FEDERAL MINE
SAFETY AND HEALTH
REVIEW COMMISSION
SECRETARY OF LABOR, |
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MINE SAFETY AND HEALTH |
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ADMINISTRATION (MSHA), |
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Petitioner,
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v. |
) Docket
Nos. KENT 2002-42-R |
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KENT 2002-43-R |
MARTIN COUNTY COAL CORP.
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KENT 2002-44-R |
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KENT 2002-45-R |
and |
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KENT 2002-251 |
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KENT 2002-261 |
GEO/ENVIRONMENTAL
ASSOCIATES, |
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KENT 2002-262 |
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Respondents. |
) |
REPLY BRIEF FOR THE SECRETARY OF LABOR
TABLE OF CONTENTS
INTRODUCTION
ARGUMENT
I. THE JUDGE ERRED BY DISMISSING THE CITATIONS ALLEGING
VIOLATIONS OF SECTIONS 77.216(d) AND 77.216-3(d) BEFORE THE COMPLETION OF THE
SECRETARY'S AFFIRMATIVE CASE
A.
The Secretary Did Not Waive Her Right to Call Additional
Witnesses
B.
The Judge's Dismissal of the Citations in Question Was Not
Harmless Error Because the Secretary's Rights Were Substantially
Affected
C.
The Judge's Dismissal of the Citations in Question Deprived
the Secretary of the Right to be Fully Heard Under Commission Procedural Rule
63(b)
D.
Summary Decision Was Inappropriate
II. THE SECRETARY'S INTERPRETATION OF SECTION 77.216(d) WITH RESPECT
TO MCC'S FAILURE TO PERIODICALLY REDIRECT THE DISCHARGE OF FINE REFUSE SLURRY
ALONG THE SEEPAGE BARRIER IS CORRECT
A.
MCC, Like the Judge, Attacks an Interpretation the
Secretary Has Never Advanced
B.
MCC's Arguments With Regard to Interpretation Are
Wrong
1.
It is established law that the Secretary's reasonable
interpretation of a plan provision is entitled to deference
a.
The judge had an "opportunity to pass" on the question of
deference
b.
The Secretary's interpretation of an ambiguous plan
provision is entitled to deference
C.
MCC's Attempt to Evade the Plain Meaning of the Seepage
Barrier Provision Is Unpersuasive
D.
MCC Had Notice of
the Secretary's Interpretation
III. THE JUDGE ERRED BY FAILING TO MAKE AN "S&S" DETERMINATION WITH
RESPECT TO THE VIOLATION OF SECTION 77.216(d) HE AFFIRMED
IV. THE JUDGE ERRED IN FINDING THAT THE VIOLATION OF SECTION 77.216(d)
HE AFFIRMED WAS NOT AN "UNWARRANTABLE FAILURE"
V. THE JUDGE ERRED IN ASSESSING A PENALTY OF ONLY
$ 5,500 FOR THE VIOLATION OF SECTION 77.216(d) HE AFFIRMED
VI. THE OUTFLOW PIPE, COMBINED WITH A RULER USED TO MEASURE THE
DEPTH OF THE FLOW, WAS AN “INSTRUMENT” WITHIN THE MEANING OF SECTION
77.216-4(a)(2)
A.
Geo Had Adequate Notice That the Pipe and Ruler Used to
Measure the Impoundment Outflow from the South Mains Portal Was an Instrument
under Section 77.216-4(a)(2)
VII. UNDISPUTED EVIDENCE ESTABLISHED THAT GEO, IN VIOLATION OF SECTION
77.216-3(d), FAILED TO RECORD THE ABATEMENT OF HAZARDS IN THE SEVEN-DAY
IMPOUNDMENT EXAMINATION REPORT
CONCLUSION
CERTIFICATE OF SERVICE
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INTRODUCTION
In her opening brief, the Secretary argued that the administrative law judge
incorrectly dismissed citations alleging violations of 30 C.F.R. §§ 77.216(d),
77.216-3(d), and 77.216-4(a)(2), and that the judge inadequately and incorrectly
analyzed the "significant and substantial" ("S&S"), "unwarrantable failure,"
and civil penalty aspects of the violation of Section 77.216(d) he
affirmed. For the reasons set forth in the Secretary's opening brief and
this brief, MCC's and Geo's attempts to salvage the challenged aspects of the
judge's decision are unavailing. In particular, MCC and Geo repeatedly
attempt in effect to persuade the Commission to affirm findings the judge simply
did not make. Because MCC and Geo cannot argue in support of findings the
judge did not make, and because the Commission cannot affirm findings the judge
did not make, the Commission should vacate the aspects of the judge's decision
challenged by the Secretary.
ARGUMENT
I.
