Secretary of Labor v. Southern Ohio Coal Company

Plain-English summary

Southern Ohio Coal Company received an order of withdrawal after an inspector found that a section of the Martinka No. 1 Mine's supply track lacked shelter holes at the intervals required by a mine safeguard. The administrative law judge vacated the order because the Secretary had not shown that the safeguard was based on conditions peculiar to that mine, rather than a condition found at many mines. The Commission held that a safeguard may address a commonly encountered transportation hazard, including one patterned after a published criterion, if the inspector evaluated the specific conditions at the mine and determined that a transportation hazard required correction. It vacated the judge's decision and remanded for findings on the safeguard's validity, any violation, the order of withdrawal, significant and substantial character, unwarrantable failure, and an appropriate civil penalty.

Decision snapshot

• Governing authority: 30 U.S.C. § 874(b); 30 C.F.R. § 75.1403
• Outcome: The judge's decision was vacated and the proceeding was remanded for further findings and any resulting merits and penalty determinations.
• Key point: A safeguard need not address a hazard unique to one mine, but the Secretary must prove that the inspector based it on specific conditions and a transportation hazard at the mine involved.

Full text (FMSHRC public release)

CCASE:
MSHA V. SO. OHIO COAL
DDATE:
19920110
TTEXT:
January 10, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket Nos. WEVA 88-144-R
WEVA 88-212
SOUTHERN OHIO COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arises under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1988)("Mine Act" or "Act"), and presents two issues: (1) whether a notice
to provide safeguards issued pursuant to 30 C.F.R. § 75.1403 is invalid if
it addresses conditions that exist in a significant number of mines; and (2)
whether the validity of a notice to provide safeguards is materially
affected by the fact that it is patterned after 30 C.F.R. § 75.1403-9(a), a
published safeguard criterion. Our decision in this matter is
one of

1
30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 30 U.S.C. §
874(b), and states:
Other safeguards adequate, in the judgment of
an authorized representative of the Secretary [of
Labor], to minimize hazards with respect to
transportation of men and materials shall be
provided.
30 C.F.R. § 75.1403-1 sets forth general provisions regarding
"criteria" by which authorized representatives are guided in requiring
safeguards. Section 75.1403-1(a) provides:
Sections 75.1403-2 through 75.1403-11 set out
the criteria by which an authorized representative
of the Secretary will be guided in requiring other
safeguards on a mine-by-mine basis under § 75.1403.
Other safeguards may be required.
The procedures by which an authorized representative of the Secretary

several on this date with respect to the Secretary's issuance of safeguards. 2

In this case, Commission Administrative Law Judge Roy J. Maurer found
that the Secretary failed to prove that the safeguard in question was issued
because of any conditions "peculiar" to the mine of Southern Ohio Coal
Company ("SOCCO"), as opposed to other mines that also have track haulage.
11 FMSHRC 1992, 1997 (October 1989)(ALJ). Consequently, he concluded that
the safeguard was invalid because it was not issued on a "mine-by-mine"
basis. Accordingly, the judge vacated an order of withdrawal issued to
SOCCO alleging a violation of the safeguard. For the reasons that follow,
we vacate the judge's decision and remand this case for further proceedings.
I.
Factual Background and Procedural History
On January 28, 1988, Charles Thomas, an inspector of the Department of
Labor's Federal Mine Safety and Health Administration ("MSHA"), conducted a
regular inspection of the Martinka No. 1 Mine, an underground coal mine
operated by SOCCO. Inspector Thomas observed that no shelter holes were
provided along a section of the supply track of the E-4 section. 3 He

may issue a citation pursuant to section 75.1403 are described in 30 C.F.R.
§ 75.1403-1(b)
The authorized representative of the Secretary
shall in writing advise the operator of a specific
safeguard which is required pursuant to § 75.1403
and shall fix a time in which the operator shall
provide and thereafter maintain such safeguard. If
the safeguard is not provided within the time fixed
and if it is not maintained thereafter, a notice
shall be issued to the operator pursuant to section
104 of the Act.
Section 75.1403-9 is entitled "Criteria-shelter holes," and section
75.1403-9(a) provides:
Shelter holes should be provided on track
haulage roads at intervals of not more than 105 feet
unless otherwise approved by the Coal Mine Safety
District Manager(s).
2 Our other safeguard decisions issued today are: BethEnergy Mines,
Inc., 14 FMSHRC , Nos. PENN 89-277-R, etc.; Mettiki Coal Corp., 14 FMSHRC
, Nos. YORK 89-10-R, etc.; and Rochester & Pittsburgh Coal Co., 14 FMSHRC
, Nos. PENN 88-309-R, etc.

