<DOC>
[DOCID: f:york9451cd.wais]
BUFFALO CRUSHED STONE, INC.
February 18, 1997
YORK 94-51-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
February 18, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. YORK 94-51-M
:
BUFFALO CRUSHED STONE, INC. :
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]
DECISION
BY: Jordan, Chairman[2]
This 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 of three separate safety
standards: 30 C.F.R. � 56.14109(a), for failure to locate an
emergency stop cord along a conveyor belt so a person falling
against the conveyor could readily deactivate its drive motor; 30
C.F.R. � 56.11009, for failure to provide cleats on an inclined
walkway; and 30 C.F.R. � 56.11002, for failure to provide an
adequate stairway handrail. Administrative Law Judge Avram
Weisberger concluded that Buffalo Crushed Stone, Inc. ("Buffalo")
did not violate section 56.14109(a) and that, although it
violated sections 56.11009 and 56.11002, those violations were
not S&S. 16 FMSHRC 2154, 2158-61 (October 1994) (ALJ). The
Commission granted the Secretary of Labor's petition for
discretionary review challenging these determinations. For the
reasons that follow, we affirm in part, reverse in part, and
remand.
I.
Factual and Procedural Background
On December 15, 1993, Samuel Waters, an inspector from the
Department of Labor's Mine Safety and Health Administration
("MSHA"), inspected Buffalo's Wehrle limestone quarry in Erie
County, New York. 16 FMSHRC at 2154. Inspector Waters observed
an emergency stop cord, strung alongside a conveyor belt, that
was displaced for a length of approximately 20 feet due to a bent
"standard," i.e., a vertical piece of steel with a hole through
which the cord runs.[3] 16 FMSHRC at 2158; Tr. 40, 45-46. At
the center of the 20-foot section, a 2- to 5-foot length of the
stop cord had dropped 2 inches below the level of the conveyor
belt. 16 FMSHRC at 2158; Tr. 42, 89-90, 92. The inspector
determined that, at this location, a person falling on or against
the conveyor from the adjacent walkway would not be able to
readily deactivate the conveyor drive motor by pulling the stop
cord and that injury could result. 16 FMSHRC at 2158. He issued
Buffalo Citation No. 4289706, pursuant to section 104(a) of the
Mine Act, 30 U.S.C. � 814(a), alleging an S&S violation of
section 56.14109(a).[4] 16 FMSHRC at 2158-59; Tr. 46-48.
In addition, Inspector Waters observed a 16-foot-long
section near the bottom of an inclined, wooden walkway that was
neither nonskid nor provided with "cleats." Id. at 2159; Tr.
49-50. Cleats are 1-inch-square wooden boards nailed
perpendicular to the walkway's edges, usually 12 to 18 inches
apart. 16 FMSHRC at 2159. The walkway was located outdoors
adjacent to a conveyor belt and was approximately 70 to 90 feet
long. Id.; Tr. 51, 170. The surface of the walkway contained
"compacted material" that became slippery when wet. 16 FMSHRC at
2159-60. Waters determined that the uncleated portion of the
walkway presented a slipping hazard that could result in injury
and issued Buffalo Citation No. 4289707, pursuant to section
104(a) of the Mine Act, alleging an S&S violation of section
56.11009.[5] Id.
Inspector Waters also observed a steep stairway leading to
the tail of a conveyor belt. Id. at 2160. One side of the
stairway was against a wall and the other side was provided with
a handrail that varied from 18 to 21 inches in height. Id.; Tr.
55. The stairway extended 12 feet above a concrete surface. 16
FMSHRC at 2160. Waters determined that the handrail was too low
to prevent a person descending the stairway from falling over the
handrail and that injury could result. Id. He issued Buffalo
Citation No. 4289709, pursuant to section 104(a) of the Mine Act,
alleging an S&S violation of section 56.11002.[6] Id. at
2160-61; Tr. 59.
