Secretary of Labor v. Red River Coal Company, Inc.

Plain-English summary

Red River Coal's Stoker Plant could not support plumbing, so the company relied on an annually renewed waiver instead of providing bathing, changing, and flush-toilet facilities. MSHA denied the 2015 renewal, and Red River deliberately waited nearly five months without seeking an extension or submitting a revised application so it could challenge the agency's waiver process through a citation. The Secretary amended the citation from the waiver-posting rule to 30 C.F.R. § 71.400, which requires the facilities themselves when no waiver is in effect. Red River argued that changing and poorly explained waiver requirements denied it fair notice. Judge David P. Simonton found fair notice because the standard was clear, Red River had received a similar citation before, and the denial left ample time to seek guidance, request an extension, or reapply. He granted summary decision to the Secretary, upheld the violation, and assessed the proposed $100 penalty after finding moderate negligence, low gravity, and good-faith abatement.

Decision snapshot

• Cited standard: 30 C.F.R. § 71.400
• Outcome: The violation was upheld on summary decision, and Red River Coal was ordered to pay a $100 penalty.
• Key point: An operator that knows its annual waiver has expired cannot avoid a facilities citation by waiting to challenge inconsistent waiver-administration practices.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE
443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

December 9, 2016

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

RED
RIVER COAL COMPANY, INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. VA 2015-303

A.C.
No. 44-05971-389169

Mine:
Stoker

DECISION AND ORDER

Before:           
Judge Simonton

On October 31, 2016, the Secretary and
Red River Coal Company, Inc. (“Red River”) filed motions for summary decision. At
issue is a single citation, Citation No. 8201361, issued on June 22, 2015, to Red
River. The citation originally cited a violation of 30 C.F.R. § 71.403(c) for
Red River’s failure to have a valid bathhouse waiver. The Secretary has since
modified the citation to a violation of 30 C.F.R. § 71.400 for Red River’s
failure to provide a bathing facility, clothing change room, and sanitary flush
toilet facilities. Neither party disputes that Red River did not have the
required facilities or a bathhouse waiver at the time the citation was issued. Thus,
the only issue presented for summary decision is whether Red River had adequate
notice of the citation and the Secretary’s requirements for approving a bathhouse
waiver application. Red River argues that District 5 of the Mine Safety and
Health Administration (“MSHA” or “District 5”) has inconsistently applied the
bathhouse waiver regulations over the past few years and did not provide
adequate information to assist Red River in submitting a satisfactory renewal
application. The Secretary argues that Red River had notice that it would
receive a citation for its failure to have a current waiver and did not in fact
have a waiver at the time the citation was issued. After careful consideration
of the parties’ motions, the attached exhibits, the relevant case law, and the
entire record in the case, I deny Respondent’s motion for summary decision and grant
the Secretary’s motion.

I.     FACTUAL
BACKGROUND

30
C.F.R. § 71.400 requires operators to provide bathing facilities, clothing
change rooms, and sanitary flush toilet facilities. In cases where mines have
arrangements with third parties to satisfy the bathhouse requirement or are
unable to construct or support a surface bathhouse facility at the mine site, an
operator may apply for a waiver under 30 C.F.R. § 71.403.   Standard bathhouse
waivers extend for a 1-year period, and must be renewed annually. 30 C.F.R. §
71.403(a). If necessary, operators may file for an extension of a waiver at the
end of the one-year period. 30 C.F.R. § 71.403(d). The requirements for
granting a waiver are quite general. Section 71.404(a) requires the application
contain the name and address of the mine operator, the name and location of the
mine, and “a detailed statement of the grounds upon which the waiver is
requested and the period of time for which it is requested.” Operators must
have a current waiver or extension at all times.

