<DOC>
[DOCID: f:se99101x.wais]

 
NOLICHUCKEY SAND COMPANY, INC.
SE 99-101-RM
February 9, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        February 9, 2001

NOLICHUCKEY SAND COMPANY,     : CONTEST PROCEEDINGS
      ,                       :
               Contestant     : Docket No.  SE 99-101-RM
          v.                  : Citation No. 7777862; 1/28/99
                              :
SECRETARY OF LABOR,           : Docket No.  SE 99-102-RM
     MINE SAFETY AND HEALTH   : Citation No. 7777863; 1/28/99
     ADMINISTRATION (MSHA),   :
               Respondent     : Docket No.  SE 99-103-RM
                              : Citation No. 7777864; 1/28/99
                              :
                              : Docket No.  SE 99-104-RM
                              : Citation No. 7777865; 1/28/99
                              :
                              : Docket No.  SE 99-105-RM
                              : Citation No. 7777866; 1/28/99
                              :
                              : Docket NO.  SE 99-106-RM
                              : Citation No. 7777867; 1/28/99
                              :
                              : Pit No. 436
                              : Mine ID 40-00806


                            DECISION

Before: Judge Avram Weisberger

Appearances: Adele L. Abrams, P.C., Calverton, Maryland, for the
             Contestant; 
             Thomas A. Grooms, Esq., Office of the Solicitor, U. S.
             Department of Labor, Nashville, Tennessee, for the 
             Respondent.

     Introduction

     These cases are  before  me  based  upon  a  decision of the
Commission in this matter, 22 FMSHRC 1057 (September  2000) which
vacated  my  initial  decision,  21  FMSHRC 681 (June 1999),  and
remanded for "further consideration".

     At issue in this proceeding is the validity of six identical
citations,  each  alleging  a  violation  of  30  C.F.R.  Section
56.14109,   which,   as  pertinent,  provides  that   "unguarded"
conveyors be equipped  with  either  emergency  stop  devices  or
railings.   In essence, it is the position of Nolichucky that the
threshold requirement  of Section 56.14109 was not met, since the
conveyors were not unguarded,  as  they  were  all  equipped with
structural trusses measuring at least forty-two inches in height.

     In   its  decision  the  Commission,  noted  that  the  term
"unguarded"  was not defined in 30 C.F.R. Part 56, subpart M, and
that there was "... nothing in the Legislative History of Section
56. 14109 provides  guidance  in  determining  whether  the cited
conveyors  should be considered unguarded."  (22 FMSHRC supra  at
1062.)   In  addition,   the   Commission  noted  that  "...  the
Secretary's witnesses failed to present a coherent interpretation
of when a belt is considered `unguarded'  "(22  FMSHRC  supra  at
1062.)  In this connection, the Commission noted the testimony of
MSHA  Inspector Hobbs that "if a conveyor is high enough to where
it doesn't  create a hazard, then a railing or stop-cord does not
have  to  be provided",  and  the  Secretary's  stipulation  that
previous inspectors  had  treated  all  of  Nolichucky's belts as
complying with the standard because the belts  were equipped with
forty-two  inch  trusses.   (22  FMSHRC  supra  at  1062).    The
Commission  also  noted  a  statement  in the Secretary's Program
Policy  Manual that "... the conveyor installation  or  framework
cannot be  considered  an  allowable  guard  even  though  it may
conform  to the standard railing height of forty-two inches.   IV
MSHA, U.S. Department of Labor, Program Policy Manual, Part 56/57
at 55a - 55b (1991)".  (22 FMSHRC supra at 1062).  The Commission
took cognizance of its prior holding that, ... "when interpreting
an  ambiguous   regulation,  differences  normally  owed  to  the
Secretary's litigation  position  before  the  Commission.   Akzo
Noble  Salt,  Inc.  v.  FMSHRC,  212  F 3rd 1301, 1304(D.C.) Cir.
2000)."  (22 FMSHRC supra at 1062).

     In  its  Remand,  the Commission specifically  directed  the
undersigned "... to secure  from  the  Secretary an authoritative
interpretation of what constitutes an unguarded  conveyor  within
the  meaning  of  56.14109  ... .  Upon obtaining the Secretary's
interpretation,  we  direct  the   Judge   to  apply  traditional
principles  of  regulatory  interpretation  to determine  if  the
Secretary's   interpretation  is  reasonable  and   entitled   to
deference."    Further,  the  Commission,  directed  as  follows:
"[a]fter obtaining  the Secretary's interpretation, the Judge, on
remand, must decide whether  the  operator  was  on notice of the
regulation's  requirement.  In addressing the notice  issue,  the
Judge must also  reconcile  the  Secretary's claim that Inspector
Hobbs provided actual notice to the operator, with her claim that
it is unreasonable for operators to  rely  on the oral assertions
of  MSHA  inspectors when applicable regulations  and  government
manuals provide  notice  of  the  operators'  obligations."   (22
FMSHRC  supra  at 1063).  Finally, the Commission ordered that if
it is found that  the  threshold requirements of Section 56.14109
supra exist, then the undersigned  "must  examine  both  the stop
cord and railing compliance options set forth in subsections  (a)
and (b) of the standard."  (22 FMSHRC supra at 1063).