Following an evidentiary hearing, the judge concluded that
Buffalo had not violated section 56.14109(a) regarding the
emergency stop cord and dismissed the citation. 16 FMSHRC at
2159. He noted that the standard does not require the stop cord
to be located at a specific height and that there was no evidence
that a falling person could not readily deactivate the conveyor
at the cited location by pulling the stop cord. Id. As to the
inclined walkway, the judge concluded that Buffalo had violated
section 56.11009 but that the violation was not S&S because the
Secretary had failed to establish a reasonable likelihood of
injury. Id. at 2159-60. Relying on testimony that there was no
"debris" on the walkway and evidence that the greater portion of
the walkway was provided with cleats, the judge found that
slipping and falling in the uncleated area was not reasonably
likely to occur and assessed a civil penalty of $50. Id. at
2160. Concerning the stairway handrail, the judge concluded that
Buffalo violated section 56.11002 but that the violation was not
S&S because the Secretary had failed to establish a reasonable
likelihood of injury. Id. at 2160-61. He found that there were
no specific facts in the record demonstrating that falling off
the stairway was reasonably likely to occur and assessed a civil
penalty of $50. Id. at 2161.
II.
Disposition
A. Emergency Stop Cord[7]
The Secretary argues that the administrative law judge erred
when he concluded that no violation of section 56.14109(a)
occurred. He asserts the judge ignored testimony that at the
cited location the stop cord was not readily accessible to a
person who slipped or fell onto the belt. S. Br. 2-3, 8-10.
Buffalo responds that the judge correctly concluded that no
evidence was presented showing the conveyor could not be readily
deactivated. It points out that the standard does not specify
the height of the cord relative to the conveyor and that
Inspector Water's determination that a violation existed was
based solely on his interpretation of the law. B. Br. at 1, 3-4.
Buffalo correctly observes that section 56.14109(a) does not
specify a particular placement for the stop cord but requires
that it be located so "a person falling on or against the
conveyor can readily deactivate the conveyor drive motor." The
core interpretive issue, therefore, is the meaning of the term
"readily deactivate."
Inspector Waters explained that a stop cord is in its
"correct location" when it is "stretched tightly" and is "above
the belt" because "in slipping and falling . . . you want your
elbow or arm to hit the stop cord before you hit the belt." Tr.
44, 116. He testified that a miner should not have to
"consciously think to grab the cord and pull it to deactivate
it." Tr. 116. The inspector stated that the "rule of thumb" he
has been taught to apply is that the stop cord should be "nice
and tight" and located from "somewhere near the side edge of the
belt to as much as four inches above the side edge of the belt."
Tr. 44, 115. He issued the subject citation because one of the
upright steel standards which holds the cord in place was bent
and had caused a portion of the stop cord to become slack and
fall 2 inches below the conveyor belt. Tr. 40, 42.
It is well established that an agency's interpretation of
its own regulations should be given "deference . . . unless it is
plainly wrong" and so long as it is "logically consistent with
the language of the regulation and . . . serves a permissible
regulatory function." General Electric Co. v. EPA, 53 F.3d 1324,
1327 (D.C. Cir. 1995) (citations omitted); see also Energy West
Mining Co. v. FMSHRC, 40 F.3d 457, 462 (D.C. Cir. 1994). In
addition, the legislative history of the Mine Act provides that
"the Secretary's interpretations of the law and regulations shall
be given weight by both the Commission and the courts." S. Rep.
No. 181, 95th Cong., 1st Sess. 49 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 637 (1978). Here, because we conclude
that the Secretary's interpretation of the stop cord standard is
consistent with its language and not unreasonable, deference to
that interpretation is appropriate.
Section 56.14109(a) requires the emergency stop device to be
"located so that a person falling on or against the conveyor can
readily deactivate the conveyor drive motor." The Secretary has
interpreted this standard to require stop cords to be taut and
located above the conveyor belt so that a falling person's arm or
body can hit the stop cord "on the way down during the fall."
Tr. 117. The Secretary's interpretation is consistent with the
language of section 56.14109(a). The standard is directed at
protecting someone who is "falling on or against the conveyor"
and requires that such person be able to "readily deactivate the
conveyor drive motor." 30 C.F.R. � 56.14109(a) (emphasis added).