THE JUDGE ERRED BY DISMISSING THE CITATIONS ALLEGING
VIOLATIONS OF SECTIONS 77.216(d) AND 77.216-3(d) BEFORE THE COMPLETION OF THE SECRETARY'S AFFIRMATIVE CASE
The Secretary demonstrated
in her opening brief that the judge erred by dismissing, in response to a motion
to dismiss by MCC and Geo and before the completion of the Secretary's
affirmative case, the citations alleging violations of Section 77.216(d)
consisting of MCC's failure to periodically redirect the fine refuse slurry
discharge along the seepage barrier and Section 77.216-3(d) consisting of Geo's
failure to record the abatement of hazards in the seven-day impoundment
examination report. The judge erred by dismissing the two citations in
question before the Secretary had an opportunity to fully present all relevant
evidence pertaining to the violations and before the judge had an opportunity to
carefully consider all of the evidence the Secretary had submitted. In
addition, the judge engaged in no legal analysis with respect to the plain
meaning or ambiguity of the "seepage barrier" provision.
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A. The Secretary Did Not Waive Her Right to Call Additional
Witnesses
MCC asserts (Response Brief at 5-6) that, under Rule
59 of the Federal Rules of Civil Procedure, the Secretary waived the argument
that the judge made his ruling without considering all of the relevant evidence
because the Secretary failed to raise the argument before the judge made his
initial ruling granting partial dismissal during the hearing. Tr.I
1221. See Order of July 2, 2003. MCC's assertion is
fundamentally flawed.
Rule 59 authorizes a motion to alter or amend a
judgment after the entry of judgment.
See Building Industry Ass'n of Superior California v. Secretary of
Interior, 247 F.3d 1241, 1245 (D.C. Cir. 2001) (Rule 59 only applies to
final judgments); Wright and Miller, Federal Practice and Procedure, § 2810.1
(1995). Thus, the question here is whether the Secretary raised the
argument before the judge issued a final decision. She did. The
Secretary raised the argument in her motion for reconsideration of the judge's
ruling granting partial dismissal -- a ruling that was not entered as a final
decision. See Secretary of Labor on behalf of David Hopkins v.
Asarco, 1996 WL 384375 (July 1995) (judge's disposition of less than all
claims was not a final decision). Accordingly, Rule 59 has no
applicability.(1)
B. The Judge's Dismissal of the Citations in Question Was Not
Harmless Error Because the Secretary's Rights Were Substantially
Affected
An error is "harmless" when
it "does not affect the substantial rights of the parties." Fed. R. Civ.
Proc. 61. MCC's assertion (Response Brief at 6-7) that any error in the
judge's initial ruling was "harmless" because it was corrected by the order on
reconsideration issued on August 28, 2003, is incorrect.
Neither the judge's order denying the Secretary's
motion for reconsideration nor the summary of the dismissal in Appendix A to the
judge's decision of January 14, 2004, reconsidered or revisited the judge's
initial dismissal of the citations on June 12, 2003. Both in the order
denying reconsideration and in the summary of the dismissal, the judge failed to
discuss the testimony of MSHA's expert witness as it pertained to the
Secretary's prima facie case -- i.e., the
Secretary's case that MCC's method of discharging the slurry in the impoundment
was ineffective and could not possibly have covered the barrier with fines as
intended by the seepage barrier provision, and that the term "redirect" required
MCC to either move the discharge pipe or take some other equivalent action so
that fine refuse would be deposited along the barrier to minimize seepage from
the impoundment into the mine. In addition, the judge failed in both
documents to discuss the deposition testimony of Foreman Gooslin as it pertained
to both of the violations in question. Moreover, none of the judge's rulings contained any legal analysis with
respect to the plain meaning or ambiguity of the seepage barrier provision.
The judge's initial error should not be found to be "harmless" because the
Secretary's rights in the proceeding have been substantially affected.
See Greensboro-High Point Airport Auth'y v. Civil Aeronautics Bd.,
231 F.2d 517, 521-22 (D.C. Cir. 1956) (failure to consider an issue that was
"flatly raised" was not harmless error). Here, both in the order denying
reconsideration and in the summary of the dismissal, the judge failed to address
all of the relevant evidence and analyze the evidence in accordance with
applicable law and failed to engage in any legal analysis regarding the plain
meaning or ambiguity of the seepage barrier provision. The judge's ongoing
and uncorrected failure to address and analyze all of the relevant evidence
substantially affected the Secretary's rights in the proceeding.
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C. The Judge's Dismissal of the Citations in Question Deprived
the Secretary of the Right to be Fully Heard Under Commission Procedural Rule
63(b)
The Secretary demonstrated
in her opening brief that the judge's initial ruling on June 12, 2003, deprived
the Secretary of her right to present "a full and true disclosure of the facts"
under Commission Procedural Rule 63(b). In addition, as demonstrated
above, neither the order denying reconsideration nor the summary of the
dismissal corrected the error.
MCC is incorrect in claiming
that the Secretary stated the wrong legal standard to be applied to the judge's
dismissal of the citations in question. Response Brief at 7-10.
Under Commission Procedural Rule 63(b), the Secretary is entitled to present a
"full and true" disclosure of the facts. In addition, under Rule 52(c) of
the Federal Rules of Civil Procedure, which is consistent with Commission Rule
63(b), the Secretary is entitled to be "fully heard" before a judge issues a
ruling. For three reasons, the judge failed to meet the applicable
standard when he dismissed the citations in question. First, the Secretary
was deprived of the opportunity to fully present all relevant evidence
pertaining to the violations. Second, the judge did not have an
opportunity to fully and carefully consider all of the evidence the Secretary
had submitted. Third, the judge failed to engage in any legal analysis
with respect to the plain meaning or ambiguity of the "seepage barrier"
provision. Accordingly, the judge committed legal error in dismissing the
two citations in question.