The
conditions at Red River’s Stoker Plant are unsuitable for facilities that
require plumbing, and Red River therefore must apply for the bathhouse waiver
each year. Prior to 2010, Red River’s waiver applications were approved without
issue. Red River’s approved applications contained the same information: an
application form with mine and operator information and employee signatures; a
detailed statement written by the mine safety director describing the grounds
for the request; and a letter from the Wise County/City of Norton Department of
Health dated January 12, 2011, that denied Red River a sewage disposal
construction permit (“Sewage Permit Denial”). Resp. Ex. C, D. Since 2011,
however, the MSHA District 5 Manager has denied two of Red River’s bathhouse
waiver applications.

Red
River first began to experience changes in the waiver approval process after Greg
Meikle assumed the District Manager position. On April 24, 2013, Meikle denied
Red River’s February 8, 2013 waiver application. Resp. Ex. E. Red River’s
application contained the same information as the previous two applications,
which were approved. Meikle explained, however, that “based on the letter from
Wise County/City of Norton Health Department, dated January 12, 2011, there may
be alternative sewage disposal systems that might be applicable to [Red
River’s] situation, but [Red River did] not pursue[ ] these alternatives.” Id .
MSHA subsequently issued a citation to Red River for its failure to have bathing
facilities, clothing change rooms, and sanitary facilities on the mine site. See
Resp. Ex. H. On May 14, 2013, Meikle approved Red River’s interim application
for a six-month extension while it looked into alternative sewage disposal
systems. Resp. Ex. G.

On
November 18, 2013, Red River submitted a bathhouse waiver application that
addressed District Manager Meikle’s concerns. In addition to the waiver form
and sewage permit denial, Red River provided more detail on the alternative
sewage disposal systems. In its grounds for the request letter, Red River directly
addressed the alternative sewage disposal systems, discussed the lack of
potable water, distance from the closest public water line and public sewage
line, Red River’s inability to obtain a building permit, and cost prohibitions
as factors in favor of granting a waiver. Resp. Ex. J. Red River also provided a
letter from the County of Wise Department of Building and Zoning. Id . The
letter stated that no public water or sewer system was available at the mine
site to support the construction of a bathing facility. Id . District
Manager Meikle approved this application on January 16, 2014, to expire on
January 16, 2015. Resp. Ex. I.

On
November 10, 2014, MSHA CLR Hagel Campbell and William J. Sturgill, attorney
for Red River, had a conference call with Administrative Law Judge Moran on the
2013 citation. Following the call, MSHA vacated the citation. Resp. Ex. Q.

Red
River would again encounter problems upon District Manger Meikle’s departure
and replacement the following year. On December 11, 2014, Red River submitted
its application for renewal to the District Manager. See Resp. Ex. L. The
application contained the same information approved by Meikle the prior year: the
application; the detailed explanation of the grounds for Red River’s request; the
sewage permit denial; and the letter from the County of Wise department of
building and zoning. Id . However, District Manager Clayton E. Sparks
denied Red River’s waiver application on February 4, 2015. Resp. Ex. K. Sparks
explained that “with the life of this mine being 7 to 10 years, all avenues
need to be researched before a waiver could be granted.” Id . District
Manager Sparks specifically referred to the pump and haul system. Id . Oddly,
Red River’s Safety Director did discuss the infeasibility of the pump and haul
system and identified the lifespan of the mine to be 5 to 7 years in his detailed
letter describing Red River’s grounds for approval. See Resp. Ex. J, L.

Red
River did not request an extension or submit an amended bathhouse waiver
application immediately after receiving District Manager Sparks’ denial. Instead,
it waited almost five months to receive a citation so that it could challenge
the District Manager’s enforcement of the waiver regulations. Resp. Mot. at 6. On
June 22, 2015, MSHA Inspector Joe Black issued the citation to Red River for
not having a bathhouse waiver. Sec’y Ex. 1. The citation alleged a violation of
30 C.F.R § 71.403(c). Section 71.403(c) provides “Upon receipt of any waiver,
the operator shall post a copy of the waiver for at least 30 days on the mine
bulletin board required by section 107(a) of the Act.” On September, 29, 2016,
the Secretary moved to amend the pleadings to change the section violated to
section 71.400, which provides:

Each operator of a surface coal mine
shall provide bathing facilities, clothing change rooms and sanitary flush
toilet facilities, as hereinafter prescribed, for the use of miners employed in
the surface installations and at the surface worksites of such mine.

