Rawl Sales & Processing Co.

Plain-English summary

Rawl Sales operated an idle underground mine as a conduit for a conveyor belt carrying coal from another mine to a preparation plant. MSHA cited Rawl for not conducting an on-shift beltline examination during a period when no employees were working underground. Judge Jerold Feldman concluded that applying 30 C.F.R. § 75.362(b) in those circumstances would expose examiners to underground hazards without identifying miners who would be protected by the examination. The judge granted summary decision for Rawl and vacated Citation No. 7175284.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.362(b)
• Outcome: Citation No. 7175284 was vacated.
• Key point: The on-shift beltline examination rule did not require staffing an otherwise unoccupied underground mine during the challenged period on this record.

Full text (FMSHRC public release)

FED ERA L M INE SA FETY A ND HEA LTH REV IEW COM M ISSION
OFFICE OF A DM INISTRA TIVE LA W JUDGES
2 SK YLINE, 10th FLOOR
5203 LEESBURG PIK E
FA LLS CHURCH, VIRGINIA 22041

                                     February 25, 1999

RAWL SALES & PROCESSING CO., : CONTEST PROCEEDING
Contestant :
v. : Docket No. WEVA 99-13-R
: Citation No. 7175284; 10/1/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Rocky Hollow Mine
ADMINISTRATION (MSHA), :
Petitioner :

                                SUMMARY DECISION

Appearances: William K. Doran, Esq., Heenan, Althen & Roles, Washington, D.C.,
for the Contestant;
Douglas N. White, Associate Regional Solicitor, Yoora Kim, Esq.,
Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia,
for the Petitioner.

Before: Judge Feldman

    Before me for consideration is a notice of contest with respect to Citation No. 7175284

filed by Rawl Sales & Processing Company (the contestant) against the Secretary of Labor (the
Secretary) and the Mine Safety and Health Administration (MSHA) pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. ' 815. The contestant
challenges the applicability of the on-shift beltline examination provisions of the mandatory safety
standard in section 75.362(b), 30 C.F.R. ' 75.362(b), to an unattended underground beltline that
is operating when no employees are working underground.1

    The parties have stipulated to all issues of material fact and have filed motions for

summary decision. Oral argument was conducted on January 25, 1999, at the Commission=s
Office of Administrative Law Judges in Falls Church, Virginia. The parties= briefs that address
issues raised during the oral argument have been considered in the disposition of this matter.
As discussed below, the Secretary=s application of section 75.362(b) to the facts in this

      1
     For the purposes of this decision, reference to on-shift examination of the Abeltline@

includes examination of both the belt conveyor and the belt conveyor haulageway.

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case must be rejected because it mandates the exposure of on-shift beltline examiners, who
would otherwise not be required to go underground, to the hazards of underground mining.
Accordingly, Citation No. 7175284 shall be vacated.
I. Statement of the Case

     The contestant=s Rocky Hollow underground mine is an idle mine. The Rocky Hollow

beltline is used as a conduit beltline between the beltline of Sycamore Fuels Mine No. 1
(Sycamore Fuels), a separate and distinct adjacent underground coal mine from which coal is
extracted, and the beltline of the Sprouse Creek Preparation Plant (Sprouse Creek), the coal=s
ultimate destination. Specifically, the coal from Sycamore Fuels is brought to the surface by
beltline. The coal is then transported approximately : mile on a surface beltline whereupon it
enters underground traveling approximately 52 miles through the idle Rocky Hollow mine.
Upon surfacing from Rocky Hollow, the beltline runs approximately 100 feet to the Sprouse
Creek Processing Plant.

     Coal is extracted from Sycamore Fuels during two shifts, 7:00 a.m. to 4:00 p.m., and,

4:00 p.m. to midnight. Sycamore Fuels runs a non-production maintenance shift from midnight
until 7:00 a.m. Each day from 7:00 a.m. until 11:30 p.m., coal is transported from Sycamore
Fuels on the beltline to the processing plant, which includes the beltline through Rocky Hollow.
Rocky Hollow=s preshift examination begins at 3:30 a.m., and, Rocky Hollow operates one work
shift from 7:30 a.m until 3:30 p.m. There are seven hourly and two salaried supervisory personnel
that work underground at Rocky Hollow during this shift. Their job duties consist of performing
underground preshift and on-shift examinations, as well as examining, cleaning and maintaining
the beltline and related areas of the mine. There are no personnel underground at Rocky Hollow
from 3:30 p.m. to 11:30 p.m. when coal is transported on the beltline through Rocky Hollow
from Sycamore Fuels.

