<DOC>
[DOCID: f:bluest.wais]
BLUESTONE COAL CORPORATION
June 18, 1997
WEVA 93-165-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
June 18, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEVA 93-165-R
: WEVA 94-117
BLUESTONE COAL CORPORATION :
BEFORE: Jordan, Chairman; Marks, Riley and Verheggen,
Commissioners
DECISION
BY THE COMMISSION:
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. (1994) ("Mine Act" or "Act"), involves
alleged significant and substantial ("S&S") violations by
Bluestone Coal Corporation ("Bluestone") of 30 C.F.R. �
77.1600(b),[1] for failure to standardize and post traffic signs
warning of a steep downgrade on its haulage road, and 30 C.F.R. �
77.1607(c),[2] for failure to ensure that a truck was operated at
a speed that is prudent and consistent with the haulage road
conditions. Administrative Law Judge David Barbour concluded
that Bluestone did not violate section 77.1600(b), but that it
did violate section 77.1607(c) and that the violation was S&S.
16 FMSHRC 2500, 2511-19 (December 1994) (ALJ). The Commission
granted cross-petitions for discretionary review filed by the
Secretary challenging the judge's conclusion that there was no
violation of section 77.1600(b), and by Bluestone challenging the
judge's conclusion that it committed an S&S violation of section
77.1607(c). For the reasons that follow, we reverse in part,
affirm in part, and remand.
I.
Factual and Procedural Background
Bluestone operates the Keystone No. 6 Strip Mine in McDowell
County, West Virginia. 16 FMSHRC at 2500, 2509; Gov't Ex. 2, at
3. It contracted with Blackstone Coal Company ("Blackstone") and
other independent contractors to develop and operate underground
coal mines on the property. 16 FMSHRC at 2502, 2509-10.
Blackstone, in turn, subcontracted with Mullins Trucking Company
("Mullins") to transport coal to the Keystone No. 1 Preparation
Plant. Id. at 2510; Gov't Ex. 2, at 3.
On January 11, 1993, Theodore Payne, a truck driver for
Mullins, was driving a haulage truck loaded with coal from the
Blackstone No. 39 Mine to the preparation plant, a distance of
about 7.3 miles. 16 FMSHRC at 2502; Gov't Ex. 2, at 3, 5. The
haulage road consists of various state, county, and private
roads. 16 FMSHRC at 2502. It has several curves and the final
mile before the preparation plant has a steep downgrade ranging
up to 16 percent. Id. at 2503, 2505, 2516; Tr. I 50; Jt. Ex. 1;
see also Gov't Ex. 2, at 5-6.[3] In addition to miners, members
of the public use the haulage road. 16 FMSHRC at 2503. As Payne
descended the final grade of the haulage road, he lost control of
his truck's speed. Id. at 2502-03, 2516-17. He called on his
C.B. radio to warn other drivers that the truck was out of
control. Id. at 2507. After traveling about 200 feet past the
turn for the access road to the preparation plant, Payne jumped
from the truck and rolled 56 feet to his death. Id. at 2502,
2505; Gov't Ex. 2, at 2. Shortly thereafter, the truck struck an
embankment at a curve in the haulage road and overturned. 16
FMSHRC at 2502-03; Gov't Ex. 2, at 5.
Although MSHA's investigation of the accident failed to
reveal what caused Payne to lose control of the truck, MSHA
personnel suspected that the truck might have lost its brakes,
the transmission might have gone out of gear, or parts might have
dropped off the truck. 16 FMSHRC at 2516; Tr. I 122, 151-52,
187, 240-41; Tr. II 17. MSHA accident investigator Jerry Sumpter
issued Bluestone Citation No. 2723400,[4] pursuant to section
104(a) of the Mine Act, 30 U.S.C. � 814(a), alleging an S&S
violation of section 77.1600(b) for insufficient traffic signs
warning of the steep downgrade. 16 FMSHRC at 2504-05; Gov't Ex.
4. In addition, Sumpter issued Bluestone Citation No.
2723974,[5] pursuant to section 104(a), alleging an S&S violation
of section 77.1607(c) because the truck exceeded an operating
speed consistent with road conditions. 16 FMSHRC at 2507; Gov't
Ex. 5. The Secretary subsequently proposed civil penalty
assessments of $6,000 for each of these alleged violations and
Bluestone challenged the proposed assessments. The alleged
violations were abated by installing warning signs and re-
instructing truck drivers to be aware of conditions of the
haulage road and to operate trucks in a manner specified by the
truck manufacturers regarding payload weight limits. 16 FMSHRC
at 2506-07; Gov't Exs. 4 & 5. In addition, four speed berms and
three escape ramps were installed. 16 FMSHRC at 2505, 2517;
Gov't Ex. 5.
