Rag Cumberland Resources LP & MSHA v. United Mine Workers of America, 2001-MSA-2 (ALJ Mar. 29, 2001)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Date Issued: March 29, 2001

CASE NO. 2001-MSA-2

OALJ NO. M-2000-055-C

In the Matter of

RAG CUMBERLAND RESOURCES LP,
    Petitioner

    and.

MINE SAFETY & HEALTH ADMINISTRATION,
    Party-in-Interest

    v.

UNITED MINE WORKERS OF AMERICA,
    Party Opposing Petition

   The hearing in the above-styled matter is to be held in Pittsburgh, Pennsylvania, on June 5, 2001. On March 13, 2001, the Petitioner, RAG Cumberland Resources LP ("Cumberland"), submitted a Motion to Dismiss and a Motion to Clarify Type of Appeal or in the Alternative, To Expedite. On March 28, 2001, the Party-In-Interest, the Administrator for Coal Mine Safety and Health ("Administrator"), responded. No timely response was received from the United Mine Workers of America ("UMWA"). The matter of an expedited appeal is moot as the parties have all agreed to a June 5, 2001 hearing date.

   Cumberland operates the Cumberland Mine located near Waynesburg, Pennsylvania. On August 18, 1992, Cumberland filed a petition for modification of the application of 30 C.F.R. § 75.1002 to the Cumberland Mine, to permit use of a high voltage longwall mining system and proposed an alternative method which would at all times guarantee no less than the same measure of protection afforded by the standard. The Administrator conducted an investigation and published its investigative report on June 2, 2000. In September 2000, the UMWA objected to the results of the investigative report. A PDO was issued on February 9, 1993 granting the petition. That PDO contained two restrictions: item 29 on panel width and size and a condition concerning egress and placement of equipment. On April 25, 2000, Cumberland filed a petition seeking to amend the original PDO seeking to remove the restrictions on panel width and size and to replace the condition concerning egress and placement of equipment. On February 2, 2001, the Administrator granted Cumberland's petition. On February 20, 2001, the UMWA sent a letter with an attachment to the Administrator concerning the PDO. The attached letter, dated February 12, 2001, addresses only the two conditions (of thirty-five) sought to be changed discussed in the Administrator's "investigative report".

   Cumberland argues that the letter the UMWA sent to the Administrator, dated February 20, 2001, did not constitute a request for hearing contemplated by 30 C.F.R. § 44.14(a) in that it fails to comply with the bare minimum requirements for a hearing request. Cumberland points to other UMWA hearing requests in which it had explicitly requested a hearing; here, although it objected to the Administrator's Proposed Decision and Order ("PDO") it did not explicitly request a hearing. The timeliness of the letter is not challenged.

   The Administrator responds arguing that a proper request, under 30 C.F.R. § 44.14(a), need not contain the words "request for a hearing." To adopt Cumberland's (myopic) interpretation would thwart the purpose of the Mine Act and implementing regulations and deprive the UMWA of the opportunity to challenged the PDO in question. Further, the UMWA's letter with its attached comments met the hearing request criteria.

   Cumberland correctly points out that the determination whether an appeal is a "partial" versus "global" appeal affects the implementation of the new PDO. A "global" appeal precludes implementation of the new PDO, while a "partial" appeal permits operation under the provisions of the new PDO until the decision of the judge or Assistant Secretary. Cumberland argues the UMWA's appeal is a "partial" appeal because it contests only two conditions of the overall modification. The UMWA did not categorize its filing as a "partial" or "global" appeal.

   The Administrator, arguing its interpretation is entitled to deference where the regulation's meaning is not plain,states the intended purpose of § 44.14, is "to allow a mine operator who has been granted a new petition for modification by the agency, to file a request for partial appeal, in order to get some relief from compliance with a mandatory safety standard, while it is contesting on or more of the specific conditions imposed by the Administrator."

   30 C.F.R. § 44.1(b) provides:

The rules shall be liberally construed to carry out the purpose of the Act by assuring adequate protection of the miners and to secure a just and prompt determination of all proceedings consistent with adequate consideration of the issues involved.

   30 C.F.R. § 44.14, Request for Hearing, states:

    A request for hearing filed in accordance with § 44.13 of this part must be filed within 30 days after service of the proposed decision and shall include:

    (a) A concise summary of position on the issues of fact or law desired to be raised by the party requesting the hearing, including specific objections to the proposed decision. A party other than the petitioner who has requested a hearing shall also comment upon all issues of fact or law presented in the petition, and

    (b) An indication of a desired hearing site.

    (c) Partial Appeal. (1) If the Administrator has issued a proposed decision and order granting the requested modification, a request for hearing on the proposed decision and order may be made by any party based upon objection to one or more of the terms and conditions of the Administrator's proposed decision and order. If such a request for hearing is made, the request should specify which of the terms and conditions should be the subject of the hearing.

