Energy West Mining Company (Commission decision, August 31, 1995)

Plain-English summary

Energy West Mining Company was cited after an inspector measured 22,680 cubic feet of air per minute at the intake end of a longwall face where the mine's approved ventilation plan required 30,000 cubic feet per minute. Energy West argued that the requirement applied only during active coal production, while the Secretary argued that it applied whether or not coal was being mined. The Commission held that the plan provision was ambiguous and that the record contained disputed facts material to its meaning and application. It vacated the judge's summary decision and remanded for an evidentiary hearing on the Secretary's interpretation, notice, and whether the longwall section was temporarily idle for repairs or idle for the entire shift.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.316, with related ventilation requirements under 30 C.F.R. §§ 75.301 and 75.301-3(c)
• Outcome: The violation finding and $20 civil penalty decision were vacated, and the matter was remanded for further proceedings.
• Key point: A ventilation-plan provision must be interpreted and applied through factfinding when its wording and placement support competing reasonable readings.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

August 31, 1995

SECRETARY OF LABOR,
:
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA)
:
: Docket Nos. WEST 92-216-R
v. : WEST 92-421
:
ENERGY WEST MINING COMPANY
:

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

DECISION

BY: Jordan, Chairman; Doyle and Holen, Commissioners

This consolidated contest and civil penalty proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"), involves a citation issued by the Department of Labor's Mine Safety and Health Administration ("MSHA") to Energy West Mining Company ("Energy West") alleging a violation of 30 C.F.R. § 75.316 (1991).1 Upon cross motions for summary decision, former Administrative Law Judge Michael

1
Section 75.316, which resta ted 30 U.S.C. § 863( o), provided a s follow s:

A ventilation system and methane and dust control plan and revisions thereof suitable to the conditions and the mining system of the coal mine and approved by the Secretary shall be adopted by the operator and set out in printed form on or before June 28, 1970.
The plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity of air reaching each working face, and such other information as the Secretary may require. Such plan shall be reviewed by the operator and the Secretary at least every 6 months.
On November 16, 1992, 30 C.F.R. § 75.316 was superseded by 30 C.F.R. § 75.370, which

1

A. Lasher, Jr. determined that Energy West violated the standard and he assessed a civil penalty of $20. 15 FMSHRC 1185 (June 1993) (ALJ). For the reasons set forth below, we vacate the judge's decision and remand for further proceedings.

I.

Factual and Procedural Background

At 4:10 a.m. on December 26, 1991, MSHA Inspector Robert Baker issued a citation2 to

imposes similar requirements.
2
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Energy West at its Deer Creek Mine in Emery County, Utah. The citation alleged that Energy West violated the approved ventilation system and methane and dust control plan it had adopted pursuant to 30 C.F.R. § 75.316 and section 303(o) of the Act, 30 U.S.C. § 863(o). 15 FMSHRC at 1187. The citation stated that the 6th Right longwall section was required to be ventilated by 30,000 cubic feet of air per minute ("cfm"). Id. The inspector measured the air quantity to be 22,680 cfm, which is not disputed by Energy West. Id. at 1188.

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11

Energy West contested the citation and, on August 17, 1992, filed a motion for summary decision pursuant to former Commission Procedural Rule 64, 29 C.F.R. § 2700.64.3 In support of its motion, Energy West asserted that the requirement for 30,000 cfm set forth on the individual water spray schematic for mechanized mining unit ("MMU") No. 051-0 was the sole basis for the Secretary's citation. Energy West also asserted that the provision applies only during periods of coal production, not during idle periods, and that the citation was issued "during an idle shift when no coal production was occurring." E. Mot. at 3-5, citing S. Resp. to Interrog. at 3-4. The operator contended that, because the provision is set forth only on the individual MMU water spray schematic, the 30,000 cfm requirement is linked to the need for water spraying and argued that, because spraying is required only during active mining, the 30,000 cfm requirement is likewise limited to production shifts. Energy West referred to other parts of its ventilation plan and to its fan stoppage plan to support its position that the ventilation plan distinguishes between periods of active mining and idle periods.4 Id. at 3-4, 7-8. The motion was supported by an affidavit from Dave Lauriski, Energy West's Director of Health, Safety and Training, who developed the ventilation plan.