3 A shelter hole is an area where a miner can seek protection from haulage
equipment, locomotives, mine cars and other vehicles traveling through a
passageway.

issued an order pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C.
814(d)(2), alleging a violation of a notice to provide safeguard that had

been issued under 30 C.F.R. § 75.1403-9(a) (n. 1 supra).
Order No. 2895348 states:
A shelter hole is not provided along the E4 section
supply track for a distance of 170 feet when
measured. The area is between No. 1 block and No. 3
block. Overcast walls are in the crosscuts left and
right of the track. Notice to provide Safe[g]uard
was issued No. 1JF 5/23/75....
Gov. Exh. 3. In issuing the order, Inspector Thomas also entered special
findings that SOCCO's alleged violation was of a significant and substantial
nature and was caused by its unwarrantable failure to comply. SOCCO
contested the order, the Secretary proposed civil penalties, and the matter
proceeded to an evidentiary hearing before Judge Maurer.
The notice to provide safeguard issued at the Martinka No. 1 Mine by
MSHA Inspector Joe Fraim on May 23, 1975, states:
Shelter holes are not provided at 105 foot intervals
on the 1 Left section supply track for a distance of
400 feet. Shelter holes shall be provided on all
track haulage roads in this mine....
Tr. 29, 31, 53-54; Gov. Exh. 2. Inspector Thomas testified that he had no
knowledge of the reasons, other than the reasons stated on the face of the
safeguard itself, for the issuance of the safeguard. Tr. 54.
Inspector Thomas testified that, if coal cars derailed in the cited
area and a miner was then unable to escape to a shelter hole, he could be
crushed against the wall or suffer broken bones, lacerations, amputations,
and possibly death. Tr. 42-43. Thomas believed that the violation was
aggravated by the fact that the cited area was wet and presented a slipping
hazard to a person running through the area to a shelter hole, and that
visibility in the area was impeded by various factors. Tr. 28, 34, 72.
John Metz, the general mine supervisor of the Martinka Mine and Paul
Zanussi, the mine's accident prevention officer, agreed with Thomas that a
shelter hole was not provided every 105 feet in the cited area, but
maintained that certain extenuating circumstances justified the absence of
the shelter holes. Tr. 76, 83. Messrs. Metz and Zanussi testified that a
small shelter hole (manhole) had been made in the overcast wall in the cited
area, which previously had been accepted by MSHA as an alternate type of
shelter hole. Tr. 62, 79-80, 84-85. When MSHA changed its policy and no
longer accepted such alternate shelter holes, SOCCO determined that it had
to "shoot" approximately 30 new shelter holes in solid ribs of coal.
Tr. 86-87. Metz testified that SOCCO had not yet shot a shelter hole in the
cited area because it was first shooting holes in priority areas that
received the most traffic. He stated that the cited area received only

minimal foot and rail traffic because the area was new at the time of the
inspection and there was not yet a need for anyone to be working in that

location. Metz also stated that it had been his experience that tracks such
as those in the cited area, which were used for mantrips or for carrying
rock dust and other supplies to working sections, were used less frequently
than tracks that hauled coal.
Inspector Thomas testified that it was his understanding that the
subject safeguard notice requires shelter holes every 105 feet on every
track haulage road regardless of the frequency of rail or foot traffic
through the area or whether the mine uses a conveyor belt system to remove
coal. Tr. 61-62. He further testified that the hazard at the Martinka No.
1 Mine was no greater than the hazard at other track haulage mines that were
subject to similar safeguards. Tr. 60. Of the 21 mines using track haulage
that Thomas had inspected, each mine had a similar safeguard notice
requiring shelter holes every 105 feet along track haulage roads. Tr. 50.
A similar safeguard had been issued at SOCCO's Meigs No. 1, Meigs No. 2 and
Raccoon No. 3 mines, and at the American Electric Power System's Windsor
Coal Mine. Tr. 102, 111. Inspector Thomas testified that he could not
recall any underground coal mine using track haulage that did not have a
similar safeguard notice. Tr. 49.
Preliminarily, the judge determined that the Secretary bears the
burden of proving the validity of the underlying safeguard. The judge then
examined the evidence to determine whether the Secretary had successfully
met that burden. The judge placed particular emphasis on Inspector Thomas's
testimony that each of the 21 track haulage coal mines that Thomas had
inspected had a safeguard notice similar to the subject safeguard including
the Windsor Coal Mine and SOCCO's Meigs No. 1, Meigs No. 2 and Raccoon
No. 3
mines. 11 FMSHRC at 1996. The judge also relied on Inspector Thomas's
testimony that he could not recall a single instance in which a safeguard
similar to the subject safeguard had not been issued in an underground coal
mine utilizing track haulage. Id.
Based upon his review of the evidence, the judge found that the
Secretary had failed to establish the validity of the underlying safeguard
notice:
I conclude in this case, the Secretary has failed to
demonstrate that Safeguard No. 1JF was issued on a
"mine-by-mine" basis and more particularly, has
failed to demonstrate that it was issued at the
Martinka No. 1 Mine because of any peculiar
circumstances or physical configuration of that
mine. The safeguard had nothing whatsoever to do
with conditions peculiar to that mine as opposed to
other mines that also have track haulage.
11 FMSHRC at 1997 (emphasis added).
After finding that the safeguard was invalid, the judge determined
that Order No. 2895348 was improperly issued because it was based upon the