The citation was marked non-S&S,
unlikely to result in lost workdays, and the result of moderate negligence. Red
River did not file an objection to the Secretary’s motion to amend the citation,
and this court granted the motion on October 6, 2016.

On
July 7, 2015, Red River submitted an amended application for a bathhouse
waiver. The application contained all of the same information as the previous
application, save for an amended letter written by Red River’s Safety Director
and an updated letter from the Wise County Department of Building and Zoning. Resp.
Ex. N. Red River’s new letter included the same information as the previously
approved application, including a discussion of alternative sewage disposal
systems in bullet-point format, and discussed the cost of pumping associated
with the alternatives. Id . It also discussed the infeasibility of an onsite
septic system or alternative package plant system, and explained that pump and
haul permits are only temporary measures. Id . The updated letter from
the County of Wise Department of Building and Zoning stated that drilling a
well was likely cost prohibitive, that pump and haul permits are only temporary
measures, and that site compaction would require a plat. Id . It also
included a copy of the Virginia state laws for the construction of wells. Id .
On July 29, 2015, District Manager Sparks approved Red River’s amended
application. Resp. Ex. M. 

Red
River currently has an up-to-date waiver. On June 27, 2016, Red River submitted
its bathhouse waiver renewal with the same information and was approved on July
22, 2016. Resp. Ex. O, P.

II.     SUMMARY
JUDGMENT STANDARD

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

III.         DISCUSSION

The Secretary
argues, and the Respondent does not dispute, that Red River did not have a
current bathhouse waiver at the time the citation was issued, and thus the
citation should be upheld. Red River argues that the citation is invalid
because the Secretary did not provide adequate notice of what information it
must provide to receive a bathhouse waiver. Red River asserts that the Stoker
Plant’s conditions have not changed over the past five years. Red River claims
that the Secretary has denied its bathhouse waiver applications two times in
that span despite the fact that Red River has submitted the same application
that was approved the year before. We therefore look to whether Red River had
fair notice of the regulations and whether the citation should be upheld.

Considerations
of due process prevent adoption of the agency’s interpretation “from validating
the application of a regulation that fails to give fair warning of the conduct
it prohibits or requires. Wolf Run Mining Co. , 32 FMSHRC 1669, 1682
(Dec. 2010). 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.” Hecla Limited , 38 FMSHRC 2117, 2125 (Aug.
2016) (citations omitted).

The
notice requirement is satisfied when a party receives actual notice of MSHA’s
interpretation of a regulation prior to enforcement of that standard against
the party. See LaFarge North America , 35 FMSHRC 3497, 3500 (Dec. 2013). In
the absence of actual notice, the Commission applies an objective standard,
commonly known as the “reasonably prudent person test.” See Wolf Run , 32
FMSHRC at 1682 (citing Ideal Cement Co. , 12 FMSHRC 2409, 2416 (Nov.
1990)). The standard assesses “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 at 2416. In deciding whether a party had fair notice,
the Court may look to whether (1) the plain language of the cited standard is
clear and unambiguous, (2) the Secretary has issued guidance regarding its
interpretation, (3) the company was given pre-enforcement warning, (4) previous
citations were issued to the mine, or (5) a reasonably prudent person familiar
with the mining industry and the protective purposes of the standard would have
recognized the standard’s specific prohibition or requirement. Ash Grove
Cement Co. , 38 FMSHRC 2151, 2159 (Aug. 2016) (ALJ) (citing Wolf Run
Mining Co. , 32 FMSHRC at 1682).

Red
River argues that the citation at issue should be vacated because the Secretary
has inconsistently assessed Red River’s bathhouse waiver applications and
failed to provide notice of what is required to merit approval. The Secretary’s
denial of Red River’s waiver application, however, did not constitute the
violation at issue. The Secretary issued a violation to Red River for failing
to have a current waiver or providing the required facilities, not for failing
to submit an adequate application. We must therefore first look to whether Red
River had fair notice that the citation would be issued.

