 (emphasis added).

Thus,
the Judge expressly linked his dismissal of LVR and Roanoke to his finding that
Sunbelt complied with the mandatory safety standard. In effect, the Judge
recognized that the validity of the citations against LVR and Roanoke was
inextricably intertwined with the citation to Sunbelt. That being the case, our
review of the Sunbelt citation necessarily is relevant to the dismissals of LVR
and Roanoke.[14]

We
deny LVR and Roanoke’s motion to dismiss.[15]

B. Interpretation of 30 C.F.R. § 56.18002(a)

The principal issue before the
Commission is the extent to which section 56.18002(a) creates substantive
requirements for the conduct of an examination pursuant to that section. The
Judge found the section does not require that the workplace examination be
“adequate.” Instead, the Judge held merely that an examiner’s failure to
identify “numerous,” “obvious,” or “egregious” hazards might equate to “failure
to perform the requisite exam.” Id. at 3215 n.7. The Judge’s holding
that the examination need not be adequate was erroneous. Accordingly, we vacate
his decision.

We do not agree that the operator must
only examine the workplace to a standard of care slightly surpassing not
conducting the examination at all. Section 56.18002(a) consists of only two
sentences. The first sentence requires that “[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.” 30 C.F.R. §
56.18002(a). The requirement that the operator designate a “competent person”
to conduct the examination must mean that there will be substance to the examination.
Many miners could detect “obvious” or “egregious” hazards. The requirement that
a competent person examine the working place certainly raises the substantive
requirement for the examination to the level of a meaningful examination.

The second sentence of section 56.18002(a)
mandates that, “[t]he operator shall promptly initiate appropriate actions to
correct such conditions.” Id. Therefore, this sentence requires the
correction of the conditions referred to in the preceding sentence –
“conditions that may adversely affect safety or health.” By doing so, it sets
forth the substantive requirement for the examination. The examination is to
identify “conditions that may affect safety or health.”[16]
Id.

Having determined that under the
standard, the examination must be adequate, we must articulate the appropriate test
for such an examination. We conclude that the application of the “reasonably
prudent” miner test is appropriate here. U.S. Steel Mining Co., LLC, 27 FMSHRC 435, 439 (May 2005). Before the Judge and in his PDR, the Secretary argued
that workplace exams must be “adequate” but failed to define that term. In his
supplemental brief on appeal, the Secretary argued that to be “adequate” the workplace
examination “must identify all of the
conditions that a reasonably prudent
examiner would identify
that may adversely affect safety and health.” S. Supp. Br. at 5-6. He asserted
that compliance with 30 C.F.R. § 56.18002(a) must
be judged according to a reasonably prudent person test just like compliance
with any other generally worded standard. Id. at 14.

The Commission has consistently applied the reasonably prudent
person test to broadly worded standards. See U.S. Steel Mining Co., 27
FMSHRC at 439.[17]
The reasonably prudent person test provides that an
alleged violation is appropriately measured against whether a reasonably
prudent person, familiar with the factual circumstances surrounding the
allegedly hazardous condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting correction within the purview of
the applicable standard. Spartan Mining Co., Inc., 30 FMSHRC 699, 711 (Aug.
2008); see also Asarco, Inc., 14 FMSHRC 941, 948 (June 1992); Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982).

In Spartan Mining, for example,
the standard at issue required that equipment be maintained in safe operating
condition. We held that under this standard, “the alleged violative condition
is measured against the standard of whether a reasonably prudent person
familiar with the factual circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining industry, would recognize
a hazard warranting corrective action within the purview of the applicable
regulation.” 30 FMSHRC at 711. We concluded that “a reasonably
prudent foreman would have recognized that the damaged cable at issue
constituted a hazard warranting corrective action.” Id. at 713.