    (2) During the pendency of the partial appeal, the proposed decision and order of the Administrator will become final on the 30th day after service thereof, unless a request for hearing on the proposed decision and order is filed in accordance with paragraph (a) of this section by any other party. The decision and

order will remain in effect as proposed by the Administrator until the terms and conditions for which the hearing was requested are modified, affirmed or set aside by a final order of the presiding administrative law judge or the Assistant Secretary. The presiding administrative law judge shall take such action upon a determination of whether

(i) The terms and conditions for which the hearing was requested are necessary to ensure that the alternative method of achieving the result of the standard will at all times guarantee to the miners at the mine at least the same measure of protection afforded to the miners at the mine by such standard: or

(ii) In the case of a petition involving a finding by the Administrator of a diminution of safety to the miners caused by application of the standard at the mine, whether the terms and conditions for which the hearing was requested are necessary to provide equivalent protection to the miners at the mine from the hazard against which the standard is directed.

   The standard for hearings was promulgated in 1990 and there is apparently no case law dealing with it. See, 55 Fed. Reg. 53441 (December 28, 1990). The first proposed revision to the rules did not include provisions for partial appeals. See, 54 Fed. Reg. 19492 (May 5, 1989). Moreover, the preamble to the final rules which included the provision for a partial appeal provides little information beyond which is contained in the rule itself. See, 55 Fed. Reg. 53430, 53433 (December 28, 1990).

   "An administrative agency's interpretation of its own regulations is controlling unless it is plainly erroneous or inconsistent with the regulation.'" 1A Sutherland, Statutory Construction, § 31.06, at 545 (5th Ed. 1991) and cases cited therein. The words of a regulation are to be given their plain meaning. Solano Garbage Co. v. Cheney, 779 F.Supp. 477 (E.D. CA 1991). "An administrative interpretation developed during, or shortly before the litigation in question is entitled to less weight than that of a long-standing administrative interpretation of administrative rules." 1A Sutherland, Statutory Construction, § 31.06, at 545 (5th Ed. 1991) and cases cited therein.

   30 C.F.R. § 44.14, Request for Hearing, does not explicitly require a hearing request to use the terms "request for hearing." It does mandate that whatever filing is made it "shall" include (a) "[A] concise summary of position . . . including specific objections" (comment upon all issues of fact or law presented in the petition) and (b) "An indication of a desired hearing site." The UMWA letter of February 20, 2001, does not explicitly meet either criteria. The UMWA letter of February 12, 2001, likewise does not explicitly meet either criteria. However, the referenced attached letter

from James Lamont, dated February 12, 2001, does contain specific objections to terms contained in the 2001 PDO in question as Cumberland appears to recognize although the letter refers to an "investigative report". Since the 2001 PDO was issued on February 2, 2001, the reference to an investigative report rather than the PDO was erroneous as Mr. Lamont had previously addressed the investigative report on September 26, 2000. Although this indifference to correctness is not condoned and undoubtedly could be avoided by involving legal counsel, it is not fatal to the UMWA's filing.

   The UMWA is clearly a "party" to the modification proceeding. See, 30 C.F.R. § 44.3. The Amended PDO itself notes the UMWA's objections. The Administrator had served the UMWA with a copy of the PDO (No. M-2000-055-C), on February 1, 2001. If the UMWA's correspondence was not considered a hearing request, it would serve no useful purpose.

   Under 29 C.F.R. § 18.2(d) any document which begins an "adjudicative proceeding" is a "complaint". The request for a hearing also appears to be an ancillary pleading such as referred to in FRCP 5 although it is also a document "commencing the proceeding", as defined in 29 C.F.R. §18.2(o). The lack of a complaint is generally not held to be jurisdictional where no statute of limitations issues are involved. Moore's Federal Practice, Section 3.04, (2nd Ed. 1989) citing Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed. 591 (1975)(where the plaintiff's papers were sufficient to appraise the defendants of the nature of the claim and invoke the court's subject matter jurisdiction). "Alleged procedural irregularities in the pleadings will not invalidate the proceedings unless the irregularities were so serious as to prejudice a party." Stein, Mitchell, & Mezines, Administrative Law, Vol. 4, Section 33.03[3] (1990) citing Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977). Moreover, nothing in the regulations states that a failure to explicitly utilize the words "request for a hearing" shall constitute a jurisdictional defect or that such dereliction affects the validity of the filing.