D. Summary Decision Was Inappropriate
Geo is mistaken in asserting (Response Brief at
18-24) that it was entitled to summary decision as a matter of law. Under
Commission Procedural Rule 67, summary decision shall be granted only if "there
is no genuine issue as to any material fact" and "the moving party is entitled
to summary decision as a matter of law." 29 C.F.R. § 2700.67.
Summary decision is not appropriate where the nonmoving party has not had an
opportunity to present all of its evidence. See Celotex Corp. v.
Catrett, 477 U.S. 317, 326-27 (1986). Summary decision was not
appropriate here because the judge dismissed the citation before having an
opportunity to fully and carefully consider Gooslin's deposition testimony
describing the action taken to abate the hazardous condition, which was not
included in the seven-day impoundment inspection report.
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II. THE SECRETARY'S INTERPRETATION OF SECTION 77.216(d) WITH RESPECT
TO MCC'S FAILURE TO PERIODICALLY REDIRECT THE DISCHARGE OF FINE REFUSE SLURRY
ALONG THE SEEPAGE BARRIER IS CORRECT
A. MCC, Like the Judge, Attacks an Interpretation the
Secretary Has Never Advanced
The Secretary demonstrated in her opening brief (1) that MSHA, MCC, and the
inspector who was called as MCC's witness all agreed on the meaning of the
seepage barrier provision: fine refuse had to adequately cover the seepage
barrier to reduce or limit seepage from the impoundment into the mine; (2) that
using the traditional tools of interpretation, which include both the text and
the purpose of the provision, the plain meaning of the seepage barrier provision
can be discerned; and (3) that in the alternative, if the meaning of the seepage
barrier provision was ambiguous because the provision was silent as to the
particular method to be used to discharge the slurry along the barrier, the
Commission should defer to the Secretary's interpretation of the provision
because that interpretation is reasonable, i.e., is consistent with the
plan's language and purpose.
The judge dismissed the citation because he found that the Secretary never
established that a reasonably prudent mining engineer would have understood the
seepage barrier provision to mean that MCC had to physically move the discharge
pipe. Order of August 28, 2203, at 3. The interpretation that MCC
had to physically move the pipe, however, is not the interpretation the
Secretary advanced. Instead, the interpretation advanced both by the
Secretary and by MCC was that MCC had to use some method that would
adequately cover the seepage barrier. The judge never addressed that
interpretation and never determined whether MCC adequately covered the seepage
barrier.
MCC cursorily asserts that it did adequately cover the seepage barrier.
Response Brief at 11. This assertion cannot avail MCC, however, because
the judge did not make such a finding, and the Commission cannot affirm a
finding the judge did not make. Because the judge never made a finding as
to whether MCC adequately covered the seepage barrier, the Commission should
remand the case to a judge to resolve that determinative factual question after
considering all of the relevant evidence. See Gary D. Morgan v.
Arch of Illinois, 21 FMSHRC 1381, 1392-93 (Dec. 1999);
Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994).
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B. MCC's Arguments With Regard to Interpretation Are
Wrong
1. It is established law that the Secretary's reasonable
interpretation of a plan provision is entitled to deference
Most of MCC's arguments with
regard to interpretation pertain to whether the Secretary's interpretations of
ambiguous plan provisions are entitled to deference. If the Commission
finds that the plan provision in this case was unambiguous -- and it should --
it need not reach MCC's deference-related arguments. If the Commission
reaches MCC's deference-related arguments, it should reject them for the reasons
given below.
a. The judge had an "opportunity to pass" on the question of
deference
MCC's claim that the
Commission need not consider the question of deference because the Secretary
failed to raise the issue before the judge (Response Brief at 12) is
unpersuasive.
Section 113(d)(2)(A)(iii) of the Mine Act provides that "[e]xcept for good
cause shown, no assignment of error by any party shall rely on any question of
fact or law upon which the administrative law judge has not been afforded an
opportunity to pass." 30 U.S.C. § 823(d)(2)(A)(iii). An "opportunity
to pass" is provided when a reasonable fact-finder would necessarily have seen
the question raised as part of the case. Time Warner Entertainment Co.
v. FCC, 144 F.3d 75, 81 (D.C. Cir. 1988). See also
BHP Copper, Inc., 21 FMSHRC 758, 761 (July 1999) ("a matter raised on
review must have been at least implicitly raised below or intertwined with an
issue tried before the judge") (internal citations and quotation marks
omitted). In her post-hearing brief to the judge, the Secretary raised the
question of deference in discussing the alleged violation of Section 77.216(d)
consisting of MCC's failure to report an unusual change in flow from the South
Mains Portal. See Secretary's Post-Hearing Brief at 19. In
addition, in her motion for reconsideration, the Secretary asserted that the
plain meaning of the seepage barrier provision was controlling but acknowledged,
in the context of a notice claim raised by MCC, that the language of the
provision might be ambiguous. See Secretary's Motion to Reconsider
Orders of Dismissal at 18; Secretary's Response to the Opposition to
Reconsideration at 4-5. Having been apprised of the underlying question of
interpretation, the judge should have applied the established law.