The Secretary filed a cross motion for summary decision, asserting that the pertinent plan provision is unambiguous and that the 30,000 cfm requirement applies at all times whether or not coal is being mined. S. Mot. at 3. The Secretary disagreed that the provision was intended to apply only during periods of coal production or that Energy West had consistently interpreted the provision in the manner it now advocates. Id. at 1-2. He further disputed that the shift was idle

3
Su bsequ ent cha ng es to Ru le 64 do not a ffect the insta nt ca se. See 29 C.F.R.
' 2 70 0 .67 ( 1993).
4
Energ y W est relied on the follow ing provisions of its ventila tion pla n:

V II. V ENTILA TION OF ID LE A REA S. "1. A ppropria te m ea su res w ill be ta k en in idle a rea s to insu re the a ir qu a lity sta nda rds requ ired u nder pa rts 75.301- 2 a nd 75.301- 5."

XV II. LONG W A LL SET - U P A ND EXTRA CTION V ENTILA TION. "6.
M inim u m a ir qu a ntities for set- u p a nd extra ction fa ces a re:. . . ID LE PERIODS - A t idle periods du ring the set- u p a nd extra ction process a m inim u m of 3,0 0 0 cfm of a ir w ill be m a inta ined a cross the set- u p a nd extra ction fa ces."

Energ y W est relied on the follow ing provision of its fa n stoppa g e pla n:

C. RESUM PTION OF W ORK . 3. BA CK - U P FA N OPERA TION. "b. Idle w ork m a y be done a s long a s the w ork a rea ha s been exa m ined in a ccorda nce w ith 30 C.F.R. 75.303 . . . ."

E. M ot. A tta chm ents B a nd C.

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and contended that the reason coal was not being produced at the time was because the MMU was being repaired. Id. at 3.

Relying on 30 C.F.R. §§ 75.301 and 75.301-3(c),5 the Secretary argued that the longwall face must be constructed "as a pillar line." S. Mot. at 3. The Secretary asserted that, although the minimum quantity of air required under the standard at a pillar line is 9,000 cfm, the Secretary may require a greater quantity and, in this case, had required 30,000 cfm. Id. at 3. The Secretary supported his motion for summary decision with an affidavit from MSHA Supervisory Mining Engineer William P. Reitze, who, as a member of the MSHA Denver Ventilation Group, reviews and evaluates coal mine ventilation plans. Affidavit at 1-2. Reitze averred that the 30,000 cfm requirement for the longwall face during idle periods ensures that methane and other harmful gases are cleared from the bleeder system as well as from the face. Id. at 2-3. In its response to the Secretary's cross motion for summary decision, Energy West disputed the Secretary's assertions.

The judge granted summary decision in favor of the Secretary. He concluded that the plan provision clearly required 30,000 cfm of air at all times and, thus, that a violation had been established. The Commission granted Energy West's petition for discretionary review, which challenged the judge's decision on both procedural and substantive grounds.

5
Section 75.301 provided in pertinent pa rt:"the m inim u m qu a ntity of a ir rea ching the inta k e end of a pilla r line sha ll be 9,0 0 0 cu bic feet a m inu te . . . . The a u thorized representa tive of the Secreta ry m a y requ ire in a ny coa l m ine a g rea ter qu a ntity a nd velocity of a ir w h en he finds it necessa ry to protect the hea lth or sa fety of m iners." 30 C.F.R. § 75.301 ( 1991).

Section 75.301- 3( c) sta ted tha t "[w ]hen long w a ll m ining is pra cticed the volu m e of a ir sha ll be m ea su red in the inta k e entry or entries a t the inta k e end of the long w a ll fa ce a nd the long w a ll sha ll be constru cted a s a pilla r line." 30 C.F.R. § 75.301- 3( c) ( 1991).

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II.

Disposition

Energy West contends on review that the 30,000 cfm requirement applies only during active coal production, not when the section is idle. PDR at 8-10. Energy West also argues that the Secretary should be required to demonstrate that it was on notice of the Secretary's interpretation. Id at 14. It maintains that the finding of violation should be reversed. Reply Br. at

6. Alternatively, if the Commission determines that a genuine issue of material fact exists, the
   operator seeks remand. PDR at 15. The Secretary asserts that the judge correctly found the disputed provision to be unambiguous and to apply at all times. S. Br. at 8-15.

   Summary decision may be granted only where: (1) the entire record, including pleadings,
   

   affidavits, and answers to interrogatories, establishes that there is no genuine issue as to any material fact; and (2) the moving party is entitled to summary decision as a matter of law. 29 C.F.R. ' 2700.67(b). See generally Missouri Gravel Co., 3 FMSHRC 2470, 2471 (November 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). We conclude that the disputed plan provision is ambiguous and that the judge's determination to the contrary was erroneous. We also conclude that the record before the judge contained disputed facts material to determining the requirements of Energy West's ventilation plan. For these reasons, summary decision was inappropriately entered. See Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994).

