Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220
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CASE NO. 2001-MSA-1
OALJ NO. M-1999-101-C
In the Matter of
RAG EMERALD RESOURCES LP,
Petitioner
and.
MINE SAFETY & HEALTH ADMINISTRATION,
Party-in-Interest
v.
UNITED MINE WORKERS OF AMERICA,
Party Opposing Petition
RULING AND ORDER
DENYING MOTION FOR RECONSIDERATION
AND
GRANTING MOTION IN LIMINE IN PART
Procedural Background
A hearing in the above-styled case is scheduled on April 17, 2001, in Pittsburgh, Pennsylvania. On March 22, 2001, I issued a Ruling and Order finding the United Mine Workers' of America ("UMWA") appeal of the 1995 Proposed Decision and Order ("PDO") of the Mine Safety and Health Administration's ("MSHA") approval of RAG Emerald Resources, LP ("Emerald"), request for modification of a mandatory coal mining safety standard constituted a "partial" appeal, under 30 C.F.R. § 44.14(c), versus an overall or "global" appeal.
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On March 28, 2001, the UMWA sought reconsideration of the Ruling. Emerald responded to the Motion, on March 31, 2001. Emerald submitted an additional Motion in Limine, at that time. In a Preliminary Order on Stipulations and Limitations on Evidence, dated February 6 , 2001, I had previously expressed my "inclination" to limit the introduction of evidence. This earlier order, establishing a prerequisite of relevancy for the admission of evidence, was discussed extensively at the initial hearing, on February 13, 2001.
On April 5, 2001, the UMWA submitted a facsimile opposing Emerald's Motion in Limine. The MSHA filed a response to Emerald's most recent motions on April 9, 2001. On April 9, 2001, the UMWA filed a Request to Enforce the 1995 Proposed Decision and Order seeking clarification of my March 22, 2001 Ruling and Order. Understandably, the remaining parties have not yet responded to the UMWA's most recent motion.
However, on April 10, 2001, the MSHA submitted a request for clarification of my March 22, 2001 Ruling and Order. MSHA points out the 2000 PDO is not self-executing and cannot become effective until certain terms and conditions are implemented, specifically items 36 (training) and 38 (inspection). Until Emerald notifies MSHA the mine is in full compliance with these conditions, MSHA has no choice but to enforce the 1995 PDO. Further, MSHA states, since the March 22, 2001 Ruling and Order cannot go into effect until the 30th day after service on the parties (30 C.F.R. § 44.32(a)), the 2000 PDO cannot go into effect before April 23, 2001. MSHA therefore ask the March 22, 2001 Ruling and Order be amended to clarify that it will not go into effect until April 23, 2001 and after Emerald has notified MSHA, in writing, the mine is in full compliance with the conditions set forth above.
Parties' Arguments
UMWA
The UMWA argues that: (a) it explicitly followed the "inherently confusing" regulations; (b) did not intend its hearing request to be a "partial" appeal; (c) no party had identified it as such until the preliminary hearing in this matter; (d) a partial appeal may not be "forced" upon it; and MSHA's interpretation is entitled to deference, under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Union is not in a position to say only six issues are to be resolved and its settlement negotiations should not be used against it. The safety and health of the workforce compel enforcement of the 1995 PDO until the instant challenge is resolved.
Earlier, in an undated Reply to Brief of Administrator, received March 16, 2001, the UMWA submitted additional information setting forth its position about how it believes the 2000 PDO will affect health and safety conditions at the Emerald No. 1 Mine. While certain of the information submitted relates to issues it had previously raised, some matters, i.e., electrical and hydraulic, are new.
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Primarily, the UMWA argues the new 2000 PDO eliminates various mandatory negotiated health and safety conditions currently in effect at the mine, as a matter of "administrative convenience" and Emerald "intends to apply the September 5, 2000, PDO in a manner that will alter its current mining projections and create additional hazards" (Reply to Brief of Administrator, p. 4). The UMWA argues at length about the potential adverse safety impact, i.e., electrical, methane gas, respirable coal dust, ventilation, methane monitoring, rock dust, escapeways, and hydraulic, of a potential increase in the size of Emerald's longwall panels from 1,000 by 14,000 feet to 2,000 by 20,000 feet.