It is not limited to protecting persons who have already fallen
onto the conveyor belt. Moreover, according to the record,
conveyor belts are generally "anywhere from knee high to above
waist high." Tr. 43. The Secretary asserts that someone who is
"falling" toward a moving belt of this height would find it
virtually impossible to locate a stop cord that is hanging even
slightly below the conveyor and, therefore, would not be able to
"readily" deactivate the conveyor before landing on it. In our
view, the Secretary reasonably concludes that a person in the
process of falling will only be able to "readily deactivate" the
conveyor if he does not have to consciously look for the stop
cord. By requiring the stop cord to be located where it is
likely a person's arm or body will automatically deenergize the
conveyor belt, the Secretary seeks to reduce the chance that a
miner will fall onto that belt while it is still moving, or that
a miner will suffer injury by getting an arm caught as he tries
to catch himself. Tr. 44, 115, 117.
We note further that, by interpreting section 56.14109(a) in
a manner that reduces the likelihood of a miner who falls coming
into contact with a moving belt, the Secretary has taken an
approach that is also consistent with the alternative means of
compliance provided by 30 C.F.R. � 56.14109(b). Under that
section, in lieu of a stop cord, an operator can provide
protection from unguarded conveyors by installing railings "which
are positioned to prevent persons from falling on or against the
conveyor." Id. Railings are not directed at miners who have
already fallen onto the belt; they afford protection by
preventing persons from coming into contact with the moving
conveyor. Likewise, by requiring stop cords to be located so
they will deenergize the belt "on the way down during the fall,"
the Secretary seeks to prevent miners from coming into contact
with the moving conveyor, rather than simply providing miners
with a means of deactivating the belt once they have landed on
it. Tr. 117.
Unable to explain why the interpretation to which we defer
is unreasonable, our dissenting colleague chooses to characterize
it as nothing more than the inspector's "personal belief." Slip
op. at 12. Our colleague misapprehends the circumstances of this
case. While we agree that operators should not be penalized on
the basis of subjective or inconsistent applications of a
regulatory requirement, these considerations are not present
here. The interpretation of the stop cord standard is not the
solitary idea of a rogue inspector. On the contrary, the
Secretary, through his Solicitor, has urged this Commission to
affirm the citation on the very basis articulated by Inspector
Waters. S. Br. at 8-10. Moreover, the stop cord interpretation
the Secretary advances here is identical to his position in
Asarco, Inc., 14 FMSHRC 829, 831-32 (May 1992) (ALJ), a case
which the Commission did not review. Furthermore, the operator
makes no claim that it was unaware of MSHA's interpretation or
subjected to inconsistent applications of MSHA's stop cord
requirement. Indeed, the record shows it had previously been
cited for a similar stop cord violation. Tr. 91. Thus, we are
not confronted with the situation in which a "regulated party is
not 'on notice' of the agency's ultimate interpretation . . . and
may not be punished." General Electric Co. v. EPA, 53 F.3d at
1334.
Our colleague also contends that the interpretation
advocated here constitutes an amendment of the standard, which
may only be enforced after a formal rulemaking proceeding. The
Secretary's parameters for compliance, however, do not offer an
"interpretation that repudiates or is irreconcilable with an
existing legislative rule," see American Mining Congress v. MSHA,
995 F.2d 1106, 1113 (D.C. Cir. 1993), so as to require formal
rulemaking; they merely explain the agency's understanding of the
term "readily deactivate." As such, the agency is not required
to initiate APA rulemaking when it "seeks merely to clarify or
explain existing law." Drummond Co., 14 FMSHRC 661, 684-85 (May
1992).
In sum, we conclude that the Secretary's interpretation of
section 56.14109(a) is reasonable and entitled to deference
because it is consistent with the language of the standard, it
furthers the safety aims of the standard, and it is in harmony
with the alternative requirement pertaining to unguarded
conveyors.
Applying the Secretary's interpretation to the facts of this
case, we conclude that substantial evidence does not support the
judge's determination that Buffalo did not violate section
56.14109(a). Here, there is no dispute that a portion of the
stop cord was slack and had fallen below the conveyor belt. As
such, it was not a stop device which could "readily deactivate"
the conveyor drive motor. Accordingly, we reverse the judge's
determination that Buffalo did not violate section 56.14109(a)
and remand for determination of whether the violation was S&S and
assessment of a civil penalty.