invalid safeguard. Accordingly, he vacated the order without reaching the
issues of whether the safeguard had been violated or whether the inspector's
special findings were valid. The Commission granted the Secretary's
petition for discretionary review. Oral argument in this matter was heard
on February 21, 1991, along with argument in the other safeguard cases.
II.
Disposition of Issues
A. The Secretary's authority to issue safeguards addressing
conditions that exist in a significant number of mines

1. The Secretary's general safeguard authority
   The Secretary's general authority to issue safeguards is derived from
   section 314(b) of the Mine Act, 30 U.S.C. § 874(b). That provision is
   contained in a section of the statute that includes interim mandatory safety
   standards for hoisting and mantrips in underground coal mines. Section 314
   is one of several provisions among the interim safety standards of Title III
   of the Mine Act that were carried over from the Coal Mine Health and Safety
   Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)("1969 Coal Act").
   Unlike other provisions of Title III of the Mine Act, section 314
   contains few specific mandatory standards. The specific mandatory standards
   in section 314 concern hoists, brakes on rail equipment and automatic
   couplers.
   The legislative history of section 314(b) is scant. When introduced
   in the House and the Senate, the bills that became the 1969 Coal Act both
   contained the provision now found at section 314(b). The House Report
   states simply that this provision "authorizes the inspector to require other
   safeguards as necessary to reduce the hazards of transporting men and
   materials." H. Rep. No. 563, 91st Cong., 1st Sess. 55 (1969), reprinted in
   Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 94th
   Cong., 1st Sess., Part I Legislative History of the Federal Coal Mine Health
   and Safety Act of 1969 at 1085 ("Legis. Hist."). The Senate Conference
   Report provides:
   Subsection (b) authorizes the inspector to require
   other safeguards for transporting men and materials,
   such as those in the present advisory code. It is
   expected, however, that efforts will be made to
   improve upon these also.
   Legis. Hist. at 1619.(Footnote 4)

4
The reference to the "present advisory code" is to the Federal Mine Safety
Code for Bituminous Coal and Lignite Mines (Part I - Underground Mines),
published by the Bureau of Mines, U.S. Department of the Interior,

On March 28, 1970, the Secretary of the Interior promulgated

regulations at 30 C.F.R. § 75.1403 to implement section 314(b).(Footnote 5)
As originally promulgated, section 75.1403-1 set forth the Secretary's
general interpretation of authority under section 314(b). The regulation
stated, in pertinent part:
(a) The sections in the § 75.1403 series ...
describe safeguards that are required to minimize
commonly recognized hazards with respect to the
transportation of men and materials. Authorized
representatives of the Secretary shall be guided by
these sections in requiring the provision of
safeguards under § 75.1403.
(b) An authorized representative of the
Secretary shall in writing advise the operator of a
specific safeguard to be provided pursuant to
§ 75.1403 and shall fix a time within which the
safeguard shall be provided. If the safeguard is
not provided within the time fixed, a notice
[citation] shall be issued to the operator pursuant
to § 104 of the Act.
35 Fed. Reg. 5221, 5250 (March 28, 1970) (emphasis added).
These regulations established specific safeguards designed to minimize
"commonly recognized" transportation hazards. The regulations required the
Secretary's inspectors to advise an operator in writing if a specific
safeguard must be complied with at a particular mine. The regulations also
provided that enforcement action would be taken against the operator if the
requirements of the safeguard were not met within the time fixed by the
inspector.
Later that year, the Secretary amended these regulations to designate
the specific regulatory "safeguards" in sections 75.1403-2 through -11 as
the "criteria" by which inspectors were to be guided in requiring
safeguards; to authorize inspectors to require safeguards for hazardous
conditions not covered by a specific criterion; and to make clear that
safeguards were to be issued on a "mine-by-mine" basis. 30 C.F.R.
§ 75.1403-1; 35 Fed. Reg. 17923 (November 20, 1970). Section 75.1403-1 also
October 8, 1953. This code was advisory only and contained extensive
provisions directed to improving safety in the transportation of men and
materials. See Coal Mine Health and Safety: Hearings on S. 335 et al.
before the Subcommittee on Labor of the Senate Committee on Labor and Public
Welfare, Part 3, 91st Cong. 1st Sess. 1359-1404 (1969) ("Coal Act
Hearings").
5 The 1969 Coal Act was enforced by the Secretary of the Interior while the
Mine Act is enforced by the Secretary of Labor. We use the term "Secretary"
herein to refer to either official, as appropriate.