In
FMC Wyoming Corporation, 11 FMSHRC 1622, 1629 (Sept. 1989), the
Commission found that 30 C.F.R. § 57.18002(a), was
“drafted in general terms in order to be broadly adaptable to the varying
circumstances of a mine.” This standard, which
governs workplace exams for underground metal and non-metal mines, contains
language identical to section 56.18002(a). It follows that section 56.18002(a),
also must be “broadly adaptable” and, therefore, is appropriate for application
of the reasonably prudent person standard.[18]

Therefore,
we hold that an examination of working places, to comply with 30 C.F.R.    § 56.18002(a),
must be adequate in the sense that it identifies conditions which may adversely
affect safety and health that a reasonably prudent competent examiner would
recognize.

C. Notice

As noted supra,
Sunbelt contends that any standard of adequacy adopted by the Commission in
this case should not be applied to it because the Secretary failed to provide
fair notice to Sunbelt of the new regulatory interpretation. Sunbelt Supp. Br.
at 9-11.

The Commission
has historically applied the reasonably prudent person standard, described
above, as an objective standard to resolve issues of notice. See, e.g., Otis
Elevator Co., 11 FMSHRC 1896, 1906-07 (Oct. 1989), aff’d, 921 F.2d
1285, 1292 (D.C. Cir. 1990); Alabama By-Products Corp., 4 FMSHRC at
2129. In the notice context, the Commission has expressed this test as ‘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). When addressing issues of fair notice, we have
previously considered whether the operator would have been aware of the
requirement of the standard because of past case precedent. See Island Creek
Co., 20 FMSHRC 14, 25 (Jan. 1998).

In light of the
protective purposes of the Act and our extensive case-law regarding the
reasonably prudent person test, we hold that the Respondents should have been
aware that broadly-worded standards requiring examinations by competent persons
must meet a standard of adequacy under the reasonably prudent person test. Respondents
cannot claim to be surprised that the examination required under section
56.18002(a) must be adequate to uncover workplace hazards. This is, obviously,
the purpose of the examination. Nothing about our adoption of this standard
should cause an operator to act differently in conducting an examination.[19]
Thus, Respondents had fair notice of the requirement of adequacy in section
56.18002(a).

V.               

Conclusion

We deny LVR and Roanoke’s motion to dismiss. We vacate
the Judge’s decision that Sunbelt, LVR, and Roanoke did not violate 30 C.F.R. § 56.18002(a) and further find that the Respondents were
provided fair notice of the standard’s requirements, as set forth in this
decision.

We remand
for further proceedings as to whether the workplace examination conducted by Davis
met the requirements of the standard. On remand, the Judge should consider both
whether the seventh level of the pre-heat tower was a “working place,” and
whether Davis’ workplace examination was adequately conducted, as defined by
this decision.

/s/
Mary Lu Jordan

Mary Lu Jordan, Chairman    

/s/
Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

/s/
William I. Althen

William I. Althen, Commissioner

Commissioners Young and Cohen,
concurring in part and dissenting in part:

We join the majority
decision in this case, except for Disposition Section A, the denial of the
motion to dismiss filed by LVR, Inc. (“LVR”) and Roanoke Cement Co., LLC
(“Roanoke”). Slip op. at 5-6. In our view, LVR and Roanoke should be released
from these cases.

Fundamental to
due process is the principle that a person or other entity charged with a
violation be given notice of the charges against it. See Conley
v. Gibson, 355 U.S. 41, 47 (1957)(the federal pleading rules require the
complaint to give the defendant “fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.”), abrogated on other grounds by Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007); Carmichael v. Jim Walter Res., Inc., 20 FMSHRC 479, 484 n.9 (May 1998) (“the complaint
to the Commission, much like a complaint in a court proceeding, is a basic
pleading that serves to frame the issues to be tried”).

In this case, our colleagues
would include LVR and Roanoke in the remand based on a theory that these
entities can be held responsible for Sunbelt’s allegedly inadequate
examination. However, LVR and Roanoke were never charged with liability based
on anything other than their own alleged failures to perform an examination of
the working place under 30 C.F.R.

§ 56.18002(a). A review of the procedural facts of the case makes this clear.