See Connecticut Dept. of Public Utility Control v. FCC, 78
F.3d 842, 849 (2d Cir. 1996).
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b. The Secretary's interpretation of an ambiguous plan
provision is entitled to deference
In Energy West Mining Co., 17 FMSHRC 1313, 1317 and n.6 (Aug. 1995),
the Commission held that a ventilation plan provision was ambiguous and, noting
that "[a]n agency's reasonable interpretation of its regulations is entitled to
deference," remanded the case for a determination of "whether the Secretary's
interpretation of the provision [was] reasonable ...." Accordingly, MCC's
suggestion (Response Brief at 13) that there is no Commission case law to
support the Secretary's claim that the Secretary's reasonable interpretation of
an ambiguous plan provision is entitled to deference is wrong.
MCC's reliance on Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1280-81
(Dec. 1998) (Response Brief at 12), is misplaced. The Commission in
Harlan held that the Secretary has the burden of production with respect
to establishing the meaning of an ambiguous plan provision intended by the
parties. The Commission never addressed the question of whether the
Secretary's interpretation was entitled to deference. See
Sharkey v. Ultramar Energy Ltd., 70 F.3d 226, 230 (2d Cir. 1995) (a party
may have the burden of production and be entitled to
deference).
MCC argues that, under United States v. Mead Corp., 533 U.S. 218
(2001), the Secretary's interpretation of a plan provision is not entitled to
traditional Chevron deference because neither the Secretary's approval of
a mine-specific plan nor the Secretary's issuance of a citation for a violation
of the plan represents the exercise of delegated authority to make rules
carrying the force of law. Response Brief at 12-13. MCC is mistaken
on both points.
As to the first point, the Secretary's approval of a mine-specific plan
represents the exercise of authority delegated to the Secretary under the Mine
Act to impose mine-specific plan requirements carrying the same legal force as
nation-wide standards. See UMWA v. Secretary of Labor, 870
F.2d 662, 671 (D.C. Cir. 1989) (roof control plan). See also
Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Penn
Allegh Coal Co., 3 FMSHRC 2767, 2772 (Dec. 1981).
As to the second point, the Secretary's exercise of delegated authority may
take the form of the issuance and litigation of a citation. In
Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1 (D.C. Cir. 2003), the
District of Columbia Circuit accorded the Secretary's interpretation
Chevron deference and stated:
[I]n the statutory scheme of the Mine Act, "'the Secretary's litigating
position before [the Commission] is as much an exercise of delegated lawmaking
powers as is the Secretary's promulgation of a ... health and safety standard,'"
and is therefore deserving of deference.
334 F.3d at 6 (quoting RAG Cumberland Resources LP v. FMSHRC, 272 F.3d
590, 596 n.9 (D.C. Cir. 2001) (quoting Martin v. OSHRC, 499 U.S. 144, 157
(1991)).
MCC's claim (Response Brief at 13) that the
Secretary's interpretation it is not entitled to deference because it is being
set forth for the first time during the litigation of this case is unsupported
by the law. An interpretation may be set forth for the first time during
the litigation of a case so long as there is "no reason to suspect that the
interpretation does not reflect the agency's fair and considered judgment."
Bigelow v. Dept. of Defense, 217 F.3d 875, 878 (D.C. Cir. 2000)
(quoting Auer v. Robbins, 519 U.S. 452, 462 (1997)). Here, as in
Bigelow, there is no reason to suspect that the interpretation set forth
during this case is anything other than the position of the agency. In
addition, there is no evidence that MSHA has ever before had any reason to
address the issue, and there is no evidence that MSHA has ever adopted a
different interpretation or contradicted its position on appeal.
Accordingly, the Secretary's interpretation is entitled to deference because it
reflects the agency's considered opinion.
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C. MCC's Attempt to Evade the Plain Meaning of the Seepage
Barrier Provision Is Unpersuasive
None of the factors relied on by MCC -- (1)
testimony that it may have been hard to physically relocate the pipe because
that would have required a new method for decanting clarified water, (2) a 1998
modification to the August 1994 impoundment sealing plan, and (3) testimony with
respect to industry practice (Response Brief at 15-17) -- alter the plain
meaning of the provision: that MCC had to use some method that would
adequately cover the seepage barrier.
First, MCC was free to choose any method to
comply with the provision, as long as the seepage barrier was effectively
covered with fines. If the chosen method was difficult or ineffective at
achieving the purpose of the provision, MCC could have explored alternative
methods with MSHA. Tr. 204.
Second, the 1998 modification only addressed the
placement of fine refuse during the construction of an embankment to increase
the capacity of the impoundment, and did not change or modify the 1994 seepage
barrier provision. Tr.I 325-327.