stated that, in addition to issuing safeguards based on the published
criteria, "[o]ther safeguards may be required." Section 314(b) was not
changed in the Mine Act and, in all pertinent respects, the implementing
regulations at 30 C.F.R. 75.1403 remain the same.
The Secretary argues in her brief that the only limitation placed on
the Secretary in issuing safeguards is that they address hazards relating to
the transportation of miners and material. S. Br. at 5. Further limits on
the Secretary's powers to issue safeguards, however, are drawn in the
statutory language and in the implementing regulations. A safeguard may be
issued to minimize transportation hazards only in underground coal mines.
An inspector's decision to issue a notice to provide safeguards must be
based on his consideration of the specific conditions at the particular
mine. The requirement that the inspector identify a specific transportation
hazard at a mine before issuing a safeguard flows from the language of
section 314(b), authorizing the issuance of a safeguard that is "adequate,
in the judgment of an authorized representative of the Secretary," to
minimize a transportation hazard. (Emphasis added.) Section 75.1403-1(a)
further clarifies that consideration of the specific conditions giving rise
to a hazard requires inspectors to issue safeguards on a mine-by-mine basis.
Further, safeguards may be enforced at a mine only after the operator is
advised in writing that a specific safeguard will be required as of a
specified date. Section 75.1403-1(b). MSHA's current Program Policy Manual
("Manual") states that the criteria of sections 75.1403-2 through -11 are
not mandatory standards:
It must be remembered that these criteria are not
mandatory. If an authorized representative of the
Secretary determines that a transportation hazard
exists and the hazard is not covered by a mandatory
regulation, the authorized representative must issue
a safeguard notice, allowing time to comply before a
104(a) citation can be issued....
Manual, Volume 5, Part 75, pp. 125-26.(Footnote 6) An inspector's use of
the safeguard provision is not limited by the statute, the regulations, or
the Manual to hazards that are "unique" or "peculiar" to a mine.

6 The title page of the Manual states that the "MSHA Program Policy Manual
is a compilation of the Agency's policies on the implementation and
enforcement of the Federal Mine Safety and Health Act of 1977 and Title 30
Code of Federal Regulations and supporting programs." The United States
Court of Appeals for the D.C. Circuit has stated that, while the Manual may
not be binding on MSHA, "we consider the MSHA Manual to be an accurate
guide
to current MSHA policies and practices." Coal Employment Project v. Dole,
889 F.2d 1127, 1130 n.5 (D.C. Cir. 1989). (The Commission has indicated
that, as an adjudicative body, it is not necessarily bound by statements in

the Manual, although in appropriate circumstances, it may choose to defer to
and apply such pronouncements. See, e.g., King Knob Coal Co., 3 FMSHRC
1417, 1420 (June 1981).)

A safeguard, however, must address a transportation hazard that is
actually present in the mine in question. An MSHA inspector possesses
authority to decide whether a safeguard should be issued at a mine without
consulting with representatives of the operator. In order to issue a notice
to provide safeguards, an inspector must determine that there exists at a
mine an actual transportation hazard that is not covered by a mandatory
standard; that a safeguard is necessary to correct the hazardous condition;
and the corrective measures that the safeguard should require.
The Commission has held that the language of section 314(b) of the Act
is broad and "manifests a legislative purpose to guard against all hazards
attendant upon haulage and transport[ation] in coal mining." Jim Walter
Resources, Inc., 7 FMSHRC 493, 496 (April 1985). The Commission also has
observed that, while other mandatory safety and health standards are adopted
through the notice-and-comment rulemaking procedures of section 101 of the
Act, 30 U.S.C. § 811, section 314(b) extends authority to the Secretary to
create on a mine-by-mine basis what are, in effect, mandatory standards,
without the formalities of rulemaking. Southern Ohio Coal Co., 7 FMSHRC
509, 512 (April 1985)("SOCCO I"). The Commission has recognized that "this
unusually broad grant of regulatory authority must be bounded by a rule of
interpretation more restrained than that accorded promulgated standards."
Id.