On January 10,
2013, Citation No. 8723676 was issued against LVR, charging this contractor
with a violation of section 56.18002(a) as follows: “When checked it was found
that the contractor Sunbelt Rentals did not do an adequate work place exam as
they never inspected the area above where the employees were working where
there was hanging material. A work place exam is to be done by the operator at
least once each shift for conditions which may adversely affect safety or
health. . . .” The negligence was listed as “high.” Four days later, the
inspector modified the citation because the “wrong contractor name was used in
the body of the citation,” i.e., it “should have been LVR instead of
Sunbelt Rentals.”

On January 10,
2013, Citation No. 8723675 was issued against Roanoke, charging this operator
with a violation of section 56.18002(a) as follows: “It was found that Roanoke
Cement had last done a work place exam 7 days before the accident of the area
the contractor was working on. The last workplace exam was done on 12/30/2012
and at that time the area above where the contractor was working was not
checked for hazards before turning over the area to the contractor. A work
place exam is to be done by the operator at least once each shift for
conditions which may adversely affect safety or health . . . .” As with LVR,
the negligence was listed as “high.”

Subsequently,
MSHA issued “special assessments” against both LVR and Roanoke pursuant to 30
C.F.R. § 100.5. The civil penalties proposed were $47,300 against LVR and
$52,500 against Roanoke. On May 1, 2013, after the proposed penalties were
contested, the Secretary, by an attorney from the Solicitor’s Office of the
Department of Labor, issued a Petition for Assessment of Civil Penalty against
LVR and Roanoke based on these citations and special assessments. The attorney
did not amend the citations to allege that LVR and Roanoke failed to ensure
that the exam was performed.

On August 7,
2013, the Secretary filed a Motion for Partial Summary Decision against
Sunbelt, LVR, and Roanoke in which he alleged that work place examinations
under section 56.18002(a) must be adequate, and that operators have a duty
either to perform a proper work place examination or to ensure that a
contractor performs such an examination. The motion failed to recognize that
LVR and Roanoke had not actually been charged with failure to ensure that a
proper examination had been done.

Roanoke and LVR
then filed a Joint Opposition to the Secretary’s Motion and Cross-Motion for
Summary Decision. In this pleading, Roanoke and LVR alleged that each entity
had been cited for failing to perform its own examination, and not for a
failure to ensure that an examination had been performed. They argued that they
did not have a duty to perform separate, multiple examinations of the same work
place, and that they had relied on Sunbelt to perform the necessary
examination.

The Secretary
then filed a Response to Roanoke and LVR’s Motion for Summary Decision and
Reply to Roanoke and LVR’s Response to the Secretary’s Motion for Partial
Summary Decision. In the portion of the pleading responding to the Roanoke/LVR
motion for summary decision, the Secretary again argued that an adequate
examination had not been performed. The Secretary further alleged that Roanoke
and LVR did not designate Sunbelt’s examiner, Von Davis, to perform an
examination on their behalf.

In the portion of
the pleading supporting his own Motion for Partial Summary Judgment, the
Secretary reiterated his argument that Roanoke and LVR had a duty either to
perform an adequate examination or to ensure that one was performed. The
Secretary then quoted the two citations, arguing that they alleged a failure to
have a valid workplace exam performed.

In effect, this
pleading was saying (1) that the Secretary based his argument that Roanoke and
LVR failed to ensure that a proper examination was performed on the allegation
that they had not designated Sunbelt to perform it, and (2) that the Secretary
relied on the language of the citations as sufficient to charge both that Roanoke
and LVR had failed to perform a proper examination, and that they had failed to
ensure that a proper examination was performed.

In his decision,
the Judge erroneously rejected the Secretary’s fundamental position that
section 56.18002(a) contains a requirement of adequacy, which was a sufficient
basis for him to dismiss all three Respondents. But the Judge also rejected the
Secretary’s allegation that Roanoke and LVR had not designated Davis to perform
the examination for all three entities.  35 FMSHRC at 3214.

In its PDR, the
Secretary alleged that: (1) the Judge erred in ruling that section 56.18002(a)
does not require work place examinations to be adequate; (2) the Judge erred in
ruling that the three Respondents lacked fair notice; and (3) there is a
genuine issue of material fact relating to the adequacy of Davis’ examination
which precludes summary decision for the Respondents. The PDR did not allege
any issues relating to the liability of LVR and Roanoke separate from the
liability of Sunbelt.