     The   Secretary's  "authoritative  interpretation"  of  what
constitutes  an  unguarded conveyor within the meaning of Section
56.14109.

     Pursuant to a directive of the undersigned to the Secretary,
as set forth in a  conference call with counsel for the Secretary
and  counsel for Nolichucky,  the  Secretary's  counsel  filed  a
Program  Information  Bulletin  No.  P00-15  ("bulletin") ("issue
date" October 23, 2000).  In a statement filed with the bulletin,
the  Secretary's counsel indicated that this bulletin  "has  been
issued  by  the  Secretary in response to the Commission's Remand
Order of September 15, 2000."  The bulletin, which states that it
is from Earnest C. Teaster, Jr., Administrator for Metal and Non-
Metal Safety and Health,  sets  forth  that  it "... restates the
Secretary of Labor's `authoritative interpretation'  of 30 C.F.R.
Section   56.14109(a)   and   (b)(1)  .  ...  [and  that]  "[t]he
Secretary's authoritative interpretation  is  the  interpretation
stated  in  the  Mine  Safety  and  Health Administration  (MSHA)
Program Policy Manuel (volume IV, parts 56 and 57, subpart M, 55a
- 55b (June 18, 1991))."  Specifically,  the bulletin states that
it  is  restating  language  from  the PPM which  "provides  that
neither the conveyor installation or  framework can be considered
an allowable guard, irrespective of its height or its conformance
with standard railing heights."  The record  indicates  that  the
bulletin the Secretary has filed, sets forth that the Secretary's
authoritative  interpretation  of  Section 56.14109 supra, is the
interpretation set forth in its Program  Policy  Manual.   Hence,
the  PPM  is  the  Secretary's  authoritative  interpretation  of
Section 56.14109 supra.

     The Secretary's interpretation is reasonable and entitled to
deference.

     In general, deference is warranted only when the language of
the regulation is ambiguous Auer v. Robbins, 519 U.S. 452 (1997).
In  its  decision,  the  Commission, in its discussion of the law
regarding deference, and prior  to setting forth the scope of its
remand relating to obtaining from the Secretary an "authoritative
interpretation", referred to Akzo  Noble  Salt, supra, which held
that   deference  is  normally  owed to the Secretary's  position
before   the   Commission,   "when  interpreting   an   ambiguous
regulation."  (Emphasis added).   (22  FMSHRC  supra  at 1062) In
this  connection,  the Commission noted that the term "unguarded"
was  not defined in the  regulation,  and  that  the  Legislative
History   of   Section  56.14109  not  provide  any  guidance  in
determining whether  the  conveyors  be  considered unguarded.  I
thus conclude that the Commission's decision  sets  forth, as the
rule in this case, that the cited standard regarding the scope of
the term "unguarded" was ambiguous.  Hence, in the case  at  bar,
deference is warranted.

     The  Secretary's  interpretation  that the conveyor belt was
not guarded by the forty-two inch structural truss, is in harmony
with the common meaning of the term "guarded", and the meaning of
that  term  in  the  mining industry.  Thus,  the  Dictionary  of
Mining,  Mineral  and Related  Terms  ("DMMRT")  (1968  edition),
defines  "guarded"  as,  pertinent,  as  follows:  "...  covered,
shielded, fenced, enclosed,  or  otherwise  protected by suitable
covers or casings, barrier rails, screens, or  mats  or platforms
to remove the likelihood of either dangerous contact or  approach
by  persons  or  objects  to  a  point  of  danger."  In the same
fashion, Webster's Third New International Dictionary  (1993 Ed.)
("Webster's"),  defines  "unguarded",  as  pertinent,  as  "1  a:
unprotected by a guard ... .".  "Guard", as pertinent, is defined
in  Webster's as "6:  a fixture or attachment designed to protect
or secure  against  injury  ...  .".  Thus, under both the common
meaning of the term "unguarded", and  its  meaning  in the mining
industry,  the structural truss, which does not cover  or  shield
the conveyor,  and  which is not been shown to have been designed
to  protect  against  injury,  would  still  leave  the  conveyor
unguarded.  Hence, the Secretary's interpretation is reasonable.