    At issue is the validity of Citation No. 7175284, issued on October 1, 1998, that seeks to

apply the on-shift beltline provisions of section 75.362(b) to the Rocky Hollow beltline during the
3:30 p.m. to 11:30 p.m. Ashift,@ a period during which no personnel are assigned to work
underground at Rocky Hollow. Citation No. 7175284 states:

   Coal is being transported through the [Rocky Hollow] mine, from Sycamore Fuels
   to the Sprouse Creek Preparation Plant, on the 1530 to 2330 shift, an on-shift
   examination is not being conducted on this shift. No one is underground at this
   time. (Emphasis added).

Section 75.362(b) provides:

   During each shift that coal is produced, a certified person shall examine for
   hazardous conditions along each belt conveyor haulageway where a belt conveyor
   is operated. This examination may be conducted at the same time as the preshift
   examination of belt conveyors and belt conveyor haulageways, if the examination
   is conducted within 3 hours of the oncoming shift. (Emphasis added).

   It takes approximately three to four hours to perform an on-shift examination

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of the Rocky Hollow beltline. For the first eight weeks following the issuance of Citation
No. 7175284, in order to abate the citation and continue operating after 3:30 p.m., the contestant
extended the work shift of four Rocky Hollow miners for three to four hours to perform the
on-shift examination required by MSHA. As of December 2, 1998, the contestant has stopped
the belt at 3:30 p.m. to avoid paying overtime.

   II. Pertinent Stipulated Facts

                                    A. Rocky Hollow

   1. Contestant operates the Rocky Hollow Mine which is an underground coal
   mine through which a conveyor beltline carries raw coal from Sycamore Fuels
   Mine No. 1 to the Sprouse Creek Preparation Plant.

   2. Rocky Hollow was an actively producing coal mine from the mid-1970's until
   November, 1994. Today Rocky Hollow is classified BA AActive-Nonproducing@
   because it is an underground coal mine in which no coal is being extracted from
   the earth.

   3. Rocky Hollow is inactive and it exists solely as a tunnel mine C the purpose of
   which is to serve as throughway for the conveyor belt between Sycamore Fuels
   and the Sprouse Creek Preparation Plant.

   4. Rocky Hollow=s MSHA Mine Identification Number is 46-05195.

   5. Sycamore Fuels, Inc. operates the Sycamore Fuels mine, MSHA Mine
   Identification Number 46-01756. Coal is currently being produced at Sycamore
   Fuels.

   6. Rawl Sales & Processing Co. Operates the Sprouse Creek preparation plant,
   MSHA Mine Identification Number 46-05368. Coal from Sycamore Fuels is
   processed at Sprouse Creek.

   7. Sycamore Fuels is located approximately 8 miles by road from the Sprouse
   Creek Plant.

   8. A conveyor beltline carries raw coal from Sycamore Fuels to be processed at
   Sprouse Creek. The beltline runs approximately .75 mile above the surface at
   Sycamore Fuels, then runs approximately 5.5 miles underground through the idle
   Rocky Hollow mine. From Rocky Hollow, the beltline runs approximately 100 feet
   to Sprouse Creek.

   9. Sycamore Fuels mines coal on two production shifts (7:00 a.m.- 4:00 p.m.
    and 4:00 p.m.- 12:00 a.m.) and runs a non-production maintenance shift from
   12:00 a.m.- 7:00 a.m.

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10. Ordinarily, the beltline from Sycamore Fuels to Sprouse Creek operates each
    day from approximately 7:30 a.m. until 11:30 p.m.

11. Rocky Hollow ordinarily operates one work shift from 7:30 a.m.- 3:30 p.m.
    A total of 7 hourly miners and 2 salaried supervisory personnel work at Rocky
    Hollow. Except for one hourly electrician, all personnel are certified to perform
    underground preshift and on-shift examinations. Their duties consist solely of
    functions related to examination, cleaning and maintenance of the beltline and
    related areas of the mine.

12. Each working day, three miners at Rocky Hollow perform a preshift
    examination beginning at approximately 3:30 a.m. The miners perform an
    on-shift examination of Rocky Hollow during the 7:30 a.m.- 3:30 p.m. shift.