B. Inclined Walkway[8]
The Secretary argues that substantial evidence does not
support the judge's conclusion that the violation of section
56.11009 was not S&S. He asserts the judge misstated testimony
and ignored evidence showing that slipping and falling on the
uncleated portion of the walkway was reasonably likely to occur.
S. Br. 1-2, 5-6. He also contends the judge erred in relying on
evidence that the greater portion of the walkway was provided
with cleats. Id. at 5-6. Buffalo
responds that substantial evidence supports the judge's finding.
It asserts that the judge properly credited evidence that the
walkway did not have any tripping hazards, it was not wet or
slippery at the time of the inspection, guardrails and stop cords
were in place, the standard does not specify the distance between
cleats, and no serious injury had resulted or would result from a
person falling on the walkway. B. Br. at 1, 2-3.
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). An evaluation of the reasonable likelihood of
injury should be made assuming continued normal mining
operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August
1985).
The first and second elements of the Mathies criteria have
been established: the judge found that Buffalo violated the
standard and that a person traveling along the uncleated portion
of the walkway would be exposed to the risk of slipping and
falling. 16 FMSHRC at 2159-60. The issue on review is whether
the judge erred in concluding that the Secretary failed to
establish the reasonable likelihood of an injury-producing event.
In concluding the Secretary failed to establish the third
Mathies element, the judge noted that "[a]ccording to [Buffalo
employee Thomas] Rashford, there was no debris on the walkway.
The greater portion of the walkway was properly provided with
cleats." Id. at 2160. We agree with the Secretary that the
judge misstated Rashford's testimony. Rashford testified that
there was debris on the walkway but that it did not present a
stumbling hazard. Tr. 164. Further, testimony that the material
on the outside walkway became slippery when wet (Tr. 50-52, 97,
170) was not refuted. Buffalo's argument that the walkway was
not slippery at the time of the inspection is not determinative
because an evaluation of the reasonable likelihood of injury is
to be made assuming continued normal mining operations. U.S.
Steel, 7 FMSHRC at 1130. In addition, the judge erred in
considering that the greater portion of the walkway was provided
with cleats. The fact that a portion of the walkway is cleated
is irrelevant to the likelihood of slipping in the uncleated
area.
Buffalo's remaining arguments are unavailing. While the
standard's failure to specify the distance between cleats would
be relevant to whether there was a violation, it is not relevant
to whether the violation was S&S. In addition, evidence that
guardrails on the walkway and stop cords on the adjacent conveyor
belt were in place is not dispositive of the reasonable
likelihood that slipping on the walkway surface would result in
an injury. Similarly, the fact that no injuries had been
reported as a result of the condition of the walkway is not
determinative of a conclusion that the third Mathies element has
not been established. Blue Bayou Sand and Gravel, Inc., 18
FMSHRC 853, 857 (June 1996).
In sum, we conclude that substantial evidence does not
support the judge's determination that Buffalo's violation of
section 56.11009 was not reasonably likely to result in an
injury. Accordingly, we reverse the judge's holding that the
violation was not S&S and remand the matter for reassessment of
the civil penalty.[9]
C. Stairway Handrail[10]
The Secretary argues that substantial evidence does not
support the judge's conclusion that the violation of section
56.11002 was not S&S. He asserts the judge ignored evidence that
falling down the stairway was reasonably likely to occur. S. Br.
1-2, 7-8. Buffalo responds that substantial evidence supports
the judge's finding. It asserts that, given the 54 degree angle
of the stairway, the handrail was in the proper location to
restrain a miner of average height if he slipped. B. Br. at 1,
3.[11]
The issue on review is whether the judge erred in concluding
that the Secretary failed to establish the reasonable likelihood
of an injury-producing event, the third Mathies element.[12]
Inspector Waters testified that the stair treads were a nonskid
surface and that there were no tripping hazards on the stairs.
Tr. 105. Further, Waters acknowledged that, as the steepness of
a stairway increases, "the handrail should be more consistent
with where [one's] hands or a comfortable position would be."
Tr. 106. He conceded that a person descending the stairway would
be able to hold the handrail from a standing position without
bending forward (Tr. 124), establishing that the handrail was
positioned consistently with the location of a miner's hand.