   The plan contains a separate schematic entitled "water spray diagram" for each MMU
   

   longwall section in the mine. 15 FMSHRC at 1188. It is undisputed that the 30,000 cfm requirement is set forth in one place only, as one of four "controls and practices" on the water spray diagram. See S. Br. at 14; 15 FMSHRC at 1186. One possible inference from the placement of the requirement is that it is linked to the provision of water sprays and that, like water sprays, the requirement applies only while the longwall is in operation. Furthermore, as Energy West argues, air quantity requirements in the plan vary, depending on whether mining is occurring or the section is idle. PDR at 9-10; Reply Br. at 4-6. We therefore conclude that the disputed plan provision is unclear. Accordingly, a determination must be made as to whether the Secretary's interpretation of the provision is reasonable and we remand to that effect.6

   In the event the judge determines that the Secretary's interpretation of the provision is
   

   reasonable, he should also address the operator's notice argument and determine whether the operator had notice that the provision was to apply at all times. "The Commission's task is . . . to determine whether the Secretary's interpretation of [a] regulation is reasonable and whether the operator was given fair notice of its requirements." Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992). Commission precedent expressly recognizes notice as an appropriate inquiry as to ventilation and roof control plan provisions. Jim Walter Resources, Inc., 9 FMSHRC 903, 908

   6
   A n a g ency'
   s rea sona ble interpreta tion of its reg u la tions is entitled to deference.
   Secreta ry of La bor v. W estern Fu els- U ta h, 900 F.2d 318, 321 ( D .C. Cir. 1990).

                                               14
   

(May 1987); Mettiki Coal Corp., 13 FMSHRC 3, 7 (January 1991).

Because the plan provision is enforceable as a mandatory standard, the operator is entitled to the due process protection available in the enforcement of regulations. A[T]he due process clause prevents . . . deference from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires." Gates & Fox Co. v. Occupational Safety and Health Review Comm'n, 790 F.2d 154, 156 (D.C. Cir. 1986).7 When "a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express." Phelps Dodge Corp. v. Federal Mine Safety and Health Review Comm'n, 681 F.2d 1189, 1193 (9th Cir. 1982), quoting Diamond Roofing Co., Inc. v. Occupational Safety and Health Review Comm'n, 528 F.2d 645, 649 (5th Cir. 1976). Accord General Electric Co. v. EPA, 53 F.3d 1324, 1328 (D.C. Cir. 1995); Secretary of Labor v. Western Fuels-Utah, Inc. 900 F.2d 318, 326 (D.C. Cir. 1990) (Edwards, J., dissenting). Laws must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991). The enforcement actions at issue were vacated for lack of notice in Gates & Fox (790 F.2d at 156-57), Phelps Dodge (681 F.2d at 1193) and General Electric (53 F.3d at 1330).8

The Commission has not required the Secretary to provide an operator with actual notice

7
We find Sewell Coal Co. v. Federal Mine Safety and Health Review Comm'n, 686 F.2d 1066 (4th Cir. 1982), cited by our colleague, to be unpersuasive. As noted by Judge Widener in his dissent, neither SEC v. Chenery Corp., 332 U.S. 194 (1947), nor NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), Ainvolved the imposition of a fine without notice.@ 686 F.2d at 1073. In Bell Aerospace, the Supreme Court explicitly acknowledged this distinction, stating: A[T]his is not a case in which some new liability is sought to be imposed on individuals for past actions which were taken in good faith reliance on Board pronouncements. Nor are fines or damages involved here. . . .@ Id. at 295 (emphasis added). Neither NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), nor Molina v. INS, 981 F.2d 14 (1st Cir. 1992), also cited by our colleague, dealt with imposition of liability without prior notice; in Molina the court expressly notes that no due process claim is involved. 981 F.2d at 19.
8
Cha irm a n Jorda n notes tha t, in Genera l Electric, the cou rt held tha t a n a g ency=s interpreta tion m a y be rea sona ble a nd entitled to deference even thou g h the interpreta tion Aw ou ld not be obviou s to >the m ost a stu te rea der=@ a nd m ig ht Adiverg e sig nifica ntly from w h a t a first- tim e rea der of the reg u la tions m ig ht conclu de w a s the >best= interpreta tion of their la ng u a g e.@ 53 F.3d a t 1327. The cou rt deferred to the a g ency=s interpreta tion beca u se it w a s Alog ica lly consistent w ith the la ng u a g e of the reg u la tion[s],@ bu t fou nd tha t the interpreta tion w a s Aso fa r from a rea sona ble person=s u ndersta nding of the reg u la tions tha t they cou ld not ha ve fa irly inform ed GE of the a g ency=s perspective.@ 53 F.3d a t 1330. A lthou g h the a g ency cou ld requ ire fu tu re com plia nce w ith its interpreta tion, the la ck of fa ir notice led the cou rt to reverse the enforcem ent a ction ta k en in tha t pa rticu la r insta nce. 53 F.3d a t 1328, 1330.