2. Validity of safeguards addressing conditions existing
   at a significant number of mines
   Whether a notice to provide safeguards issued under section 75.1403 is
   invalid if it addresses conditions that exist in a significant number of
   mines is a question of first impression for the Commission.(Footnote 7) The
   key question in this case is whether, even if issued on a mine-by-mine
   basis, a safeguard is invalid if it deals with a hazardous condition that is
   commonly encountered in coal mines. In other words, if an inspector
   evaluates the specific conditions at a particular mine, determines that a
   discrete transportation hazard exists at that mine, and issues a safeguard
   notice requiring the elimination of the hazard, is that safeguard rendered
   invalid if similar safeguards have been issued at a significant number of
   other mines?
   a. Statutory considerations
   SOCCO contends that Congress's grant of authority to the Secretary in
   section 314(b), when considered in conjunction with sections 101 and 301(a)
   of the Mine Act, 30 U.S.C. § 811 and 861(a)(infra), reflects an
   understanding that safeguards will not be of general applicability. SOCCO
   maintains that "Congress chose to grant authority to issue safeguards not
   with the intent that it was creating an exception to the requirements of

section 101 [and 301(a)], but on the basis that such safeguards would be
individualistic and peculiar to a given mine." SOCCO Br. 9.

7 This issue was raised in Southern Ohio Coal Co., 10 FMSHRC 963 (August
1988)("SOCCO II"), but was not then resolved by the Commission.

Section 101 of the Mine Act sets forth the procedures the Secretary
must follow to "develop, promulgate, and revise as may be appropriate,
improved mandatory health or safety standards for the protection of life and
prevention of injuries in coal or other mines." 30 U.S.C. § 811(a).
Section 301(a) of the Mine Act states that the interim mandatory safety and
health standard of Title III shall be applicable to all underground coal
mines "until superseded in whole or in part by improved mandatory safety
standards" promulgated by the Secretary under section 101 of the Mine Act.
30 U.S.C. § 861(a). SOCCO reads these two provisions to require the
Secretary to promulgate safety standards for commonly occurring
transportation hazards. It argues that Congress did not intend to exempt
hazards pertaining to the transportation of men and materials from the
rulemaking requirements of section 101.
It is important to understand the genesis of the rulemaking provisions
referred to by SOCCO. The predecessor to the 1969 Coal Act, the Federal
Coal Mine Safety Act Amendments of 1952, 30 U.S.C. § 451 et seq. (repealed),
did not authorize the Secretary of the Interior to promulgate improved
safety standards. The 1969 Coal Act, like the Mine Act, contained interim
safety standards for underground coal mines and empowered the Secretary to
promulgate improved safety standards. The rulemaking provisions were
included, in large measure, to afford the Secretary flexibility to improve
upon the interim standards as experience and technology developed. As
stated in the legislative history, the rulemaking provisions of the Coal Act
"give the Secretary the flexibility needed to devise improved standards as
technology changes, as new safety programs develop, and to provide
protection against hazards not covered by [the interim standards]." S. Rep.
No. 411, 91st Cong., 1st Sess. 86 reprinted in Legis. Hist. at 212.
(Footnote 8) Moreover, section 301(b) of the Mine Act, 30 U.S.C. § 861(b),
contains language from the Coal Act that compels the Secretary "to develop
and promulgate new and improved standards promptly that will provide
increased protection to the miners."
Although Congress empowered and directed the Secretary to provide
increased protection for miners through the promulgation of improved safety
standards, Congress did not provide any benchmark against which to judge
whether improved standards are required. Rather, Congress left that
determination to the Secretary. The rulemaking provisions of sections 101
and 301 of the Mine Act do not circumscribe the authority to issue
safeguards granted to the Secretary in section 314(b). Thus, we conclude
that, in general, it is within the Secretary's sound exercise of discretion

to issue mandatory standards or to issue safeguards for commonly encountered
transportation hazards.

8 The Secretary of the Interior, in a letter to Senator Javits supporting
the 1969 Coal Act, stated that he wanted "to emphasize the need for the
Congress to enact, not only the very detailed interim health and safety
standards in the bill, but also provide ... the necessary flexibility in
this Department to change, upgrade and modify these standards as experience
and technology develop." Coal Act Hearings, Part 5, at 1585 (letter of
Russell Train, Acting Secretary of the Interior, June 16, 1969).