It
is undisputed that Red River did not have a bathhouse waiver at the time that
the citation was written. The plain language of sections 71.400 and 71.403
clearly indicate that if the mine site does not have bath facilities, changing
rooms, or flush toilets, it must have a current waiver. Red River had received
a similar citation in 2013 for failing to have an unexpired bathhouse waiver
and admitted that it purposefully delayed reapplying for a waiver in order to
receive the citation and challenge the Secretary’s inconsistent enforcement of
the waiver application process. See Resp. Mot. at 6. Thus Red River had
actual knowledge that it would be issued a citation if it failed to comply with
the standard.

Having
found that Red River had actual knowledge that it would receive a citation if
it did not have a valid waiver, I do not find that MSHA’s prior inconsistent
enforcement was sufficient to unfairly deprive Red River of notice. The
Commission has long held that an inconsistent enforcement pattern by MSHA
inspectors does not prevent MSHA from proceeding under an application of the
standard it concludes is correct. Austin Powder Co. , 29 FMSHRC 909,
919-20 (Nov. 2007) (citing Nolichuckey Sand Co. , 22 FMSHRC 1057). Prior
inconsistent enforcement is only one of several factors that the Commission
considers in evaluating whether an operator has received fair notice. Alan
Lee Good , 23 FMSHRC 998, 1006 (Sept. 2011) (Commissioners Jordan &
Beatty).

Here,
District 5’s bathhouse waiver approval procedure was inconsistent. In each
instance where Red River’s application was denied, the denied application had
been approved by District 5 the year before. District Manager Sparks’ denial
letter requested more detailed information regarding all potential sewage
disposal alternatives, but did not give Red River any guidance beyond requiring
it to discuss all possible avenues, some of which Red River had already
addressed in the previous application. See Resp. Ex. K.

However,
MSHA’s inconsistent prior enforcement does not mean that Red River did not have
fair notice, especially in relation to the citation at issue. The factual
context surrounding the citation demonstrates that Red River was aware of the
waiver approval process and had the opportunity to avoid the citation.

First,
Red River had been previously placed on notice as to the application process
and an operator’s options following a denial. As discussed above, District 5
issued a similar citation to Red River for failing to have a current bathhouse
waiver in 2013. In that instance, Red River’s initial waiver application was
denied for failure to discuss alternative sewage disposal systems. After
receiving a citation, Red River quickly submitted an application for an
extension, followed by an amended application responding to the District
Manager’s explanation. Director Meikle approved Red River’s extension and
subsequent application, and MSHA vacated the citation. While the fact that the
previous citation was vacated does not bear on the validity of the current
citation, it demonstrates that Red River was previously placed on notice
regarding the importance of discussing alternatives in its application. It also
demonstrates that District 5 was willing to assist and accommodate operators in
obtaining a bathhouse waiver.

Second,
the five-month gap between the denial and the citation gave Red River ample
time to reply to the denial, seek additional guidance from District 5, and
reapply for the waiver before receiving a citation. District Manager Sparks
denied Red River’s waiver application on February 4, 2015, and MSHA Inspector
Black did not issue the citation to Red River for lack of a waiver until June
22, 2015. Thus, the denial was not an enforcement measure, but more akin to a
pre-enforcement warning that gave Red River notice of the potential violation. See
General Elec. Co., v. EPA , 53 F.3d 1324, 1329 (D.C. Cir. 1995) (reasoning that
the agency’s pre-enforcement warnings to bring about compliance with its
interpretation may provide adequate notice to regulated parties). Red River had
knowledge that it was required to have a bathhouse waiver, and that if it did
not, MSHA would issue a citation. Red River thus had months to reply to the
denial or file an extension and seek clarification regarding the waiver
requirements, and successfully reapply. Red River opted not to take that
opportunity. Thus, the denial letter served as a pre-enforcement warning and
notice of the citation at issue.