15

of the Secretary's interpretation prior to enforcement. Rather, the Commission has applied an objective standard of notice, i.e., the reasonably prudent person test. E.g., Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (December 1982); Otis Elevator Co., 11 FMSHRC 1896, 1906 (October 1989), aff'd, 921 F.2d 1285, 1291 (D.C. Cir. 1990). The Commission has summarized 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 (November 1990).

We note that Energy West has conceded that a violation occurred if active mining had been only temporarily halted for repairs of the MMU. E. Opp'n to S. Mot. at 8. See Mid- Continent Coal and Coke Co., 3 FMSHRC 2502, 2504 (November 1981). Thus, depending on the judge's conclusions regarding the interpretation and application of the ventilation plan provision, the status of the longwall section at the time of citation could bear on whether a violation occurred. In the event the judge determines that the Secretary's interpretation is not reasonable, or if he sustains the operator's argument as to lack of notice, he must determine whether, at the time of citation, the longwall section had been only temporarily idled for repairs as asserted by the Secretary (S. Br. at 11-12), or whether the section was idled for the entire shift, as asserted by Energy West. PDR at 13.9

III.

Conclusion

9
W e do not rea ch Energ y W est' s objection to the ju d g e' s a doption of la ng u a g e from the
Secreta ry's cross m otion in his decision. How ever, w e note tha t su ch incorpora tion of la ng u a g e is "qu estiona ble ju dicia l pra ctice." Energ y W est M ining Co., 16 FM SHRC a t 1419 n.8.

16

For the foregoing reasons, we reverse the judge's determination that the plan provision is unambiguous, vacate his decision, and remand this matter to the Chief Administrative Law Judge for assignment to a judge for an evidentiary hearing.10

______
Mary Lu Jordan, Chairman

Com m issioner M a rk Lincoln M a rk s, concu rring in pa rt a nd dissenting in pa rt

10
Ju d g e La sher ha s retired.

17

:

I concu r in the resu lt rea ched by m y collea g u es. I a g ree tha t the dispu ted pla n provision is a m big u ou s for the rea sons set forth by them a nd tha t the ju d g e' s determ ina tion to the contra ry w a s erroneou s. I a lso a g ree tha t the record before the ju d g e conta ined dispu ted fa cts m a teria l to determ ining the requ irem ents of Energ y W est' s ventila tion pla n a nd; therefore, the ju d g e ina ppropria tely entered su m m a ry decision. See Energ y W est M ining Co., 16 FM SHRC 1414, 1419 ( Ju ly 1994). I a g ree w ith m y collea g u es tha t this ca se m u st be rem a nded to the ju d g e for a determ ina tion of w h ether the Secreta ry' s interpreta tion of the 11 provision is rea sona ble a nd, thu s, entitled to w eig ht.

How ever, I dissent from m y collea g u es= view tha t, in a ddition to a determ ina tion tha t enforcem ent of a ventila tion pla n is ba sed on a rea sona ble interpreta tion of its requ irem ents, enforcem ent a ctions a re su bject to a sepa ra te "notice" requ irem ent. In m y view , the Secreta ry ca n enforce ventila tion pla ns ba sed on rea sona ble interpreta tions of their requ irem ents a nd tha t su ch enforcem ent a ctions a re not a lso su bject to a sepa ra te "notice" requ irem ent. Sew ell Coa l Co. v. Federa l M ine Sa fety a nd Hea lth Review Com m =n, 686 F.2d 1066, 1069 ( 4th Cir. 1982) ( ASew ell@). In Sew ell, the Fou rth Circu it Cou rt of A ppea ls held tha t Sew ell=s a rg u m ent tha t the Secreta ry=s interpreta tion, u nk now n to it a t the tim e, shou ld not be retroa ctively a pplied w a s foreclosed by a nu m ber of Su prem e Cou rt decisions. Id. a t 10 6 9 - 70 , citing NLRB v. Bell A erospa ce Co., 416 U.S. 267 ( 1974); NLRB v. W ym a n- G orda n Co., 394 U.S. 759 ( 1969); SEC v. Chenery Corp., 332 U.S. 194 ( 1947). The Fou rth Circu it fu rther held tha t Aretroa ctive a pplica tion of a novel principle expou nded in a n a dju dica tory proceeding d oes not infring e the rig hts secu red by the du e process cla u se.@ Sew ell, 686 F.2d a t 10 70 .