13. Rocky Hollow is equipped with an automatic fire warning system which is
    active 24 hours per day. The conveyor belts are flame-resistance as required in
    MSHA regulations.

14. Methane levels at Rocky Hollow are such that Rocky Hollow is not required
    under Section 103(i) of the Federal Mine Safety and Health Act to undergo spot
    checks for methane.

15. The roof at Rocky Hollow is composed predominately of shale.

16. Rocky Hollow has an approved roof control plan and a ventilation plan.

17. There are four portals to Rocky Hollow. All four portals are intake air since
    there is no coal being produced at the mine. A mine fan operates 24 hours per day
    and is examined daily.

18. The hourly miners at Rocky Hollow are represented by the United Mine
    Workers of America and their terms and conditions of work are covered by a
    collective bargaining agreement.

                       B. Citation Number 7175284
    

19. On October 1, 1998, a Mine Safety and Health Administration Inspector
    issued Citation No. 7175284 to Contestant alleging a violation of 30 C.F.R.
    ' 75.362(b) as follows:

    Coal is being transported through the mine from Sycamore Fuels to
    Sprouse Creek Preparation Plant, on the 1530 to 2330 shift, an
    on-shift examination is not being conducted on this shift. No one is
    underground at this time.

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Page 5

   This was the first time Contestant had been cited for a violation of this standard.

   20. On October 30, 1998, Contestant filed a Notice of Contest of Citation
   No. 7175284.

   21. The approximately 5.5 miles long portion of the beltline which runs
   underground through Rocky Hollow is the subject of Citation No. 7175284.

   22. If Contestant assigns miners to examine the beltline between 3:30 p.m. and
   11:30 p.m., Contestant, among other things, would be required to perform
   preshift examinations of the areas the miners would have to enter to perform the
   on-shift examination of the beltline.

   23. In addition, while miners are underground, the mine will have to assign
   a person to monitor the main mine fan on the surface, pursuant to 30 C.F.R.
   ' 75.311(e).

                                  C. Summary Decision

   24. The parties agree that there are no material facts at issue and this case may be
   resolved on summary decision.


   III. Discussion and Evaluation

    Ordinarily, when the language of a regulatory provision is clear, the terms of that

provision must be enforced as they are written unless the regulator clearly intended the words to
have a different meaning or unless such a meaning would lead to an absurd result. See, e.g.,
Utah Power & Light Co., 11 FMSHRC 1926, 1930 (October 1989) (citing Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)). However,
regulatory provisions that were promulgated in contemplation of, and intended to apply to,
routine mining operations such as those at Sycamore Fuels, may become contrary to legislative
intent when applied to unusual circumstances such as those that exist at the unstaffed Rocky
Hollow mine. In this regard, the Commission has stressed that Aa [regulatory] standard must be
construed in accordance with the statutory language upon which it is based.@ Consolidation
Coal Company 15 FMSHRC 1555, 1557 (August 1993).

    The preshift regulatory provisions in section 75.360,2 and the on-shift regulatory

provisions in section 75.362, implement the statutory requirements for preshift and on-shift
examinations set forth in sections 303(d)(1) and (e) of the Mine Act, 30 U.S.C. ' 863(d)(1)

   2
    Section 75.360 specifies a preshift examination must be performed Awithin 3 hours

preceding the beginning of any shift during which any person is scheduled to work or travel
underground.@ (Emphasis added). 30 C.F.R. ' 75.360.

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and (e). These statutory provisions require preshift and on-shift examinations in active workings
and working sections.

    The Mine Act and the Secretary=s regulations define Aactive workings@ as Aany place

in a coal mine where miners are normally required to work or travel.@ 30 U.S.C. ' 878(g)(4);
30 C.F.R. ' 75.2. A[W]orking section@ is defined in the Mine Act and the regulations as Aall
areas of the coal mine from the loading point of the section to and including the working faces.@
30 U.S.C. ' 878(g)(3); 30 C.F.R. ' 75.2.