In view of this
record, we conclude that although it was error to issue a summary decision in
favor of Sunbelt, there is no basis at this point for keeping LVR and Roanoke
in the case. The citations alleged that LVR and Roanoke themselves did not
perform an examination. The citation against LVR first alleged that Sunbelt did
not perform an adequate examination, but then was modified to say that “LVR did
not do an adequate work place exam as they never inspected the area above where
the employees were working where there was hanging material.” The citation
against Roanoke alleged that it “had last done a work place exam 7 days before
the accident . . . The last workplace exam was done on 12/30/12 and at that
time the area above where the contractor was working was not checked for
hazards before turning over the area to the contractor.”

Manifestly, these
citations did not allege a failure to ensure that an adequate
examination was performed. Rather, they charge that LVR and Roanoke did not,
themselves, perform an adequate examination.

The purpose of a
citation is to give the operator notice of the conduct or actions which the
Secretary contends violated the Mine Act. Section 104(a) of the Act imposes
specific responsibilities on the Secretary’s representatives. The law commands
the inspector to issue a citation to the operator when (s)he believes that an
operator has violated the Act. The law further requires that “[e]ach citation
shall be in writing and shall describe with particularity the nature of the
violation.” 30 U.S.C. § 814(a). The operator is entitled to construct a
defense to the charges alleged.

Commission
law is clear that leave to amend citations is freely given in the interests of
justice. Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990) (citing Rule
15(a) of the Federal Rules of Civil Procedure). Hence, at virtually any point
while this case was before the Judge, the Secretary could have amended the
citations so as to allege that LVR and Roanoke failed to ensure an adequate
examination. The Secretary simply chose not to do so.

The Secretary’s
argument for partial summary decision as to LVR and Roanoke was legalistic –
first, that he has the enforcement discretion to cite a production-operator, an
independent contractor, or both, for violations of the Mine Act committed by
the independent contractor, and second, that operators have a duty to either
perform a proper workplace examination or to ensure that the contractor
performs an adequate examination. Neither of these principles is in dispute,
but neither principle addresses the actual citations given to LVR and Roanoke
and the facts relating to those citations.

In their Joint
Opposition to the Secretary’s Motion and Cross-Motion for Summary Decision, LVR
and Roanoke made their position clear: they did not have to perform separate
examinations because it was sufficient that they had relied on Sunbelt’s
examiner. Certainly, at this point the Secretary could have moved to amend the
citations to address the defense raised by LVR and Roanoke.

Instead, however,
in his Response to the cross-motions, the Secretary doubled down, setting forth
the text of the citations and contending that they were sufficient to bear the
weight of the Secretary’s legal argument. Indeed, the Secretary confused the
matter by arguing that LVR and Roanoke had not, in fact, designated Sunbelt’s
examiner to perform the examination on their behalf.

In Commission
procedure, notice of the charges which an operator must defend against is set
forth in the citation or the citation as amended. It is not sufficient that the
Secretary set forth his theory of the operator’s liability as an abstract legal
principle in a motion for summary decision or a response to the operator’s
motion for summary decision. Torres v. City of Madera, 655 F. Supp. 2d
1109, 1128 (E.D. Cal. 2009), rev’d and remanded on other grounds, 648
F.3d 1119 (9th Cir. 2011) (“If the complaint focuses on one theory of
liability, the plaintiff cannot turn around and surprise the defendant at the
summary judgment stage with a new theory of liability.”); Silverman v.
Motorola, Inc., 772 F. Supp. 2d 923, 936 (N.D. Ill. 2011) (“Plaintiffs
cannot raise a new theory of liability in opposition to a motion for summary
judgment.”) (citations omitted); Casseus v. Verizon New York, Inc., 722
F.Supp.2d 326, 344 (E.D.N.Y. 2010) (“As a threshold matter, courts generally do
not consider claims or completely new theories of liability asserted for the
first time in opposition to summary judgment.”).