11
The Sena te com m ittee report on the M ine A ct sta tes tha t beca u se the Secreta ry "is cha rg ed w ith responsibility for im plem enting this A ct, it is the intention of the Com m ittee, consistent w ith g enera lly a ccepted precedent, tha t the Secreta ry's interpreta tions of the la w a nd reg u la tions sha ll be g iven w eig ht by both the Com m ission a nd the cou rts." S. Rep.No. 181, 95th Cong ., 1st Sess. 49 ( 1977), reprinted in Sena te Su bcom m ittee on La bor, Com m ittee on Hu m a n Resou rces, 95th Cong ., 2d Sess., Leg isla tive History of the Federa l M ine Sa fety a nd Hea lth A ct of 1977, a t 637 ( 1978).

8

The Secreta ry is not prevented from enforcing a rea sona ble interpreta tion of a n a m big u ou s pla n provision sim ply beca u se the opera tor ha s relied on a n a lterna tive interpreta tion; on the contra ry, the Com m ission m u st g ive w eig ht to a rea sona ble interpreta tion by the Secreta ry, even if it is not the only one perm itted by the la ng u a g e of the sta nda rd. E.g ., Sew ell, 686 F.2d a t 1069; Secreta ry of La bor v. W estern Fu els- U ta h, 900 F.2d 318, 321 ( D .C. Cir. 1990). Requ iring pre- enforcem ent "notice" of a rea sona ble interpreta tion of a pla n provision w ou ld a llow the opera tor to esca pe lia bility in ca ses of first im pression. D u e process does not requ ire the Secreta ry to enforce a rea sona ble interpreta tion of the ventila tion pla n requ irem ents only prospectively ( i.e., only a fter providing Anotice@). See SEC v. Chenery Corp., 332 U.S. a t 2 0 2 - 0 3 ; Sew ell, 686 F.2d a t 1069. "[R]etroa ctive a pplica tion of new principles in a dju dica tory proceeding s is the ru le, not the exception. A nd, a g encies ha ve broa d leg a l pow er to choose betw een a dju dica tion a nd ru lem a k ing proceeding s a s vehicles for policym a k ing ." M olina v. INS, 981 F.2d 14, 23 ( 1st Cir. 1992), citing SEC v. Chenery Corp., 332 U.S. 194 ( 1947).12

Fu rther, I a lso believe tha t the "rea sona bly pru dent person test" is ina pposite in this ca se. I do not a ddress whether this test is ever a n a ppropria te a na lytica l fra m ew ork for "eva lu a t[ing ] the fa irness of the a pplica tion of broa d sta nda rds to pa rticu la r fa ctu a l setting s." Idea l Cem ent Co., 12 FM SHRC 2409, 2415 ( Novem ber 1990) ( em pha sis su pplied). How ever, even a ssu m ing tha t the test is a n a ppropria te a na lytica l fra m ew ork for broa d sta nda rds, the Com m ission here is confronted w ith a specific ventila tion pla n provision, not a broa d sta nda rd.

M a rc Lincoln M a rk s, Com m issioner

______
Joyce A. Doyle, Commissioner

12
It is tru e, a s pointed ou t by m y collea g u es, slip op. a t 5 n.7, tha t in M olina the cou rt noted A[t]here is no cla im here tha t the federa l definition exceeds the bou nds tha t som e other pa rt of the Constitu tion ( sa y, the >du e process= cla u se) m ig ht set.@ M olina , 981 F.2d a t 19. How ever, m y collea g u es neg lect to point ou t tha t the cou rt w ent on to note tha t it fou nd Anothing >fu nda m enta lly u nfa ir= a bou t [the federa l] definition.@ Id.

9

______
Arlene Holen, Commissioner

9