Third, common industry
practice does not establish that the Secretary's interpretation is
unreasonable. This impoundment was unique: it was constructed with a
seepage barrier that was not a typical impoundment construction. Tr.II 56,
315-318. Thus, general industry custom and practice is of limited
relevance. See generally Bristol Steel & Iron Works,
Inc. v. OSHRC, 601 F.2d 717, 722 (4th Cir. 1979) (industry custom and
practice cannot be used to subvert the purpose of safety legislation).
Likewise, the Coal Impoundment Procedures Manual is merely a general reference
guide and does not address the terms of the unique impoundment sealing plan in
this case, which was designed and approved for this specific site. Tr.I
323-325.
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D. MCC Had Notice of the Secretary's Interpretation
The Secretary demonstrated
in her opening brief that MCC had notice of her interpretation from the plain
terms of the seepage barrier provision, from the provision's stated and intended
purpose, and from Ogden's explicit suggestion in 1996 or 1997 to MCC that the
discharge pipe be moved along the barrier.
MCC's claim that the Secretary failed to meet her
burden of providing fair notice because the plan "said nothing about relocating
the pipe" is unavailing. Response Brief at 17-19. Adequate notice
may be provided in a variety of ways. Here, for example, the Secretary
demonstrated that MCC had adequate notice of her interpretation because it knew,
from the plain language of the plan, that it was required to direct the fine
refuse over the length of the seepage barrier by periodically changing the
course of the discharge of fine refuse slurry. See Peterson
Bros. Steel Erection Co. v. Secretary of Labor, 26 F.3d 573, 576 (5th Cir.
1994) (if the wording of a provision is explicit and unambiguous, notice is
adequate without consideration of any other factors).
In addition, if MCC could only accomplish adequate
coverage by relocating the pipe, the fact that the plan itself did not specify
relocation is irrelevant. The fact that Ogden, the original drafter of the
plan, expressly told MCC to move the pipe to distribute the fines establishes
that MCC had adequate notice that such relocation was required.
See, e.g., Ohio Cast Products, Inc. v. OSHRC, 246 F.3d 791,
798-99 (6th Cir. 2001) (notice provided because company's private consultant and
expert had first-hand knowledge of OSHA's methodology); United States v.
Pitt-Des Moines, Inc., 168 F.3d 976, 987 (7th Cir. 1999) (notice provided by
communications from client's on-site representative and from general
contractor).
Moreover, adequate notice was provided because a reasonably prudent person,
evaluating the purpose of the provision and the situation presented, would know
that the provision meant that the fines had to be effectively distributed along
the seepage barrier to prevent leakage from the impoundment. See
Stillwater Mining Co. v. FMSHRC, 142 F.3d 1179, 1182 (9th Cir. 1998)
(reasonably prudent mine operator would understand that provision prohibited
using equipment beyond design capacity so as to create hazard to miners);
Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362 (D.C. Cir.
1997) (reasonably prudent mine operator would understand that allowing beams
supporting walkway to deteriorate to point of collapse constituted failure to
maintain in good repair so as to prevent accidents and injuries to miners);
Island Creek Coal Co., 20 FMSHRC 14, 24-25 (1998) (reasonably prudent
mine operator would understand that six-hour flow of methane and elevated levels
of methane represented safety hazard). As cited in our opening brief, MSHA
Engineers John Fredland, Patrick Betoney, and Harold Owens, MSHA Inspector
Robert Bellamy, MCC Superintendent Larry Muncie, MCC President and General
Manager Dennis Hatfield, all testified that the seepage barrier provision
meant that the fines had to be effectively distributed along the seepage barrier
to prevent leakage from the impoundment. See Secretary's Opening
Brief at 22-23.
MCC's reliance on the fact that the inspector never issued a citation to MCC
and never told MCC that it was doing anything inconsistent with the plan does
not establish a lack of notice. Response Brief at 19. Although the
fact that MSHA did not issue a citation in the past is one of the elements to be
weighed in evaluating a fair notice defense, it is not a dispositive element --
that is, it is not sufficient by itself to establish that MCC was not aware of
the plan's requirements. See Fluor Daniel v. OSHRC, 295 F.3d
1232, 1238-39 (11th Cir. 2002); Donovan v. Daniel Marr & Son Co., 763
F.2d 477, 484 (1st Cir. 1985); Alan Lee Good, doing business as Good
Construction, 23 FMSHRC 995, 1005-06 (2001). A fair notice defense
based solely on the fact that the agency has not issued a citation before
amounts to an estoppel-by-inaction defense -- and the government cannot be
estopped by inaction from enforcing the law. See Secretary's
Opening Brief at 35-36.
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III.
THE JUDGE ERRED BY FAILING TO MAKE AN "S&S" DETERMINATION WITH
RESPECT TO THE VIOLATION OF SECTION 77.216(d) HE AFFIRMED
The Secretary demonstrated
in her opening brief that substantial evidence supports the judge's findings
with respect to the first two parts of the Commission's test for determining
whether a violation is significant and substantial ("S&S"). The Secretary
also demonstrated that the judge failed to analyze the evidence and make
findings with respect to the third and fourth parts of the "S&S" test.