Following an evidentiary hearing, the judge concluded that
Bluestone did not violate section 77.1600(b). 16 FMSHRC at 2515.
He determined that the language of the standard "does not specify
which rules, signals or warning signs are required to be
exhibited at certain places. Rather, it mandates that if they
are exhibited they be uniform in appearance and location and they
be posted, that is, placed where they may be observed and read."
Id. at 2513. The judge found that "Bluestone was not cited
because its rules, signals and signs lacked uniformity or were
exhibited improperly. Rather, it was cited because it did not
have certain specific signs in the places MSHA believed they
should have been and because it did not include among its rules
and regulations those MSHA thought necessary." Id. at 2513. He
found that the Secretary lacks standards that require operators
to install warning signs at hazardous areas or that specify the
content of traffic rules. Id. at 2514-15. Accordingly, he
vacated the citation. Id. at 2521.
However, the judge concluded that Bluestone violated section
77.1607(c). 16 FMSHRC 2517. He based his determination on his
finding that Payne failed to retain control of the truck. Id. at
2516. The judge determined that the truck was traveling too fast
to negotiate a curve in the haulage road and that, therefore, its
speed was neither prudent nor consistent with the grade, curve,
and condition of the truck's brakes. Id. at 2517. The judge
specifically rejected Bluestone's challenge to the Secretary's
alleged requirement that it abate the hazard by installing speed
berms and escape ramps and limiting haulage truck payload weight.
Id. at 2517-18. He reasoned that, since Bluestone had not
objected to the abatement measures by refusing to comply and then
contesting any resulting section 104(b) withdrawal order, it had
waived its right to challenge the abatement measures. Id. In
addition, the judge concluded that the violation was S&S because
the speed of the truck contributed to Payne's death. Id. at
2519. He assessed a civil penalty of $500. Id. at 2521.
II.
Disposition
A. Section 77.1600(b)
The Secretary requests that the Commission accord deference
to her interpretation of section 77.1600(b). S. Br. at 3-6. She
argues that the judge ignored the purpose of the standard, which
is "to ensure that mine operators post adequate and appropriate
traffic requirements." Id. at 4-5. The Secretary contends that
the judge misinterpreted section 77.1600(b) to require operators
to post traffic "requirements" if they have them, but not if they
do not have them. Id. at 5. She argues that the judge's
interpretation of the standard would render it unenforceable and
would produce an absurd result. Id.
Bluestone responds that no deference is due because the
Secretary has not consistently interpreted the standard to
require the posting of particular types of signs, referring to an
interpretation offered by Investigator Sumpter. B. Resp. Br. at
4-7. The company argues that the standard fails to provide
notice of the types of signs required to be posted or the
particular hazards to be addressed. Id. at 2-3, 7-9. Bluestone
also argues that it was in compliance with the standard because
it had written traffic rules for the haulage road that were
standardized and posted. Id. at 3.
The Commission has long recognized that where 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. Consolidation
Coal Co., 18 FMSHRC 1541, 1545 (September 1996) (citations
omitted). It is only when the plain meaning is doubtful or
ambiguous that the issue of deference to the Secretary's
interpretation arises. Pfizer Inc. v. Heckler, 735 F.2d 1502,
1509 (D.C. Cir. 1984). Since we find that the meaning of section
77.1600(b) is clear and unambiguous, we do not address the
Secretary's argument that her interpretation of the standard is
entitled to deference.
In the absence of a statutory or regulatory definition of a
term, or a technical usage, we look to the ordinary meaning of
the terms used in a regulation. See Peabody Coal Co., 18 FMSHRC
686, 690 (May 1996). The prescriptive wording of section
77.1600(b) that "[t]raffic . . . warning signs shall be
standardized at each mine and posted" clearly and unambiguously
requires mine operators to post warning signs at their mines.
The term "warning," in turn, refers to hazardous, dangerous
conditions. "Warning" is defined as "announcing something
imminent or impending or the presence of danger." Webster's
Third New International Dictionary (Unabridged) 2577 (1986). It
is also defined more succinctly as "[a] pointing out of danger."