   Section 303(d)(1), in pertinent part, provides:

   [1] Within three hours immediately preceding the beginning of any shift, and
   before any miner in such shift enters the active workings of a coal mine,
   certified persons designated by the operator of the mine shall examine such
   workings and any other underground area of the mine designated by the
   Secretary or his authorized representative. [2] Each such examiner shall examine
   every working section in such workings and shall make tests in each such
   working section for accumulations of methane with means approved by the
   Secretary for detecting methane and shall make tests for oxygen deficiency with a
   permissible flame safety lamp or other means approved by the Secretary; examine
   seals and doors to determine whether they are functioning properly; examine and
   test the roof, face, and rib conditions in such working section; examine active
   roadways, travelways, and belt conveyors on which men are carried, approaches
   to abandon areas, and accessible falls in such section for hazards; test by means of
   an anemometer or other device approved by the Secretary to determine whether
   the air in each split is traveling in its proper course and in normal volume and
   velocity; and examine for such other hazards and violations of mandatory health
   or safety standards, as an authorized representative of the Secretary may from
   time to time require. [3] Belt conveyors on which coal is carried shall be
   examined after each coal producing shift has begun. (Sentence numbers
   added). (Emphasis added).

   Section 303(e) of the Mine Act, in pertinent part, states:

   At least once during each coal producing shift, or more often if necessary for
   safety, each working section shall be examined for hazardous conditions by
   certified persons designated by the operator to do so. (Emphasis added).

    Under the facts of this case, there is a working section and there are active workings at

Sprouse Creek during the period 3:30 p.m. through 11:30 p.m. However, the active workings at
Sprouse Creek during this period do not provide the statutory predicate for preshift and on-shift
inspections at Rocky Hollow.

    There are no active workings at Rocky Hollow from 3:30 p.m. to 11:30 p.m. because

there is no Aoncoming shift@ entering Rocky Hollow at 3:30 p.m. Moreover, the Commission
has determined, and the Secretary has conceded, that coal carrying belt equipment, alone, as

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referred to in the third sentence of section 303(d)(1) of the Mine Act, does not constitute an
Aactive working@ that requires an on-shift inspection. See Jones & Laughlin Steel Corporation, 5
FMSHRC 209, 1212 (July 1983).

    However, the Secretary argues the Commission=s Jones & Laughlin decision is not

controlling because it only applies to belt conveyors while section 75.362(b) applies to belt
conveyor haulageways. Thus, the Secretary, relying on Southern Ohio Coal Co., 12 FMSHRC
1498, 1501 (August 1990), asserts areas or places in a mine are Aactive workings@ even if miners
are required to travel in such areas on an irregular basis. In Southern Ohio the Commission
determined a tailgate entry that is only examined on a weekly basis is an Aactive working@ area.

    However, a tailgate is distinguishable from this case because the tailgate is in a mine with

working sections and active workings. The tailgate can serve as an escapeway during any
working shift. In short, Southern Ohio=s mine contained the missing link that is required to
support the position taken by the Secretary in this case - - people. Consequently, the Secretary=s
reliance on Southern Ohio is misplaced.

    In the present case, there are no miners exposed to a dangerous underground mine

environment in the Rocky Hollow mine from 3:30 p.m. until 11:30 p.m. Moreover, at oral
argument, the Secretary was unable to identify any mine personnel at Sycamore Fuels or the
Sprouse Creek Preparation Plant who were, in any way, exposed to a hazard because of the
contestant=s failure to perform an on-shift inspection of the Rocky Hollow beltline during the
hours from 3:30 p.m. to 11:30 p.m. In addition, counsel for the Secretary could not identify any
Sycamore Fuels or Sprouse Creek employees who would be at risk even if an explosion occurred
in the Rocky Hollow mine. In this regard, it is significant that the alleged violation in this case
was designated as nonsignificant and substantial (not reasonably likely to contribute to injury).

    Turning to the statutory language of the first sentence in section 303(d)(1) of the Mine

Act, while it is true the Secretary may designate any area of a mine, such as a beltline, for special
preshift examination, the anticipated presence of miners underground is a prerequisite to such
special examination. The plain language of section 303(d)(1) makes clear that preshift
examinations are required three hours preceding the beginning of any shift only when it is
contemplated that a miner in such shift will enter the active workings of the coal mine.
Logic dictates there is no need for a preshift examination if miners are not going underground.3

    Similarly, if a preshift of Rocky Hollow is not required for the 3:30 p.m. to 11:30 p.m.

period because no one is underground, there is no basis for requiring an on-shift examination. An
on-shift examination would expose the on-shift examiners to significant mine hazards given the
fact that they would be called upon to conduct a four hour examination of a beltline that is 52
miles long.