     Nolichucky's   argument    that    since   the   Secretary's
interpretation, as set forth in the PPM was  not arrived at after
a formal adjudication, or notice and comment rule  making,  it is
entitled  only  to  respect  and is not entitled to deference, is
without merit.  Nolichucky's reliance  on  Christensen  v. Harris
County,  529  U.S.  576,  (2000),  is misplaced.  In Christensen,
supra,  the issue was whether deference  should  be  accorded  an
interpretation by an agency of a statute where the interpretation
is set forth  in  a policy document.  In contrast, in the case at
bar, as in Auer v.  Robbins,  519  U.S.  452  (1997),  the  issue
presented  was  whether an agency's policy statement interpreting
its own regulation should be given deference.  In Auer, supra, it
was held that an agency's interpretation of its own regulation is
entitled to deference.  519 U.S. supra, at 461.  Thus, under Auer
supra, the Secretary's authoritative interpretation, set forth in
the PPM, is entitled to deference.

     The  operator   was   not  on  notice  of  the  regulation's
requirements.

     It  is  the  law  of  this  case,   as  established  by  the
Commission,  that  the cited standard is ambiguous  i.e.,  as  to
whether, under the regulatory  standard,  the  conveyor at issue,
whose  structural trusses were forty-two inches in  height,  were
still unguarded, and hence within the perview of the requirements
of  Section   56.14109   supra.   The  Secretary's  authoritative
interpretation of this standard, as set forth in the PPM, appears
to have been issued on June  18, 1991.  There is no evidence that
Nolichucky had either knowledge  or  notice  of  the terms of the
PPM.  I note the Secretary's assertion that MSHA Inspector  Hobbs
provided  Nolichucky  with actual notice on January 1999 that the
conveyors were not in compliance  with  Section  56.14109  supra,
since  they  had neither railings nor stop cords.  However, I  do
not find much merit in this argument, considering the Secretary's
stipulation that

          . .  .  statements were made to Mr. Bewley or
          citations  were  not issued for violations of
          that standard in the past based upon this 42-
          inch built structure  interpretation  meaning
          that that would be sufficient to constitute a
          guard  for the purpose of that standard.   In
          other words, the standard refers to unguarded
          conveyors,  and apparently inspectors, in the
          past,  Mr.  Nichols'   predecessor   in   the
          position    of    field   office   supervisor
          apparently  okayed  or   acquiesced  in  that
          interpretation.  (Sic.)  (Tr. 26-27).

     Thus, although Nolichuckey had  been  informed  by Inspector
Hobbs  on  January  19  that the conveyors were not in compliance
with Section 56. 14109 supra,  and citations for these conditions
were  issued  nine  days  later,  there   is   no  evidence  that
Nolichuckey,  prior  to  the  date  cited,  had  notice   of  the
authoritative interpretation of the Secretary as set forth in the
PPM.   Further,  it  is  significant to note that Nolichuckey had
been informed in the past by MSHA inspector that the conveyors at
issue were in conformity with  Section  56,  14109(a) because the
forty-two inch structural truss constituted a  sufficient  guard,
and  that  the  MSHA  Field  Office Supervisor acquiesced in this
interpretation.   Thus,  it  can   not   be   found  under  these
circumstances  that  Nolichuckey  had  notice of the  Secretary's
authoritative interpretation set forth in  the PPM.  Indeed, even
the Commission noted, 22 FMSHRC supra at 1063,  that  "...  we do
not know what the Secretary's interpretation of the regulation is
or what it requires, ... ." .  If the Commission, after reviewing
the  record  in  this  case  had  no knowledge of the Secretary's
interpretation  of  the  regulation or  what  it  requires,  then
certainly, a fortiori, it  would  be a deprivation of due process
to hold that Nolichuckey, prior to  litigation  of  this  matter,
and,   on   the   date  cited,  had  notice  of  the  Secretary's
authoritative interpretation  of  the cited standard, and what it
required.

     Conclusion

     Since it is the law of the  case that the cited standard was
ambiguous,  the  Secretary's  interpretation   is   entitled   to
deference.  However, since Nolichuckey did not have notice of the
Secretary's  authoritative  interpretation,  it  can  not be held
responsible  for  having violated the cited standard (See  Phelps
Dodge Corp. v. FMSHRC, 681 F 2nd 1189 (9th Cir. 1982).

                              ORDER

     It is Ordered that the notices of contest are sustained, and
that the citations at issue served to Nolichuckey on January 28,
1999 be Dismissed.


                              Avram Weisberger
                              Administrative Law Judge


Distribution: (Certified Mail)

Adele L. Abrams, P.C., 4061 Powder Mill Road, Suite 700,
Calverton, MD 20705

Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862

sct