The UMWA complains that raising such issues in this forum is the only way the UMWA's concerns will be seriously considered because while the plan approval process permits UMWA comments, there is no agency obligation to consider or explain its treatment of the miners' concerns and no judicial review is permitted. It suggests an intention to offer evidence concerning the Williams Station and Wilberg Mines rapid plan approval process, ensuing hazards and investigations, to illustrate the deficiencies and unreliability of the plan approval process.
In response to Emerald's Motion in Limine, the UMWA argues the former has been "acutely aware" of the Union's issues to date and had heard the undersigned's determination that the health and safety of the miners were relevant. The inclusion of evidence concerning mining disasters is needed to re-enforce the UMWA's concerns regarding its lack of input into MSHA's plan approval process. The UMWA needs to address hazards, i.e., methane gas liberation, respirable dust, float dust, etc., which will be created during the mining process Emerald intends to implement.
In its April 9, 2001 Request to Enforce the 1995 Proposed Decision and Order, the UMWA complains that despite my March 22, 2001, Ruling and Order finding the 2000 PDO in effect at Emerald's mine, the MSHA District 2 personnel agreed with Emerald personnel that it was operating under the 1995 PDO. The UMWA argues Emerald's position is inconsistent with its stance in the present litigation. It states, ". . . RAG and MSHA's actions clearly demonstrate their lack of desire or ability to adequately protect miners without binding measures in place." The UMWA concludes requesting an Order instructing the MSHA and Emerald of their responsibilities "so as to prevent further manipulation of the system."
Emerald
Emerald argues the UMWA Motion should be denied as it has provided no legal basis for reconsideration. The UMWA's failure to characterize its appeal does not determine its nature. The regulation is clear, not confusing and intended to limit the hearing to specific disputed issues. The UMWA only disputes thirty-five of the forty-one conditions in the 2000 PDO and that Emerald has been operating under a modification (the 1995 PDO) of the mandatory standard of 30 C.F.R. § 75.1002 since 1990 without objection. The MSHA's position in this matter "does not appear to rise to the level of an interpretation' of the
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regulation since it is the application of specific facts to the law." Even if it were an "interpretation", it is not entitled to deference because it is unreasonable. MSHA's interpretation would render the partial appeal regulation "practically meaningless". The administrative law judge's resolution of the matter meets the two-step Chevron formula. Emerald enumerates the conditions of the 2000 PDO which the UMWA challenges:
1. The inclusion of language in Item 15 of the 2000 PDO referring to a separate 101(c) petition (Request 3a);
2. The failure to include in Item 16 of the 2000 PDO a definition of "minor" cable repairs (Request 3b);
3. The wording of Item 38 of the 2000 PDO which describes how MSHA is to be notified when the equipment is put in service (Request 3c);
4. The language of Item 39 of the 2000 PDO because it does not provide for an additional methane sensor at mid-face (Request 3i); and,
5. The language of Item 41 of the 2000 PDO with respect to training (Request 3j).
It observes items 1-3 are minor and do not represent any significant expansion of the UMWA's appeal. Emerald then lists certain provisions the UMWA states it would like to see included in the 2000 PDO:
Emerald points out that items 3 and 5 are essentially recitations of existing mandatory safety standards.
Emerald moves to exclude UMWA evidence concerning the Williams Station and Wilberg Mines, should it be offered. While admitting review of alternate mining methods which deviate from mandatory coal mining safety standards permits inquiry into "potential safety losses", Emerald argues such evidence is irrelevant if the issues involved in the alleged potential safety losses are addressed by other mandatory standards. "The existence of any condition cannot represent a potential safety loss if it is addressed by a mandatory standard." (Motion in Limine, p. 3). The majority of the five unresolved issues, identified by the UMWA in its Motion to Withdraw Request for Hearing, appear to be related to an "extended width longwall face" are addressed by other mandatory safety standards and thus are irrelevant here.