Even
assuming that Red River did not have actual notice of the citation or
regulations, a reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the need to work
with MSHA to obtain a bathhouse waiver as soon as their previous waiver
expired. The provisions at issue are designed to ensure that miners have an
area to sanitize before and after working in the mines, and a reasonably
prudent miner familiar with this purpose would recognize that failing to
provide such facilities, or failing to obtain a waiver, is in direct
contravention of the act. 30 C.F.R. §§ 71.400-71.402. While MSHA could have
been more explicit and consistent in explaining their requirements for approval
of the bathhouse waiver, it is the responsibility of the operator once put on
notice not to let a violation continue. See Consul Buchanan Mining Co. v. Sec’y
of Labor , No. 15-1321, 2016 WL 6648676 (4th Cir. Nov. 10, 2016). District
Manager Sparks provided enough explanation in his denial letter to begin a
dialogue regarding the application before the risk of a penalty became imminent.
Vacating this citation would, therefore, contradict Congress’s mandate that
mines and operators are primarily responsible for ensuring that their mines are
safe and complying with the health and safety standards. 30 U.S.C. 801(e); see
id .

Red
River argues that “a constantly changing standard year in and year out when the
regulations have remained the same can certainly have significant and possibly
drastic consequences on the operations of Red River and its ability to remain
in operations.” Resp. Mot. at 6-7. There is no doubt that MSHA could have and
should have been more specific in what it expected from Red River. MSHA would
do well to fully explain the reasons behind its denials of applications,
especially in instances such as this one where it is unclear what exactly the
operator’s application lacked. However, MSHA did wait nearly five months to
issue a citation and thus opened the door for dialogue and discussion regarding
the specifics of the denial. Red River cannot be said to have lacked notice
when it refused to engage in discussions that could advance understanding of
the health and safety and standards and avoid enforcement measures altogether.  

Accordingly,
I find that Red River had fair notice of the standard and uphold the violation. 

IV.        PENALTY
ASSESSMENT

Section
110(i) of the Mine Act grants Commission Administrative Law Judges (“ALJs”) the
authority to assess penalties under the Mine Act de novo , in accordance
with six criteria. ALJs must consider:

(1) The operator’s history of previous
violations, (2) the appropriateness of such penalty to the size of the business
of the operator charged, (3) whether the operator was negligent, (4) the effect
on the operator’s ability to continue in business, (5) the gravity of the
violation, and (6) the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of the violation.

30
U.S.C. § 820(i). The Secretary proposed a penalty of $100.00 for the violation.
Since I have granted the Secretary’s motion for summary decision, I have
reviewed the six criteria to ensure that the penalty is proper.  I find that the
Stoker Plant is a small mine, and as discussed above has been cited once
previously for this violation; a citation that was later vacated. The parties
stipulated that the penalty will not affect Red River’s ability to continue in
business. Stip. #4. The violation was not serious and was the result of
moderate negligence. I find that Red River abated the violation in good faith
when it resubmitted and was approved for a new bathhouse waiver. Accordingly, I
find that a penalty of $100.00 is appropriate.

V.     ORDER

Based on my review of the record and the
applicable law, I find that there is no dispute of material fact and the
Secretary is entitled to summary decision as a matter of law. The Secretary’s
motion for summary decision is GRANTED and Respondent’s motion for
summary decision is DENIED .

The Respondent, Red River Coal Company, Inc.
is ORDERED
to pay the Secretary of Labor the sum of $100.00 within 30 days of this
order. [1]

/s/
David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution:
(U.S. First Class Mail)

Hagel
Campbell, M. RosAnn Beaty, Conference & Litigation Representatives, U.S.
Department of Labor, MSHA, P.O. Box 560, Norton, VA, 24273

William
J. Sturgill, Sturgill Law Office, P.C., 944 Norton Road, P.O. Box 3458, Wise,
VA 24293

[1]
Payment
should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF
LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390