We therefore conclude that the judge correctly determined
that the Secretary failed to prove the reasonably likely
occurrence of an injury resulting from Buffalo's violation of
section 56.11002. Accordingly, we affirm the judge's holding
that the violation was not S&S.
III.
Conclusion
For the foregoing reasons, we reverse the judge's
determinations that there was no violation of section 56.14109(a)
and that the violation of section 56.11009 was not S&S, and we
remand for further consideration consistent with this opinion.
We affirm the judge's determination that the violation of section
56.11002 was not S&S.
Mary Lu Jordan, Chairman
Commissioner Marks, concurring in part and dissenting in
part:
For the reasons expressed in the majority opinion, I concur
in the conclusion to reverse the judge's negative finding of
violation regarding the emergency stop cord citation. I also
concur in the decision to remand this matter for the judge's
determination of whether the violation was S&S and for the
assessment of a civil penalty.
Regarding the inclined walkway violation, I concur in the
conclusion to reverse the judge's negative S&S determination and
I also concur in the determination to remand for reassessment of
the civil penalty. However, in disposing of the S&S issue, my
colleagues find that substantial evidence does not support the
judge's determination that the violation "was not reasonably
likely to result in an injury" as set forth in the Commission's
so-called Mathies test. Slip op. at 6-8 (citing Mathies Coal
Co., 6 FMSHRC 1, 3-4 (January 1984)). Although I do not disagree
with that finding, I continue to urge that the ambiguous language
of the Mathies test, and in particular the third element therein,
argues for Commission clarification of its interpretation of the
Act's S&S language. It seems extraordinary to me that neither
the Secretary nor affected operators have taken issue with the
Mathies language which has, for 13 years, continued to cause
increased litigation, time, and expense to all parties concerned
in the cases brought before the Commission. Thus, for the
reasons set forth in my concurring opinion in U.S. Steel Mining
Co., 18 FMSHRC 862, 868 (June 1996), I conclude that reliance
upon the third Mathies element is an inappropriate basis upon
which to support the S&S conclusion. In this case, the record
evidence referenced in the majority opinion clearly demonstrates
that the violation posed a risk of injury that was neither remote
nor speculative. Therefore, on that basis, I concur in the
reversal of the judge's negative S&S conclusion.
My colleagues affirm the judge's determination that the
stairway handrail violation of 30 C.F.R. � 56.11002 was not S&S.
Slip op. at 8-9. I disagree and therefore I dissent. Once again
my colleagues' persistence in applying the Mathies test, and in
particular the third element, results in a ruling that I believe
is inconsistent with the law.
Citation No. 4289709, charging a S&S violation of section
56.11002, states:
The stairway leading to the tail area on the No. One
conveyor was not provided with an adequate handrail.
On the side away from the wall, the handrail provided
(one rail only) was found to be eighteen inches (18
in.) to twenty[-]one inches (21 in.) above the stair
steps. The handrail was insufficiently high to
protect a worker descending the stairs if he were to
slip, trip, or otherwise fall. This was a potential
fall of person hazard. The staircase
consisted of twenty[-]one (21) steps, with an
approximate fall of person height of up to twelve
(12) feet to concrete below.
In concluding that the violation was proven by the
Secretary, the judge determined that, Waters [the MSHA inspector
who issued the citation and who testified] opined that the
handrail at issue was too low to restrain a person who might fall
using the stairway. espondent did not impeach or contradict this
opinion. It therefore is accepted.
16 FMSHRC 2154, 2161 (October 1994) (ALJ). That crucial finding
by the judge, and his conclusion that the "lack of a proper
handrail contributed to the hazard of a person falling off the
stairway" (id.), coupled with testimony that the subject handrail
"wasn't quite knee high," the steep 54 degree inclined stairway
was frequently used by miners who routinely carried equipment and
tools, and the risk involved a fall of a distance of 12 feet onto
a concrete floor, causes me to conclude that the Secretary
established that the violation was S&S. See Tr. 55, 57-59, 160,
168- 171. Thus, on this record, I conclude that the violation
posed a risk of injury that was neither remote nor speculative
and therefore it was S&S.
Accordingly, I dissent and would reverse the contrary ruling
of the judge.