As explained in the
Secretary's opening brief (pp. 36-37), to establish that a violation is S&S
under Commission case law, the Secretary must establish:
(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.
Mathies Coal Co., 6 FMSHRC 1, 3 (Jan. 1984). As to the first two
parts of the "S&S" test the Secretary relies on the arguments in her opening
and response briefs, in support of the judge's finding that there was an unusual
change in flow from the South Mains Portal that was not reported to MSHA, and
that the reporting failure contributed to the magnitude and timing of the
impoundment failure. See Secretary's Opening Brief at 36-41;
Secretary's Response Brief at 9-26.
As to the third and fourth parts of the "S&S" test, MCC asserts, in
effect, that the judge made implicit findings that satisfy the Commission
test. Response Brief at 20-23. MCC's transparent attempt to salvage
this aspect of the judge's decision is unavailing. The judge failed to
make and explain appropriate findings with respect to the third and fourth parts
of the "S&S" test, and failed to make any finding as to whether the
violation was "S&S." See Eagle Nest, Inc., 14
FMSHRC 1119, 1123 (July 1992) ("A judge must analyze and weigh the relevant
testimony of record, make appropriate findings, and explain the reasons for his
decision."). The Commission should therefore vacate this aspect of the
judge's decision and remand the case for adequate analysis and appropriate
findings. Ibid.
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IV.
THE JUDGE ERRED IN FINDING THAT THE VIOLATION OF SECTION 77.216(d)
HE AFFIRMED WAS NOT AN "UNWARRANTABLE FAILURE"
The Secretary demonstrated
in her opening brief that the judge applied an incorrect "unwarrantable failure"
test and that the judge failed to analyze the relevant evidence under Commission
case law. MCC argues that the judge's application of a "wanton or reckless
disregard" test was correct because the judge's use of the word "or" indicates
that the judge applied the terms "wanton" and "reckless" in the disjunctive and
found that the violation was not unwarrantable because it was neither "wanton"
nor "reckless." Response Brief at 24-25. MCC's argument is
misplaced.
First, it is only reasonable
to assume that the judge used the term "wanton" because he believed that it is
part of the Commission's "unwarrantable failure" test. It is not.
Second, the Commission has found an unwarrantable
failure violation where the operator's conduct was less than reckless.
See Eagle Energy, Inc., 23 FMSHRC 829, 839 (Aug. 2001) ("a finding
of unwarrantable failure does not require a finding of 'reckless
disregard'").
MCC also argues that the judge's reference to "life
and property" in his unwarrantable failure analysis was
proper. Response Brief at 25. It is only reasonable to assume that
the judge used the term "property" because he believed that it is part of the
Commission's "unwarrantable failure" test. It is not.
MCC also argues that the judge considered the
relevant evidence under the Commission's "unwarrantable failure" case law.
Response Brief at 25-28. MCC is mistaken. Although the judge
discussed various items of evidence, he did not discuss that evidence in the
context of an "unwarrantable failure" analysis. Because the judge failed
to conduct an appropriate and adequate "unwarrantable failure" analysis, the
Commission should vacate this aspect of the judge's decision and remand the case
for such an analysis. See Arch of Illinois, 21 FMSHRC
at 1392-93; Mid-Continent Resources, 16 FMSHRC at 1222.(2)
V. THE JUDGE ERRED IN ASSESSING A PENALTY OF ONLY $ 5,500 FOR THE VIOLATION OF SECTION 77.216(d) HE AFFIRMED
The Secretary demonstrated
in her opening brief that the judge failed to consider and make findings with
respect to three of the six statutory criteria that must be considered in
assessing civil penalties under Section 110(i) of the Mine Act. The
Secretary also demonstrated that the judge erred because he failed to explain
why he reduced the proposed penalty by 90 percent.
MCC claims, in effect, that the judge implicitly addressed all of the
statutory criteria and explained the penalty reduction. Response Brief at
28-31. Again, MCC attempts to do for the judge what the judge did not do
himself. Because the judge failed to explicitly address all six statutory
criteria, and because the judge failed to adequately explain why he reduced the
proposed penalty, the judge committed legal error. See Cantera
Green, 22 FMSHRC 616, 620-21 (May 2000). See also
Virginia Slate Co., 23 FMSHRC 482, 492-95 (May 2001); Douglas R.
Rushford Trucking, 22 FMSHRC 598, 602 (May 2000). The Commission
should therefore vacate the judge's penalty assessment and remand the penalty
issue for explicit findings and an adequate explanation. See
Arch of Illinois, 21 FMSHRC at 1391-92; Mid-Continent
Resources, 16 FMSHRC at 1222.
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VI. THE OUTFLOW PIPE, COMBINED WITH A RULER USED TO MEASURE THE
DEPTH OF THE FLOW, WAS AN “INSTRUMENT” WITHIN THE MEANING OF SECTION
77.216-4(a)(2)
The Secretary demonstrated
in her opening brief that the judge erred in finding no violation of Section
77.216-4(a)(2) because he ignored the ordinary, dictionary meaning of the term
“instrument,” and because he failed to accord deference to the Secretary’s
interpretation of her own standard. None of the arguments raised by Geo
(Response Brief at 8-14) in support of the judge's finding undercuts the
Secretary's argument or merits further discussion.