As concluded above, section 314(b) enables an MSHA inspector to issue
a safeguard to ensure the safety of miners when the inspector observes a
transportation hazard that is not addressed by an existing mandatory
standard. We discern nothing in the Mine Act or its legislative history
expressly requiring that the hazard be unique to the mine at issue and
nothing prohibiting the use of similar safeguards to address similar unsafe
conditions that may exist at a number of mines.
SOCCO's argument that the Secretary actually engages in rulemaking
when she issues safeguards for commonly encountered hazards fails to
acknowledge the unique authority given to the Secretary in section 314(b).
In our judgment, SOCCO's argument addresses the legislative wisdom of the
broad authority conferred upon the Secretary by Congress in section 314(b).
We agree that the Secretary might have issued mandatory standards to cover
the hazard involved in this case but, on the basis of the current record, we
are not prepared to say that her failure to do so was an abuse of
discretion. The Secretary has set forth a reasoned basis for using
safeguards to address transportation hazards at underground coal mines. The
Secretary cites the flexibility that safeguards provide to maximize
transportation safety at mines and the authority conferred by section 314 of
the Act to issue safeguards "as necessary" to reduce transportation hazards.
In general, we find this rationale well founded in the statute.
Additionally, courts rarely compel an agency to institute rulemaking
proceedings, even where an interested person has filed a petition for
rulemaking. See, e.g., Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 723
(D.C. Cir. 1984)("[C]ourt will compel an agency to institute rulemaking
proceedings only in extremely rare instances"); Bethlehem Steel Corp v. EPA,
782 F.2d 645, 655 (7th Cir. 1986)("When an agency has discretion as to
whether or not to undertake rulemaking, the courts cannot tell it how to
exercise that discretion.") The United States Court of Appeals for the
District of Columbia Circuit has acknowledged the "broad discretionary
powers possessed by administrative agencies to promulgate (or not
promulgate) rules, and the narrow scope of review to which the exercise of
that discretion is subjected...." WWHT, Inc. v. FCC, 656 F.2d 807, 818
(1981).

b. Precedent
SOCCO relies on the D.C. Circuit's decision in Zeigler Coal Co. v.
Kleppe, 536 F.2d 398 (1976), and on the Commission's decision in Carbon
County Coal Corp., 7 FMSHRC 1367 (September 1985) in challenging the
validity of generally applicable safeguards. We believe that these cases,
which dealt with ventilation plans, are distinguishable and do not support
the operator's position. In Zeigler, the court determined that, because
section 303 of the 1969 Coal Act set forth mine ventilation standards, the
ventilation plans required by section 303(o) were conceived for a narrow
purpose: to provide requirements relating to the particular circumstances of

a given mine. 536 F.2d at 407.(Footnote 9) The Court indicated that if the
Secretary were to attempt to compel such plans to include requirements of a
general nature that should have been formulated as mandatory standards under
section 101, the operator might be able to show that the Secretary had
abused the ventilation plan authority conferred by section 303(o). Id. The
D.C. Circuit, in UMWA v. Dole, 870 F.2d 662, 672 (D.C. Cir. 1989), repeated
its warning, originally made in Zeigler, that "the Secretary should utilize
mandatory standards for requirements of universal application." The Dole
court, however, also reiterated its earlier pronouncements in Zeigler
regarding "the considerable authority of the Secretary to determine what
`should more properly have been formulated as a mandatory standard under the
provisions of § 101.'" 870 F.2d at 671.
We agree with the Secretary that ventilation plans were conceived for
a narrower purpose than safeguards. Comprehensive interim standards were
established by Congress for ventilation. Section 314 of the Mine Act does
not set forth extensive standards for hoisting and mantrips, but subsection
(b) empowers inspectors to issue "other safeguards" as necessary to
eliminate hazards associated with transportation. In addition, Congress
gave MSHA inspectors comparatively more authority in issuing safeguards for
transportation hazards than in imposing ventilation requirements in mine
plans. Further, although roof control plans must provide the same level of
protection as that provided by the plan criteria, even if a particular
criterion is not included in the plan, Dole, 870 F.2d at 670, there is no
similar requirement that the level of protection of safeguard criteria be
provided at any mine. Section 75.1403-1(b) makes clear that the safeguard
criteria are not binding on any operator unless, and until, that operator is
given notice, in a written safeguard from an authorized representative of
the Secretary, that one or more of the criteria are applicable to its mine.
MSHA's Manual reiterates that "these criteria are not mandatory." Manual,
Volume 5, at 125-26. Thus, the Court's logic in Zeigler with respect to the
mine-particularity of ventilation plans is not transferable to safeguards.
SOCCO maintains that in order to construe sections 101 and 314
harmoniously, we must view section 101 as a limitation on the authority
conferred by section 314 of the Mine Act. In Zeigler, however, the Court

held that section 101 of the 1969 Coal Act was violated only if the
Secretary exceeded the scope of her authority under section 303(o) of that
statute. 536 F.2d at 406-07. In the present case, section 101 of the Mine
Act is violated only if a safeguard exceeds the scope of the authority
conferred by Congress in section 314(b). As discussed above, we believe
that issuing a safeguard for a hazardous condition that is not limited to
one mine or a small number of mines is within the scope of the Secretary's