Black's Law Dictionary 1584 (6th ed. 1990). Additionally, the
term "post" means "to publish, announce, or advertise by or as if
by the use of a placard" and "to make (a person) familiar with a
subject." Webster's at 1771. These definitions indicate that
the term "traffic warning sign" means a sign that points out or
announces a road hazard which, to be effective, must be posted at
some location before a driver encounters the hazard. Thus, we
conclude that section 77.1600(b) required Bluestone to post a
sign or signs warning of the steep, 16-percent downgrade, the
obvious danger of which was never disputed by Bluestone.
We are unpersuaded by the judge's comparison of section
77.1600(b) with 30 C.F.R. � 56.9100(b), entitled "Traffic
control," by which he intended to demonstrate that section
77.1600(b) fails to require that operators "install warning signs
at hazardous areas." 16 FMSHRC at 2514. Section 56.9100(b)
requires that "[s]igns or signals that warn of hazardous
conditions shall be placed at appropriate locations at each
mine." The only significant difference between this requirement
and section 77.1600(b) is that section 56.9100(b) explicitly
states that signs warn of "hazardous conditions" and "be placed
at appropriate locations," both of which are implicit elements of
section 77.1600(b) as explained above. More significantly, both
standards unambiguously require operators to post traffic warning
signs. The judge's contrary conclusion with respect to section
77.1600(b) is at odds with the clear language of the standard.
We are also unpersuaded by Bluestone's argument that section
77.1600(b) fails to provide notice of the types of signs required
to be posted or the particular hazards required to be addressed.
B. Resp. Br. at 2-3, 7-9. From our conclusion that section
77.1600(b) clearly requires that signs warning of traffic hazards
must be posted at hazardous locations, it follows that the
standard provided Bluestone with notice that it was obligated to
post a warning sign at the steep downgrade. We also find
unavailing Bluestone's argument that it was in compliance with
the standard because it had written traffic rules that were
standardized and posted at the mine. Id. at 3. Although the
record indicates that Bluestone had provided written traffic
rules for the haulage road to its contractors (Tr. II 189-90; B.
Ex. 1), the fact remains that no sign was posted on the haulage
road warning truck drivers of the steep downgrade. We thus
conclude that the record supports no other conclusion than that
Bluestone violated the standard.
Based on the foregoing, we conclude that the judge erred in
determining that Bluestone did not violate section 77.1600(b).
Accordingly, we reverse the judge's determination and remand for
a determination of whether the violation was S&S and assessment
of an appropriate civil penalty.
B. Section 77.1607(c)
Bluestone argues that the Secretary's interpretation of
section 77.1607(c) is unreasonable. B. PDR at 4-8; B. Reply
Br. at 2-4. Bluestone asserts that it should not have been
cited for the violation because the standard only applies to
drivers of mobile equipment who have demonstrated lack of
prudence in operating such equipment. B. PDR at 4-5; B.
Reply Br. at 2-4. Bluestone further maintains that the
citation is invalid because it is based on a failure to
fulfill requirements, i.e., installation of speed berms and
escape ramps, not contemplated by the standard, and that the
judge erred in concluding that Bluestone must object to such
requirements by refusing to abate and then seeking review of
any resulting section 104(b) withdrawal order. B. PDR at 5-
11. Bluestone explains that it is not objecting to the
propriety of the abatement measures but that such measures
indicate the unreasonableness of the Secretary's
interpretation of the standard. B. Reply Br. at 2-4.
The Secretary responds that the plain language of section
77.1607(c) supports the judge's determination that Bluestone
violated the standard. S. Resp. Br. at 3-4. He asserts
that the proposed method of abatement has no effect on the
issue of violation. Id. at 5-6. Further, the Secretary
argues that under the Mine Act, Bluestone is liable without
fault for its contractor's violative action. Id. at 6-7.
1. Violation
The clear language of section 77.1607(c) supports the
judge's determination that the standard requires that mobile
equipment be operated at speeds that are prudent and consistent
with the conditions of the road and equipment. 16 FMSHRC at
2516-17. We agree with the Secretary that the abatement
requirements are irrelevant to the issue of whether the operating
speed of Payne's truck violated the standard. The citation
indicates that it is based on the truck's unsafe operating speed,
not on the lack of speed berms, escape ramps, and a payload
weight limit.[6] Gov't Ex. 5.
At issue is whether section 77.1607(c) gives an operator
fair notice that speeding trucks are prohibited, not whether
speed berms and escape ramps are required to be installed. From
our conclusion that section 77.1607(c) is clear, it follows that
the standard provides fair notice to operators that unsafe speed
is prohibited.