A. Geo Had Adequate Notice That the Pipe and Ruler Used to
Measure the Impoundment Outflow from the South Mains Portal Was an Instrument
under Section 77.216-4(a)(2)
Geo claims (Response Brief
at 14-18) that it did not have fair notice that the pipe/ruler combination was
an instrument under Section 77.216-4(a)(2) because (1) the combination was not
included as an instrument in the impoundment sealing plan, (2) MSHA previously
accepted the annual certifications without issuing a citation, and (3) the
Secretary never told Geo that the combination was an instrument. Geo's
notice claims lack merit.
Geo had adequate notice from the plain language of the standard and from the
ordinary definition and specialized definition used by dam and impoundment
engineers. See, e.g., Freeman United Coal Mining Co. v.
FMSHRC, 108 F.3d 358, 362 (D.C. Cir. 1997) (applying ordinary dictionary
definition).
In addition, Geo’s own
actions over the course of five years demonstrate that GEO understood that the
pipe/ruler combination was an instrument within the meaning of the standard.
Geo conducted weekly inspections and monitoring of the impoundment from 1996 to
the time of the breakthrough in October 2000. GEO has never argued, with
respect to the citation regarding the inspector’s qualifications or otherwise,
that the weekly inspections and monitoring were not inspections under 30 C.F.R.
§ 77.216-3, which requires impoundment inspections and the monitoring and
recording of readings from instruments every seven days.(3) The fact that Geo monitored
the outflow at the South Mains Portal every seven days and recorded the readings
in the weekly impoundment inspection report indicates that Geo believed the
pipe/ruler combination was an instrument within the meaning of Section
77.216-3.
Although Geo claims that MSHA previously accepted the annual certifications
without issuing a citation (Response Brief at 17-18), that is not sufficient by
itself to establish a fair notice defense. See Fluor Daniel,
295 F.3d at 1232; Daniel Marr & Son, 763 F.2d at 484; Good
Construction, 23 FMSHRC at 1005-06. A fair notice defense based solely
on the fact that the agency has not issued a citation before amounts to an
estoppel-by-inaction defense -- and the government cannot be estopped by
inaction from enforcing the law. See Secretary's Opening Brief at
35-36.
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VII. UNDISPUTED EVIDENCE ESTABLISHED THAT GEO, IN VIOLATION OF SECTION
77.216-3(d), FAILED TO RECORD THE ABATEMENT OF HAZARDS IN THE SEVEN-DAY
IMPOUNDMENT EXAMINATION REPORT
The Secretary demonstrated
in her opening brief that the judge's finding that the impoundment inspector
"very tersely" noted on the seven-day inspection report dated October 12, 2000,
that the impoundment breakthrough had been plugged was incorrect.
Geo asserts that, under the plain language of Section 77.216-3(d), it only
had to report the abatement of a hazardous condition if the hazardous condition
existed at the time of the inspection. Geo Response Brief at 19-24.
Geo asserts that, under its interpretation, the abatement measures taken here
did not have to be reported because the hazardous condition was abated one day
before the inspection. Ibid. Geo's position is
unpersuasive.
The plain language of the standard requires the report to include "the
action taken" to abate a hazardous condition, not "the
action to be taken" or "the action being
taken." "Taken" is the past participle of "take." Webster's
Third New International Dictionary (1993) at 2332. Thus, the phrase
"action taken" refers to action a party took in the past. See,
e.g., Secretary of Labor on behalf of Terry McGill v. U.S. Steel
Mining Co., 23 FMSHRC 981, 986 (Sept. 2001) (using "action taken" to refer
to adverse action an operator took in the past); Western Fuels-Utah,
Inc., 19 FMSHRC 994, 1003 (Jun. 1997) (using "action taken" to refer to
abatement action an operator took in the past). Under the plain language
of the standard, the report has to include abatement actions that have already
been completed, i.e., abatement actions that occurred in the
past.
Even if the phrase "action
taken" is ambiguous -- which it is not -- the Secretary's interpretation is
entitled to deference because it is consistent with the design and purpose of
the standard. The fact that a qualified person has to inspect and report
every seven days suggests that one has to report any hazardous condition that
existed and was abated during those seven days. Indeed, if one only had to
report a hazardous condition that existed at the time of the inspection, the
requirement that one has to report the action taken to abate the condition would
usually be superfluous because, by the time the report was submitted, the
abatement action would be completed and the hazardous condition would not exist.
Reporting how hazards were abated during the seven-day period also provides a
comprehensive picture of what hazardous conditions arose and how those
conditions were abated during the seven-day period. In contrast, reporting
only abatement actions that are in the process of being taken at the time of the
inspection or are going to be taken in the future provides a picture so limited
as to serve little useful purpose.
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CONCLUSION
For all of the reasons
discussed above and in the Secretary's opening brief, the Commission should
vacate all of the aspects of the judge's decision challenged by the Secretary.