We have no doubt
that the Secretary could have charged LVR and Roanoke with a failure to ensure
that Sunbelt performed an adequate examination. If the Secretary had done so,
we would have no trouble including LVR and Roanoke in the remand. The
Secretary’s failure, however, to clearly allege in the citation or an amended
citation that the liability of LVR and Roanoke was predicated on their failure
to ensure that an adequate examination was performed should result in the
dismissal of the citations against these entities.

Finally, we
recognize and completely agree with the majority’s footnote 10: “We do not
demand that inspectors write citations with the legal precision of attorneys
sitting in comfortable offices.” There’s an inherent irony in the majority’s
application of that sound doctrine to this case. Thus, the majority defends the
Secretary’s failure here by relying on the lassitude afforded to administrative
pleadings. See Slip op. at 6, n.12, (“[A]dministrative pleadings
are to be liberally construed” because they are drafted by non-legal personnel
who must act quickly) (citing Brock v. Dow Chemical U.S.A., 801 F.2d
926, 930 (7th Cir. 1986)). At the same time, though, the majority also reminds
us that the determination of which operator to charge is an exercise of prosecutorial
discretion. Twentymile Coal Co., 456 F.3d
151, 154-55 (D.C. Cir. 2006). To assert simultaneously that this
decision may not be disturbed because it represents a sacrosanct professional
legal opinion while being simultaneously entitled to the kind of lassitude one
affords a pro se litigant or lay inspector is clearly illogical.

The
fault here is not on the part of the inspector. Rather, the citations were
reviewed on numerous occasions by the Secretary’s attorneys – “sitting in
comfortable offices” – who at each opportunity failed to ensure that a governmental
agency seeking to impose liability upon a private citizen complied with its
duty, under the Constitution and section 104(a) of the Act, to communicate the
nature of the violation alleged. It is error to not recognize this failure for
what it is and to require LVR and Roanoke to continue to defend against a
charge that has yet to be articulated properly.1

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

[1] 30 C.F.R. § 56.18002(a)
provides that “[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.”

[2] Sunbelt, LVR,
and Roanoke are sometimes referred to collectively herein as the “Respondents.”

[3] In an order
issued on January 13, 2014, the Commission stated that it would consider
Roanoke and LVR’s motion to drop at a later time, along with the issues raised
in the Secretary’s petition.

[4] Preheat is
defined as “[t]o heat beforehand; as . . . to heat (metal) prior to a thermal
or mechanical treatment.” Am. Geological Institute, Dictionary of Mining,
Mineral, and Related Terms 424 (2d ed. 1997).

[5] Citation No. 8723677 was issued to Sunbelt because it
“did not do an adequate work place exam in the area [the workers] were
working as there [was] hanging material overhead that had not been noted on the
workplace exam. The area above [on the seventh level] was never checked”
(emphasis added).

[6] Citation
No. 8723676 was issued to LVR because it “did not do an adequate work
place exam as [it] never inspected the area [on the seventh level] above where
the employees were working where there was hanging material.” (emphasis added).
In
the condition or practice section for Citation No.
8723676, the inspector mistakenly referred to Sunbelt rather than LVR. As
noted in Citation No. 8723676-01, the
inspector amended the citation to correct the error.

[7] Citation No. 8723675 was
issued to Roanoke because it “[had] last done a workplace exam 7 days before
the accident of the area the contractor was working in. The last workplace exam
was done on 12/30/2012 and at that time the area [on the seventh level] above
where the contractor was working was not checked for hazards before turning
over the area to the contractor.”

[8] Unlike the
citations issued to Sunbelt and LVR, the citation issued to Roanoke did not
expressly use the term “adequate.”

[9]
Commissioners Young and Cohen do not join this section of the opinion.

[10]
We do not demand that inspectors write citations with the legal precision of
attorneys sitting in comfortable offices. We read the citations as reflecting
the inspector’s knowledge that, if a contractor does not comply with an
examination obligation, he may also cite the production-operator.