Moreover, substantial evidence supports the judge's
determination that Bluestone violated section 77.1607(c).[7] 16
FMSHRC at 2517. The record indicates that the loaded coal truck
sped past the turn to the preparation plant near the bottom of
the 1-mile-long, steep downgrade on the haulage road, at which
point the driver attempted to abandon his rig by jumping clear.
Tr. I 33, 37-38, 163-64, 170-71, Tr. II 185; Jt. Ex. 1; Gov't Ex.
2, at 3-5. Unfortunately, he died in the attempt to escape. Tr.
I 163-64. Moments before the accident, Payne was heard on the
C.B. radio exclaiming that his truck was out of control. Tr. I
189; Gov't Ex. 2, at 4. Although Inspector Murdock testified
that no one knows exactly where Payne lost control of his truck
or what caused it to happen (Tr. I 79), Investigator Sumpter and
MSHA Inspector John Cheetham testified that the truck's brakes
were badly worn and that they were out of adjustment. Tr. I 108-
09, 148. In view of this evidence, we conclude that the judge
correctly inferred that the truck was not operated at a speed
consistent with the steep downgrade and curve of the haulage road
and the condition of the truck's brakes. See Garden Creek
Pocahontas Co., 11 FMSHRC 2148, 2152-53 (November 1989) (a
violation can be proven by inference).
We also disagree with Bluestone's argument that the standard
applies only in instances where a driver demonstrates a lack of
prudence in operating mobile equipment. Section 77.1607(c)
requires that equipment operating speeds be both "prudent and
consistent" with the conditions of the road and equipment. Thus,
the absence of one of these requirements violates the standard.
In this case, the record supports the judge's finding that the
truck's speed was not "consistent" with the conditions of the
road and the truck's brakes. 16 FMSHRC at 2517. Therefore, we
conclude that the standard was violated regardless of whether
Payne exercised prudence in operating the truck.
2. Liability of Bluestone
We reject Bluestone's argument that it should not have been
cited for the violation because the standard applies only to
drivers of mobile equipment. B. PDR at 4-5; B. Reply Br. at 2-4.
We perceive Bluestone's argument as two-fold: (1) that Bluestone
is not liable because it had no ability to control the operating
speed of the haulage truck, and (2) that the Secretary abused his
discretion in citing Bluestone.
Operators are liable without regard to fault for violations
of the Mine Act and its standards. E.g., Fort Scott Fertilizer -
Cullor, Inc., 17 FMSHRC 1112, 1115 (July 1995); Western Fuels-
Utah, Inc., 10 FMSHRC 256, 260-61 (March 1988), aff'd on other
grounds, 870 F.2d 711, 716 (D.C. Cir. 1989); Asarco, Inc. -
Northwestern Mining Dept., 8 FMSHRC 1632, 1634-36 (November
1986), aff'd, 868 F.2d 1195, 1198 (10th Cir. 1989). As the mine
operator, Bluestone is strictly liable for all violations of the
Act that occur at its mine, including those committed by its
contractors' employees. See Bulk Transportation Services, Inc.,
13 FMSHRC 1354, 1359-60 (September 1991) ("the Act's scheme of
liability provides that an operator, although faultless itself,
may be held liable for the violative acts of its employees,
agents, and contractors"); see also Cyprus Indus. Minerals Co. v.
FMSHRC, 664 F.2d 1116, 1119 (9th Cir. 1981) (mine operators are
"strictly liable for the actions of independent contractor
violations").
Further, the Commission has recognized that the Secretary
has wide discretion to prosecute an operator for violations of
the Mine Act or its standards, whether committed by the
operator's own employees or the employees of its contractors.
Mingo Logan Coal Co., 19 FMSHRC 246, 249-50 (February 1997),
appeal docketed, No. 97-1392 (4th Cir. March 25, 1997); W-P Coal
Co., 16 FMSHRC 1407, 1411 (July 1994); Bulk Transportation
Services, 13 FMSHRC at 1359-60; see also Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d 533, 536-39 (D.C. Cir. 1986).
Although the Commission has determined that "its review of the
Secretary's action in citing an operator is appropriate to guard
against abuse of discretion" (W-P, 16 FMSHRC at 1411), the facts
of this case support the Secretary's decision to cite Bluestone.
Bluestone was responsible for maintaining the haulage road and
provided written traffic rules for the haulage road to its
contractors. Tr. II 158-60, 181-82, 189-90; B. Ex. 1; Gov't Ex.