Marc Lincoln Marks, Commissioner
Commissioner Riley, dissenting in part:
With regard to the emergency stop cord issue, my colleagues
imagine specificity where the regulation demands flexibility.
Imagination may be the soul of creativity, but it does little in
this case to fill the void where the law is silent.
The judge, after hearing the testimony of the witnesses,
examining the evidence, and considering the scope of the
regulation, found the stop cord falling within the minimal
parameters adopted by the Secretary for this regulation. I
concur with his judgment.
As set forth in the facts, 30 C.F.R. � 56.14109 provides:
Unguarded conveyors next to the travelways shall be
equipped with -- (a) Emergency stop devices which are
located so that a person falling on or against the conveyor can
readily deactivate the conveyor drive motor . . . .
Slip op. at 2 n.4 (emphasis added).
The inspector who issued the citation testified that he had
overheard other inspectors say the stop cord should be located
"somewhere near the side edge of the belt to as much as four
inches above the side edge of the belt." Tr. 44-45. This,
according to the record, appears to be the sum total of
everything MSHA "taught" their inspectors regarding stop cord
placement prior to the Secretary filing his opening brief. In
this inspector's judgment the stop cord was "maybe six inches
below where I would like to see [it]." Tr. 88. The inspector
recognized that the regulation does not specify a height
requirement. He also admitted that his issuance of the citation
for the stop cord was a "judgment call." Tr. 44-45, 90, 126.
The Commission has held that a safety standard cannot be "so
incomplete, vague, indefinite or uncertain that [persons] of
common intelligence must necessarily guess at its meaning and
differ as to its application." Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (December 1982) (citation omitted). Since the
inspector's citation was not based on the language of the
regulation, MSHA's Program Policy Manual, a program policy
letter, an interpretive bulletin, or Commission precedent, it
represents nothing more than his personal belief or agency lore
regarding the proper height of the stop cord. To his credit, the
judge declined to hold the operator to the inconsistent and
subjective standard enunciated by the inspector, adopted post hoc
by the Secretary (absent prior notice to the regulated community
and even, according to the record, his own MSHA staff), and now
affirmed by the majority.
The Secretary obviously wishes he had promulgated a more
specific regulation consistent with the inspector's detailed
testimony that the cord must be situated so as to automatically
deenergize the conveyor if someone falls against the belt. My
fellow Commissioners are determined to make up for the
Secretary's oversight by retroactively promulgating a specific
regulation. No doubt there are efficiency-in-government
advantages to dispensing with inconvenient and time-consuming
statutory mandates like prior notice and public comment.
However, the Commission should not short-circuit the legal
prerequisites of formal rulemaking.
I cannot find any definition of "readily" that is synonymous
with the word "automatically." Nor do I find any language to
support the majority's adoption of the inspector's "not . . .
consciously think" standard as the most reasonable interpretation
of where and how to position a stop device. Tr. 116. It is well
established that regulations should be read as a whole, giving
comprehensive, harmonious meaning to all provisions. See McCuin
v. Secretary of Health and Human Services, 817 F.2d 161, 168 (1st
Cir. 1987); 2 Am. Jur. 2d Administrative Law � 239 (1994). "Just
as a single word cannot be read in isolation, nor can a single
provision of a statute." Smith v. United States, 508 U.S. 223,
233 (1993). Section 56.14109(a) becomes the only section of the
Mine Act that I am aware of which does not require the miner to
be conscious of and attentive to his surroundings!
Furthermore, I am at a loss to understand why the majority
finds support for its decision in Asarco, Inc., 14 FMSHRC 829
(May 1992) (ALJ). While the Secretary did raise the identical
position almost 2 years earlier, the majority fails to note that
the judge soundly rejected the Secretary's interpretation that
the cord had to be placed where it is likely a person's arm or
body will automatically deenergize the conveyor belt. The judge
stated:
This standard does not require that an operator locate
its stop cords so that it guarantees that a person who
falls on or against a conveyor will first fall on or
through that stop cord. . . .
. . . The standard does not define, mandate nor
restrict the "location" of the stop cord, other than
to state that it must be "readily" accessible to the
person who is falling. It does not prohibit stop cords
below, at, or above any particular component of a
conveyor. With respect to a belt conveyor, the
standard does not dictate placement vis-a-vis the
floor, the upper or lower belts, the upper or lower
idlers, the pulleys, or the drive motor.