9 Section 303(o) of the Coal Act was carried over as section 303(o) of the
Mine Act, 30 U.S.C. § 863(o), and provides in pertinent part that 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...."

authority, provided the inspector issues the safeguard based on his
evaluation of the specific conditions at a particular mine and on his
determination that such conditions create a transportation hazard in need of
correction.
The Commission's Carbon County decision is consistent with our holding
today. In Carbon County, the Commission found that a ventilation plan
provision that MSHA sought to incorporate into an operator's plan "was the
result of a rote application of [an MSHA] District ... guideline and was not
based upon the particular conditions" at the mine. 7 FMSHRC at
1373.(Footnote 10) The Commission held that MSHA could prevail and have
the subject provision included in the mine plan if it established that
"particular conditions at the mine warrant the inclusion of the [subject]
provision in the ventilation plan." 7 FMSHRC at 1375. Thus, it was the
rote application of the subject provision of the ventilation plan to the
mine in question, pursuant to MSHA District policies, that caused the
Commission to invalidate the provision. MSHA had failed to evaluate whether
the subject provision or the operator's alternative would best promote
safety at the mine in question. Similarly, a safeguard cannot be blindly
imposed but must be based on the inspector's determination that a specific
hazard exists at a particular mine.
In sum, we conclude that the mine-by-mine requirement with respect to
issuance of safeguards does not mean that a safeguard must be based on a
hazard "unique" or "peculiar" to any given mine or small number of mines.
Rather, a safeguard may properly be issued for a commonly encountered
hazard, so long as such safeguard addresses a specific transportation hazard
actually determined by an inspector to be present and in need of correction
at the mine in question. Therefore, in the present proceeding, the fact
that the safeguard was based on a common hazard encountered in a number of
other mines does not, by itself, invalidate the safeguard.
B. Safeguards based upon promulgated criteria

The Secretary also argues that, because the safeguard in this case was
based upon section 75.1403-9(a), one of the promulgated criteria, the
safeguard is valid even though the hazard may be found at a significant
number of mines. Thus, the Secretary asserts that, even if the Commission
holds that a safeguard may not be issued for a commonly encountered hazard,
a safeguard issued for such a hazard is valid if it is based upon one of the
promulgated criteria. She bases her argument on the D.C. Circuit's decision
in Dole. In another case decided this date, BethEnergy Mines, Inc.,
14 FMSHRC , Docket Nos. PENN 89-277-R, etc., we have concluded that the
validity of a safeguard is not affected by the fact that it is based on a
promulgated criterion in section 75.1403 and that the principles with
respect to roof control criteria set forth in Dole are not relevant to cases
involving safeguards. Slip op at 7-8. For the reasons given in BethEnergy,

10 The Dole decision interpreted Carbon County "to make the narrow point
that mine operators are entitled to have alternative procedures evaluated by
the district manager to determine if they achieve the safety objective set OUT
in MSHA regulations and policy." 870 F.2d at 672.

we hold that a safeguard must be based on the specific conditions at a
mine, regardless of whether the safeguard is patterned after a promulgated
criterion, and that an otherwise invalid safeguard is not made valid simply
because it is based on a promulgated criterion.
C. Burden of proof
The judge held that the Secretary bears the burden of establishing the
validity of the underlying safeguard. 11 FMSHRC at 1995. The Secretary
argues that the judge's allocation of this burden was erroneous. We agree
with the judge.
The Mine Act does not specifically state who has the burden of
demonstrating the validity of a safeguard. An operator may challenge a
safeguard's validity in a contest or civil penalty proceeding arising from
the issuance of a citation or order based on that safeguard. The Secretary
is required to prove that the safeguard provided the operator with
sufficient notice of the "nature of the hazard at which it [was] directed
and the conduct required of the operator to remedy such hazard." SOCCO I,
7 FMSHRC at 512.
This Commission, as the administrative adjudicatory body under the
Mine Act, possesses considerable discretion in allocating the burden of
proof, so long as the allocation is rational and consistent with the
policies of the Mine Act. See generally Donovan v. Stafford Const. Co., 732
F.2d 954, 958-59 (D.C. Cir. 1984)(approving Commission's burden of proof
allocations in discrimination cases arising under the Act). One important
factor in allocating the burden of proof is which party possesses knowledge
of the conditions giving rise to the safeguard. We believe that the
Secretary would be in the best position to produce such evidence. While the