Emerald argues the UMWA's basic premise that it presently intends to increase its longwall panels from 1,000 by 14,000 feet to 2,000 by 20,000 feet is flawed in that current plans are evaluating the size of 1,250 foot panels.
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Emerald states the UMWA's concern over methane level monitoring ignores the fact that both ventilation and methane monitoring standards exist. For example: 30 C.F.R. § 75.323 requires electrical equipment, except methane monitoring systems, to be shut down if the methane level reaches 1% until the methane is reduced; 30 C.F.R. § 75.342 requires use of methane monitors on face equipment; 30 C.F.R. § 75.334 requires use of a bleeder ventilation system to control the air passing through an area like a longwall glob "to continuously dilute and move methane-air mixtures and other gases, dusts and fumes from the worked-out area away from the active workings"; 30 C.F.R. § 75.362(d) requires examinations for methane on a longwall face at the beginning of the shift, before the start up of equipment and every 20 minutes; 30 C.F.R. § 75.370 requires an operator to have an approved ventilation plan designed "to control methane and respirable dust" which must be reviewed every six months, under 30 C.F.R. § 75.370(g), to "assure that it is suitable to the current conditions of the mine."
Emerald points out respirable coal dust must be addressed in the required ventilation plan, as well as meet the standards of 30 C.F.R. §§ 70.100 and 75.370. The UMWA ignores the mandatory standards covering float dust, rock dusting, and float dust limits in return airways set forth in 30 C.F.R. §§ 75.400, 75.402 and 75.403.
Emerald notes that the UMWA has raised "escapeway" issues, but the provisions it wishes to have restored to the 2000 PDO concern "intake airways". Escapeways are addressed by mandatory safety standards. 30 C.F.R. §§ 75.380, 75.384. The tailgate must be maintained as a travelway even if it is not an escapeway. See 30 C.F.R. § 75.384. Ventilation is addressed by a series of standards, under 30 C.F.R. § 75.370.
Emerald argues the UMWA's generalized evidence concerning undefined and speculative electrical and hydraulic issues should be excluded because not raised in its hearing request or pre-hearing report and they are framed as a series of questions. The UMWA has not connected its proposed evidence to the protection afforded by the standard and thus is irrelevant.
Emerald argues any evidence concerning accidents at other mines, i.e., Wilberg Mine, Pyros' William Station Mine, and Southmountain Mine, should be excluded as irrelevant and "outdated" because older mandatory safety standards were then in effect. Emerald states those accidents have nothing to do with high voltage longwall equipment and its introduction would cause lengthy (and unnecessary) relitigation of those matters.
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MSHA
The MSHA opposes Emerald's Motion in Limine as it attempts to exclude most, if not all of the UMWA's evidence and argues it should be treated as a motion for summary decision, under 30 C.F.R. § 44.40.
The Law
Partial versus Global Appeal
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
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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 regulations are to be carried out to give effect to the purpose of the Act by assuring adequate protection of miners and to secure just and prompt determination of all proceedings consistent with adequate consideration of the issues involved. The UMWA's hearing request is a "partial" appeal. In order to establish the admissibility of its proposed evidence, recognizing that effects unrelated to the goals of the original standard are relevant, the UMWA must first show a connection between it and the impact of the modification of the high-voltage safety standard. Evidence based on speculation concerning what Emerald might do in the future, i.e., create larger longwall panels, will not be admitted. I am without authority to review the MSHA's enforcement actions. The 2000 PDO is "in effect" during this appeal, but is not "final."