Id. at 834. The judge concluded his decision with some words of
advice for the Secretary:
If the Secretary truly desires to direct the specific
location of stop cords and further wishes to require
that a person falling on or against a conveyor first
fall "through" the stop cord, then the Secretary must
pursue this goal through notice-and-comment rulemaking.
The Secretary should promulgate a standard to clearly
and directly address not only the perceived hazard but
also clearly inform the mine operator what he must do
for compliance. In short, the Secretary's
interpretation (1) contradicts the "plain meaning" of
this performance standard; and (2) violates the
rulemaking requirements of the Mine Act.
Id. at 836.
The majority acknowledges that the Commission did not review
Asarco. Slip op. at 6. They omit that the Secretary did not
challenge that ruling nor did he, in the interim, attempt to
promulgate any different interpretation of the regulation than
that to which he acquiesced by default in Asarco. Does the
majority honestly believe that the mining community had a legal
obligation to make significant changes to its stop device
configurations based entirely on the Secretary's losing position
in Asarco? In the instant case the parties have changed, the
facts vary as well from Asarco, but the legal principle remains
constant -- the Secretary's interpretation of 30 C.F.R. �
56.14109(a) is still contrary to the "plain meaning" of the
regulation.
The majority decision arbitrarily affirms a capricious
standard, which finds no foundation in the language or history of
the regulation. If a conveyor belt that a person can "readily
deactivate" actually means a belt that "automatically
deenergizes" whenever a person approaches, the regulation should
be revised by the Secretary through formal rulemaking. This
process would afford MSHA an opportunity to include in the
regulation an appropriate standard supported by safety
engineering studies, rather than the arbitrary standard here
imposed by administrative fiat without the benefit of
consultation with the mining community.
James C. Riley, Commissioner
Distribution
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Sal Castro, Safety Director
Buffalo Crushed Stone, Inc.
2544 Clinton Street
P.O. Box 710
Buffalo, NY 14224
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
**FOOTNOTES**
[1] Commissioner Holen participated in the consideration of
this matter, but her term expired before issuance of this
decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. _ 823(c), this panel of three
Commissioners has been designated to exercise the powers of the
Commission.
[2] Chairman Jordan is the only Commissioner in the majority on
all issues.
[3] The total length of the conveyor belt was 75 to 100 feet.
Tr. 41.
[4] Section 56.14109 states, in relevant part:
Unguarded conveyors next to the travelways shall be
equipped with --
(a) Emergency stop devices which are located so that a
person falling on or against the conveyor can readily
deactivate the conveyor drive motor . . . .
30 C.F.R. _ 56.14109.
[5] Section 56.11009 states:
Walkways with outboard railings shall be provided
wherever persons are required to walk alongside
elevated conveyor belts. Inclined railed walkways shall
be nonskid or provided with cleats.
30 C.F.R. _ 56.11009.
[6] Section 56.11002 states, in part:
Crossovers, elevated walkways, elevated ramps, and
stairways shall be of substantial construction
provided with handrails, and maintained in good
condition.
30 C.F.R. _ 56.11002.
[7] Chairman Jordan and Commissioner Marks vote to reverse the
judge's determination that there was no violation of section
56.14109(a). Commissioner Riley would affirm the judge's
determination.
[8] All Commissioners vote to reverse the judge's determination
that the violation of section 56.11009 was not S&S.
[9] Although the judge did not expressly consider the fourth
Mathies element, the evidence establishes that an injury
resulting from slipping on the walkway would be of a reasonably
serious nature. Inspector Waters testified that slipping on the
walkway could result in a head injury or a finger or wrist
fracture. 16 FMSHRC at 2160.
[10] Chairman Jordan and Commissioner Riley vote to affirm the
judge's determination that the violation of section 56.11002 was
not S&S. Commissioner Marks would reverse the judge's
determination.
[11] Buffalo did not, however, challenge the judge's ruling
that it violated the standard. Consequently, that issue is not
before us.
[12] Contrary to the Secretary's assertions, the judge
expressly recognized that the stairway was steep and that one
side of the stairway was against a wall. 16 FMSHRC at 2160.