[11] We are unaware
of any instance in which MSHA has asserted that a production-operator has a
duty to conduct a duplicative examination of a working place that is under the
exclusive control of an independent contractor that has inspected the area
satisfactorily. We reject the suggestion that the Judge interpreted the issue
with respect to LVR and Roanoke as whether they had a separate duty to perform
duplicative examinations of the same workplace even if Sunbelt conducted a
compliant examination.                                                     

[12] See Brock v.
Dow Chemical U.S.A., 801 F.2d 926, 930 (7th Cir. 1986) (holding that it is
well-established that administrative pleadings are to be liberally construed,
that this is particularly true for citations issued under the Occupational
Safety and Health Act of 1970, because the citations are drafted by non-legal
personnel who must act quickly and that to hold inflexibly the Secretary of
Labor to a narrow construction of the language of a citation would unduly
cripple enforcement of the Act).

[13]
The phrase “competent person” refers to a requirement of the standard, that a
“competent person” designated by the operator conduct the workplace exam.

30
C.F.R. § 56.18002(a).

[14]
Thus, we find that the Secretary’s Petition for Review, challenging the Judge’s
finding of no violation of the examination standard, raised the issue of LVR
and Roanoke’s liability.

[15] As discussed below, we remand the Judge’s decision
for a determination of whether Sunbelt’s examination complied with the
requirements of section 56.18002(a) as set forth in this decision. If the Judge
finds that Davis’ inspection did not meet the requirements of section
56.18002(a), he will have to make a negligence determination for each Respondent.
Negligence determinations necessarily require analysis of whether each Respondent
met its particular duty of care considering the
actions a reasonably prudent operator in its position would have taken under
the same or similar circumstances. Jim Walter Res., Inc., 36
FMSHRC 1972, 1975 (Aug. 2014). For example, in Jim Walter, the
Commission affirmed a finding that the production-operator was not negligent
when one of its contractors failed to require use of fall protection in
violation of 30 CFR 77.1710(g). Id. at 1975-76. Factors used by the
Commission in assessing the production-operator’s liability include whether the
record demonstrates the production-operator was negligent in hiring the contractor,
the contractor was appropriately aware of MSHA’s regulations, the contractor
had provided its employees required training, and whether there is any indication
of negligence by the production-operator with respect to the specific
violation. Id. at 1976-77.

[16]
This construction of section 56.18002(a) is consistent with Commission case law
construing regulations to further the protective purposes of the Mine Act. See,
e.g., Sedgman,
28 FMSHRC 322, 330 (Jun. 2006). The requirement set forth in this
opinion accords with our avoidance of absurd interpretations of regulations. See
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Rock of
Ages Corp., 20 FMSHRC 106, 122 (Feb. 1998), aff’d 170 F.3d 148, 161
(2d Cir. 1999).

[17]
Accordingly, although the definition of “adequate” was articulated by the
Secretary for the first time, in this case, at oral argument, it is certainly
not a novel theory of regulatory interpretation. Rather, it is a consistent concept
in Commission common law, and has been repeatedly applied to broadly worded
mandatory safety standards. See infra.

[18] At issue in FMC
Wyoming was the competence of the examiner, rather than the quality of the
examination. The Commission applied the reasonably prudent person test to the
requirement under section 57.18002(a) that a competent person designated by the
operator periodically conduct workplace examinations. We held that the term “competent
person” must contemplate a person capable of recognizing hazards that are known
by the operator to be present in a work area or the presence of which is
predictable in the view of a reasonably prudent person familiar with the mining
industry. 11 FMSHRC at 1629.

[19]
Moreover, Sunbelt is not prejudiced in the presentation of a defense. This case
was decided by the Judge on cross-motions for summary decision. Since we are
remanding the case for an evidentiary hearing, Sunbelt will be able to put on
evidence and cross-examine the Secretary’s witnesses regarding the adequacy of
the examination.

1 Concerning the
nature of the violation, we note that these citations were specially assessed,
alleging high negligence against both LVR and Roanoke. Not a single fact has
been produced, or even a cogent allegation made, showing that either party was
negligent. Indeed, before us the agency appears to believe that these parties
should be held vicariously liable, a theory wholly inconsistent with the
assertion of negligence in the citations.