mine operator may have more extensive knowledge of the conditions in its
mine, the Secretary would be far more knowledgeable as to why her authorized
representative issued the safeguard.
Another important factor to consider is whether a challenge is in the
nature of an affirmative defense to the charge of a violation. In general,
the Commission, with Court approval, has required the operator to bear the
burden of proof as to affirmative defenses. See, e.g., Stafford Const., 732
F.2d at 959, approving in relevant part, Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd on
other grounds sub. nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3rd Cir. 1981). However, an allegation by an operator that an inspector
did not base a safeguard on the specific conditions actually present in its
mine is not an affirmative defense. Rather, proof of specific mine
conditions is part of the Secretary's prima facie case as to the validity of
the safeguard. We hold that it would be appropriate and consistent with the
purposes of the Mine Act to require the Secretary to prove that the
inspector issued the safeguard based on an evaluation of the specific
conditions at the mine and the determination that such conditions created a
transportation hazard in need of correction. Placing this burden on the
Secretary is consistent with the Commission's holding in SOCCO I, requiring
the Secretary to prove that the safeguard adequately identified the nature

of the hazard and the conduct required of the operator to remedy the hazard.
This allocation of the burden of proof does not require the Secretary
to prove a negative. For example, she is not required to produce evidence
demonstrating that a safeguard was not issued by rote application of an MSHA
guideline rather than on a mine-by-mine basis. The Secretary is required to
demonstrate only that the inspector evaluated the specific conditions at the
particular mine and determined that a safeguard was warranted in order to
address a transportation hazard. In rebuttal, the operator would be free to
offer evidence that the safeguard was not based on conditions present at its
mine or that the safeguard was routinely applied without consideration of
the conditions at its mine.
We note that testimony concerning issuance of a safeguard may not be
available or necessary in all cases. The safeguard in the present matter
was issued in 1975. Nevertheless, in the absence of testimony, the
Secretary may still be able to demonstrate that the safeguard was validly
issued. The language of the safeguard itself may prove that the safeguard
was issued to address specific conditions found at the mine, and that the
safeguard comports with the requirements of SOCCO I.
D. Validity of the safeguard in issue
Judge Maurer concluded that the Secretary failed to demonstrate that
the underlying safeguard in this case was issued on a "mine-by-mine" basis
because he found that the safeguard "had nothing whatsoever to do with
conditions peculiar to [the Martinka No. 1 Mine] as opposed to other mines

that also have track haulage." 11 FMSHRC at 1997 (emphasis added). As
discussed above, we reject the mine-peculiar view of the nature of the
Secretary's safeguard authority. Thus, the safeguard in question is valid
if it was based on the specific conditions at SOCCO's mine and on a
determination by the inspector that those conditions created a
transportation hazard in need of correction, notwithstanding the fact that
similar safeguards may have been issued at other mines.
III.
Conclusion
For the foregoing reasons, we vacate the judge's decision and remand
this proceeding to the judge to evaluate the validity of the safeguard
consistently with the principles discussed in this decision.
The judge should first determine whether the safeguard was issued
based on specific conditions at the Martinka No. 1 Mine that the inspector
found constituted a transportation hazard in need of correction. If the
judge concludes that the safeguard was validly issued, he should then
determine whether the safeguard was violated and whether the order of
withdrawal was properly issued. Taking into consideration the principles
set forth in the Commission's decision in SOCCO I, the judge should
determine whether the safeguard notice "identif[ied] with specificity the
nature of the hazard at which it [was] directed and the conduct required of

the operator to remedy such hazard." 7 FMSHRC at 512. If the judge
determines that there was a violation, he should then consider whether the
violation was of a significant and substantial nature and was caused by
SOCCO's unwarrantable failure to comply with the safeguard, and assess an
appropriate civil penalty.
Notwithstanding the foregoing legal determinations, we find it
appropriate to conclude this decision by questioning, from the standpoint of
policy, whether the proliferation of safeguards is the most effective method
of addressing the more commonly encountered hazards in underground coal mine
transportation. Transportation hazards are a major cause of injuries and
fatalities in underground coal mines, but have rarely been the subject of

rulemaking. We note that in the Department of Labor's most recent
Semiannual Regulatory Agenda, the Secretary has recognized the need for
specific mandatory safety standards to protect miners from the hazards
associated with the hoisting and transportation of persons and materials.
56 Fed. Reg. 53584 (October 21, 1991). There, the Secretary states that
"[t]ransporting persons and material has been a leading cause of fatal
accidents in underground coal mines" and that she "has very few mandatory
standards addressing haulage hazards." Id. Because the use of individual
safeguards, issued on a mine-by-mine basis, may not adequately protect all
affected miners from haulage related hazards, we strongly suggest that the
safety of underground coal miners would be better advanced by the

promulgation of mandatory safety standards aimed at eliminating
transportation hazards.