   No prejudice has been alleged or suffered by Cumberland. I conclude that any potential prejudice resulting from the UMWA's dereliction is cured by the requirement, followed in this case, that the administrative law judge notify the parties, at least 30 days in advance, of the day, time and place for hearing. 30 C.F.R. § 44.28. The petitioner has alleged no prejudice and has not sought any continuance. They have been aware of this matter for some time. Further, when as here, the Administrator initially notifies parties of the request for hearing and later provides petitioners with copies of the "hearing request" and the results of the Administrator's investigation the latter petitioners are fully appraised of issues controverted in fact or law. Due process, the APA, and the Act require no more.

   Finally, to rule otherwise, would be to ignore the purpose of the Act and regulations which require, among other things, "adequate consideration of the issues involved." The purpose of achieving mine safety would not be furthered in this matter by adhering to antiquated notions requiring strict adherence to pleading rules.

   I initially observe the Administrator stated, in the 2001 PDO, "The Agency believes that non-electrical safety and health issues related to the use of high-voltage longwalls are adequately accommodated by existing safety and health standards under 30 C.F.R. Parts 70 and 75."

   The fact the UMWA did not state it was seeking a "partial" appeal, as argued by Cumberland, is not determinative. One must examine the written hearing request itself, rather than the elusive intent of the party, to ascertain whether the appeal is a "global" versus "partial" appeal. The UMWA asked for a hearing on the issue of whether the alternative method proposed by Cumberland and as amended by the recommendations of the MSHA will achieve the same measure of protection afforded by 30 C.F.R. § 75.1002. It then listed its specific challenges.

   While the regulatory language here is not a model of clarity, its appears to have a logical purpose given the effects on a PDO. That is, if a "global" appeal, the new PDO does not take effect. 30 C.F.R. § 44.13(b). In this case, then the 1993 PDO standard, a "mandatory safety standard", would remain in effect. 30 C.F.R. § 44.4(c). If a "partial" appeal, the new PDO takes effect until acted upon by an administrative law judge or the Assistant Secretary. Presumably, this scheme anticipates the Administrator knows her job, has thoroughly evaluated the safety impact of the modification on miners, and has determined the requested modification is appropriate. Thus, the proposed modifications have been through the MSHA's "safety filter."

   Where less than all, i.e., one or more terms and conditions, of the changes or a only a "part" of the changes are challenged presumably the red safety flag is not raised as high as when the entire modification or "all" of the modification is challenged. Fine-tuning may be required in partial appeal cases versus potentially discarding an entire proposal in global appeals. Moreover, when only two of thirty-five provisions, as here, are challenged it makes little practical sense to burden the parties, particularly the respondent or petitioner here, with the requirement of litigating seventeen times as many issues and potentially and unnecessarily protracting the proceedings. A challenging party's intent cannot have the effect of determining which safety standard remains in effect upon a appeal. This is the function of the regulation.

   The Administrator would have me adopt its position that § 44.14(c) was solely intended to allow a mine operator granted a modification to appeal to obtain relief from mandatory safety standards while it challenges conditions imposed by the Administrator. The Administrator cites no authority or basis for this position which is contrary to the wording of the section itself. Section 44.14(c) states a request for hearing "may be made by any party". (Emphasis added). Deference is not due to an agency interpretation which strains the plain and natural meaning of words or implies language that does not exist in the regulation. O'Brockton v. Eastern Associated Coal Co., 1994 WL 186057 (DOL 1994) citing Director, OWCP, v. Barnes and Tucker Co. [Molnar], 969 F.2d 1524, 1527 (3d Cir. 1992). Moreover, courts have questioned such interpretations first made in litigation and not previously asserted. See, e.g., Good Samaritan Hospital v. Shalala, 113 S.Ct. 2151, 2161 (1993). The Administrator has not alluded to anything which suggests this interpretation had ever been articulated or was a long standing one. I thus do not give deference to the Administrator's interpretation which is contrary to the plain language of the regulation..

   If, in this matter, I were to interpret the UMWA's written hearing request differently, that is, that it was a "global" appeal, the regulatory provision concerning "partial" appeals would be rendered largely meaningless. I find given its hearing request, the UMWA's request amounts to a "partial" appeal.

   Given that the UMWA's request amounts to a "partial" appeal, I find the 2001 PDO, although not "final" under 30 C.F.R. § 44.14(c)(2), is the one currently in effect. It will remain so until the terms and conditions which are the subject of the contest are modified, affirmed or set aside in a final order by the undersigned or the Assistant Secretary.

   The UMWA's February 20, 2001 filing with attachment, although evidencing an indifference toward correctness, constitutes a request for hearing. The hearing request is a "partial" appeal.

   WHEREFORE, IT IS ORDERED THAT:

   1. Cumberland's Motion to Dismiss is DENIED;

   2. Cumberland's Motion for Clarification is GRANTED; and,

   3. Cumberland's Motion to Expedite is moot.

       RICHARD A. MORGAN
       Administrative Law Judge

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