The Commission should affirm the violations of Sections 77.216(d), 77.216-3(d)
and 77.216-4(a)(2) and should remand all of the remaining issues for an analysis
that is careful and complete and in accordance with the law.
Respectfully submitted,
HOWARD M. RADZELY
Solicitor of Labor
EDWARD P. CLAIR
Associate Solicitor
W.
CHRISTIAN SCHUMANN
Counsel, Appellate Litigation
JACK POWASNIK
Attorney
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard, 22nd Floor
Arlington, Virginia 22209-2296
Telephone: (202) 693-9333
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the Secretary's reply brief was sent by
overnight delivery, on June 15, 2004, to:
Marco Rajkovich, Esq.
Melanie Kilpatrick, Esq.
Wyatt, Tarrant & Combs, LLP
250 West Main St., Suite 1600
Lexington, Ky. 40507-1746
Phone: 859-233-2012
Fax 859-259-0649
Mark Heath, Esq.
Spilman, Thomas & Battle, PLLC
300 Kanawha Blvd, East
P.O. Box 273
Charleston, WV 25321-0273
Phone: 304-340-3843
Fax 304-340-3801
_______________________
Jack Powasnik
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June 15, 2004
By Federal Express
Richard L. Baker
Executive Director
Federal Mine Safety and Health Review Commission
601 New Jersey Ave. NW
Suite 9500
Washington, D.C. 20001-2021
Re: Secretary of Labor v. Martin County Coal Co. and Geo/Environmental
Associates, FMSHRC Docket Nos. KENT 2002-42-R, 2002-44-R, 2002-45-R, 2002-251,
2002-261, and 2002-262
Dear Richard Baker:
I am enclosing the original and seven copies of the Secretary's reply brief
in the above case.
Very truly yours,
Jack Powasnik
Attorney
U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard, 22nd floor
Arlington, VA 22209-2296
(202) 693-9344
cc: Marco Rajkovich, Esq.
Mark Heath, Esq.
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________________________________
Footnotes:
(1)
In addition, the
Secretary did not waive her right to call additional witnesses under a general
waiver analysis. A waiver is a conscious, strategic decision to
"intentional[ly] relinquish[ ] or abandon[ ] ... a known right" United States
v. Olano, 507 U.S. 725, 733 (1993) (internal quotation marks and citation
omitted). The parties, and the judge himself, knew from prehearing
conference calls and the prehearing order that the hearing was divided into two
parts and that the Secretary would be presenting expert witness testimony during
the second part of the hearing scheduled for the week of August 6, 2003.
When counsel for the Secretary responded "that's it" to the judge's question
whether "that is the end," Tr.I 1221, counsel for the Secretary was simply
referring to the end of the Secretary's presentation of the fact witnesses,
since everyone knew that expert witnesses would not be presented until the
second part of the hearing. Accordingly, the Secretary did not
intentionally relinquish or abandon her right to call additional witnesses
before concluding her case-in-chief. Counsel for the Secretary's response
to the judge's question was fully explained to the judge in the Secretary's
motion for reconsideration.
(2)
Contrary to MCC's claim (Response Brief at 27), the Secretary provided adequate record
support in her opening brief that MCC knew or should have known that greater
care in monitoring and reporting was necessary. The fact that MCC knew
that it had a similar impoundment failure in May 1994 is supported by the MSHA
Report of Investigation and the impoundment sealing plan submitted to MSHA on
August 10, 1994. See Secretary's Opening Brief at 30-31, citing
GX-1 at p. 15 and GX-2. The fact that MCC knew that constructing a seepage
barrier within the impoundment was a new design concept is supported by the
testimony of MSHA expert witness Richard Almes and Geo Senior Project Manager
Scott Ballard. See Secretary's Opening Brief at 34, citing Tr.II
315-18. See also MCC Opening Brief at 3, citing Tr.II
56. The fact that MCC knew that the seepage barrier had to be adequately
covered with fines to control seepage into the mine is supported by the
testimony of MSHA Engineers John Fredland, Patrick Betoney, and Harold Owens,
MSHA Inspector Robert Bellamy, MCC Superintendent Larry Muncie, MCC President
and General Manager Dennis Hatfield, and Ogden, the original drafter of the
plan. See Secretary's Opening Brief at 22-23, citing Tr.I 53, 192,
486-87, 963, 1171-74, 1314; Tr.II 640; GX-2a, 2b. The fact that MCC knew
that the South Mains Portal was the designated monitoring point that measured
for possible impoundment leakage is supported by the MSHA Report of
Investigation and the impoundment sealing plan submitted to MSHA on August 10,
1994. See Secretary's Opening Brief at 5, citing GX-1, 2.
In addition, MCC's assertion that MSHA
reviewed the same data the Secretary claims should have been reported and never
found any unusual change overlooks MSHA Engineer Betoney's undisputed testimony
that it is the operator's responsibility to ensure that the impoundment is safe
because MSHA is at the impoundment infrequently. Tr.I 629.
(3) MSHA issued a
citation to Geo alleging a violation of Section 77.216(a)(4) because Geo's
impoundment examiner was not qualified to conduct impoundment inspections.
JX-4h.
|