1. The UMWA's Motion for Reconsideration is DENIED;
2. The parties be prepared to address evidentiary limitations. Parties must be prepared with offers of proof concerning the potential effects of this modification on the other mandatory safety standards addressed. The challenger, the UMWA, will have the burden on this evidentiary matter;
3. Emerald's Motion in Limine is GRANTED, IN PART;
4. Evidence concerning the Williams Station and Wilberg Mines has not been shown to be relevant and absent such showing is inadmissable;
5. The UMWA's series of questions pertaining to hydraulic and electrical matters is problematic. If it wishes to present evidence concerning such issues, it must establish the requisite relationship between such evidence and the potential safety impact of the 2000 PDO terms and conditions. Evidence based purely upon speculation will not be admitted;
6. No response to the UMWA's Request to Enforce the 1995 Proposed Decision and Order or MSHA's Request for Clarification is required;
7. No further pre-hearing motions or reconsideration requests will be considered absent a written declaration from the submitting party that it has discussed the matter with the remaining parties and been unable to resolve the matter in question. In addition to such written declaration, the party submitting a motion shall explicitly state the positions of the remaining parties on the matter in question andwhether said parties oppose said motion. In order to be considered, any response to a motion filed by facsimile shall be filed within 24 hours of the time the facsimile of the original motion was received by the non-submitting party; and,
8. MSHA's Request for Clarification is DENIED.
RICHARD A. MORGAN
Administrative Law Judge
RAM:dmr
CONSENT FINDINGS
UNDER 30 C.F.R. § 44.27, AT ANY TIME AFTER A REQUEST FOR HEARING IS FILED A REASONABLE OPPORTUNITY MAY BE AFFORDED THE PARTIES TO PERMIT NEGOTIATION OF AN AGREEMENT CONTAINING CONSENT FINDINGS AND AN ORDER DISPOSING OF THE WHOLE OR ANY PART OF THE PROCEEDINGS.
[ENDNOTES]
1 Emerald observes the UMWA repeatedly refers to two "escapeways" being required in the headgate by the 1995 PDO. Emerald states this is incorrect, as the 1995 PDO calls for two entries with "intake air" in them. I note Item 39 of the 1995 PDO does, however, require designation of the primary escapeway entry as a fire-hazard-free entry.
2 I observe the partial appeal subsection, 30 C.F.R. § 44.14(c), does not appear to contemplate the appeal of terms and conditions omitted from the Administrator's PDO. Thus, the query "does an appeal of terms not included in the new PDO necessarily become a general or global' appeal?" Such a result would appear nonsensical.
3 If Emerald had not asked to include the modifications which pertain to non-high voltage electrical standards, I do not believe it would have been proper for the MSHA to include them as "terms and conditions" to the extent they were already subjects of other mandatory safety standards. Such existing mandatory safety standards need not be reiterated as "terms and conditions" in a PDO. If they are, I believe they would be invalid as a term of the PDO, but rather enforceable only under their regulatory form.. The condition in the 1995 PDO establishing the explicit length and width of longwall panels does not appear to be encompassed in any mandatory safety regulation. See 30 C.F.R. § 75.203(a) addressing "excessive widths". Subpart C, 30 C.F.R. § 200 et seq., sets forth comprehensive requirements for roof support and requires an approved roof control plan. Therefore, if Emerald has such an approved roof control plan encompassing longwall panels of the width and length set forth in the 1995 PDO, it would appear the size limitation in the 1995 PDO would have little, if any, legal effect.
4 30 C.F.R. § 44.11(a)(3) requires the petitioner to identify the safety standard to which the petition is directed. However, if the terms of the 1995 PDO addressing non-high voltage electrical mandatory safety standards were essentially void, Emerald need not have sought modification of such non-high voltage electrical standards in its petition to modify the requirements of 30 C.F.R. § 75.1002.
5 If the present appeal was considered a "global" appeal, the 1995 PDO would remain in effect. However, then I would have to determine whether the terms and conditions covered by mandatory safety standards other than 30 C.F.R. § 75.1002, were legally valid in that it appears a PDO may not address modification of more than one mandatory standard. I believe such terms and conditions in the PDO itself would be void.
6 It is again recommended the UMWA involve legal counsel in this proceeding. Secondly, because of the increasing frequency in documents submitted by the UMWA to this tribunal, I caution that ad hominem statements should be avoided and carry no weight whatsoever in my considerations.
7 As an aside, I observe there has been a great deal of confusion concerning which mandatory safety standard applies to Emerald's mine. I can only recommend this be considered in any potential enforcement actions.