   3
     At the oral argument, the Secretary=s counsel conceded a preshift examination

at Rocky Hollow prior to 3:30 p.m. is not required by section 75.360 because no miners are going
underground. (Tr. 55).

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     Ironically, although beltline examinations may serve the interest of preventing

interruptions in production because such examinations may disclose conditions before it is
necessary to deenergize the beltline, the Secretary has not articulated why such examinations
would enhance safety given the absence of miners who could be exposed to any hazard.
Moreover, even the mandatory on-shift examination sought by the Secretary would result in the
unattended operation of the beltline after the on-shift examination was completed. Accordingly, it
is not clear that the references to Aeach shift that coal is produced@ and Aoncoming shift@ in section
75.362(b) apply to the unstaffed Rocky Hollow mine during a period when there is no working
section and no working place.

    Having concluded that the plain meaning of section 75.362(b) does not support the

Secretary=s position, the focus shifts to whether deference should be accorded to the Secretary=s
statutory and regulatory interpretation. The Secretary asserts she should be accorded Agreat
deference to [her] interpretation of a regulation [she] has promulgated under a statute [she] is
entrusted with administering. . . .@ (Sec. br. at p.3). While it is within this Commission=s
discretion to accord deference to the Secretary=s reasonable statutory and regulatory
interpretations when ambiguity exists, deference is particularly appropriate in matters where the
regulation involves considerations that A>require significant expertise and entail the exercise of
judgment grounded in policy concerns.=@ Thomas Jefferson Univ. v. Shalala, 129 L. Ed. 405, 415
(1994) (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991)).

    In essence, the Secretary asserts that it is safer to expose beltline examiners to the hazards

of underground mining in an attempt to prevent a belt malfunction and possible fire. However,
the Secretary has failed to identify any miners who would be exposed to any hazard if a fire
occurred because the beltline was not routinely examined after 3:30 p.m. A fire or other smoke
hazard could occur at any time, anywhere along this 52 mile belt, with or without the presence of
belt examiners. In such event, it is more desirable to have personnel on the surface rather than
underground.

    In apparent recognition of the implicit underground safety hazards associated with

on-shift examinations, the Secretary also argues that on-shift examinations during the eight hour
period preceding the preshift examination will reduce the hazards faced by preshift examiners.
However, the preshift examination begins at 3:30 a.m., four hours after the beltline is shut down.

The minimal risk, if any, posed to the preshift examiners does not justify exposing the on-shift
examiners to the hazards associated with an operational beltline. Moreover, as noted above, even
the Secretary would permit the beltline=s unattended operation after the on-shift examination for a
substantial part of the eight hour Ashift@ immediately preceding the 3:30 a.m. preshift examination.

    Finally, the Secretary contends the failure to on-shift the beltline may contribute to a fire

which would pose a hazard to firefighters. The potential hazard to victims trapped underground
in the event of a fire, far outweighs the potential hazard to firefighters who would enter the mine
from the surface fully prepared to extinguish a fire.

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     Admittedly, I am less than comfortable with the concept of an unattended beltline.

I have been ready and willing to defer to the Secretary upon a showing of valid policy concerns.
However, the Secretary=s insistence on an on-shift examination during the period 3:30 p.m.
to 11:30 p.m. cannot be reconciled with her conclusion that a preshift examination is not required.
Moreover, notwithstanding the Secretary=s failure to clearly identify anyone who is exposed to
risk, the Secretary=s vaguely expressed safety concerns are substantially undermined by the
approximate four hour unattended operation of the beltline that would occur after the
on-shift examination mandated by the Secretary is completed. Consequently, I am unable to defer
to the Secretary because she has failed to advance any consistent, convincing policy concerns that
justify interpreting the pertinent statutory and regulatory provisions in a way that prohibits
unattended operation of the Rocky Hollow beltline.

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                                      ORDER

     In view of the above, Rawl Sales & Processing Company=s Motion for Summary Decision

in this contest proceeding IS GRANTED. Consequently, Citation No. 7175284
IS VACATED.

                                      Jerold Feldman
                                      Administrative Law Judge

Distribution:

William K. Doran, Esq., Heenan, Althen & Roles, 1110 Vermont Avenue, N.W., Suite 400,
Washington, D.C. 20005 (Certified Mail)

Douglas N. White, Associate Regional Solicitor, Yoora Kim, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 (Certified Mail)

/mh

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