2, at 5. In addition, the unsafe operating speed of the truck
created a hazard that endangered not only Payne, but everyone who
used the haulage road, including members of the public, employees
of other contractors,[8] and Bluestone's 13 employees. 16 FMSHRC
at 2519; Tr. II 150-51, 171. Where, as here, a contractor's
violation affects the safety of the operator's employees, the
Commission has upheld the Secretary's exercise of discretion to
cite the operator. Mingo Logan, 19 FMSHRC at 250. Therefore, we
conclude that the Secretary was justified in proceeding against
Bluestone for this violation.
3. Significant and Substantial
The S&S terminology is taken from section 104(d) of the Mine
Act, 30 U.S.C. � 814(d), and refers to more serious violations.
A violation is S&S if, based on the particular facts surrounding
the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature. Cement Div., Nat'l Gypsum Co., 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1
(January 1984), the Commission further explained:
In order to establish that a violation
of a mandatory safety standard is significant
and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the
underlying violation of a mandatory safety
standard; (2) a discrete safety hazard --
that is, a measure of danger to safety --
contributed to by the violation; (3) a
reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.
Id. at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria). Clearly, the truck's runaway speed caused
Payne to jump from the truck in an effort to save himself from
the impending accident. Thus, we conclude that it was a
significant contributing cause to his death and that substantial
evidence supports the judge's conclusion that the violation was
S&S. Accordingly, we affirm the judge's determination.
III.
Conclusion
For the foregoing reasons, we reverse the judge's
determination that Bluestone did not violate section 77.1600(b)
and remand for a determination of whether the violation was S&S
and penalty assessment, and we affirm the judge's determination
that Bluestone committed an S&S violation of section 77.1607(c).
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
**FOOTNOTES**
[1]: Section 77.1600(b) states:
Traffic rules, signals, and warning
signs shall be standardized at each mine and
posted.
[2]: Section 77.1607(c) states:
Equipment operating speeds shall be
prudent and consistent with conditions of
roadway, grades, clearance, visibility,
traffic, and the type of equipment used.
[3]: The hearing was conducted on July 26 and 27,
1994. "Tr. I" refers to the July 26 hearing;
"Tr. II" refers to the July 27 hearing.
[4]: Citation No. 2723400 states:
Management did not have traffic rules,
signals or warning signs standardize[d] on
the steep mountain incline, to provide the
coal haulage equipment a warning of the steep
incline on [B]urke
[M]ountain road to the preparation plant.
This was revealed after a fatal truck haulage
accident.
Gov't Ex. 4.
[5]: Citation No. 2723974 states:
Based on evidence obtained during a
fatal accident investigation, it was
determined that the 1979 DM 600 Mac coal
haulage truck was being operated at a speed
that was not consistent with the conditions
of the roadway, grades, visibility, and
traffic while descending the Burk[e] Mountain
coal haulage road with a full load of coal.
An accident occurred on 01/11/93 about 1:55
p.m. when the truck ran away and turned over
at the switchback.
Gov't Ex. 5.
[6]: The judge believed that Bluestone was attacking the
abatement requirements and he specifically rejected this
challenge in his decision. 16 FMSHRC at 2517-18. In its
petition for discretionary review, designated as its opening
brief, Bluestone contends that the judge erred in concluding that
it must raise objections to these requirements by refusing to
abate and then seeking review of any resulting section 104(b)
withdrawal order. B. PDR at 10-11. Moreover, the Secretary
interpreted Bluestone's petition as challenging the abatement
requirements. S. Resp. Br. at 5-6. However, in its reply brief,
Bluestone denies that it is challenging the requirements for
abatement, explaining that it refers to the abatement
requirements only to cast doubt on the Secretary's interpretation
of the standard. B. Reply Br. at 2-4. Accordingly, we do not
address the propriety of the abatement requirements or whether
Bluestone could have appropriately challenged the requirements at
the hearing.
[7]: The Commission is bound by the substantial evidence
test when reviewing an administrative law judge's factual
determinations. 30 U.S.C. � 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind
might accept as adequate to support [the judge's] conclusion."
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November
1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). We are guided by the settled principle that, in
reviewing the whole record, an appellate tribunal must also
consider anything in the record that "fairly detracts" from the
weight of the evidence that supports a challenged finding.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
[8]: At the time of the accident, there were 12 to 15 mines
on the property operated by independent contractors. Tr. II 154-
55.