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Secretary of Labor v. Ohio Valley Coal Company

February 24, 2004

SECRETARY OF LABOR, PETITIONER
v.
OHIO VALLEY COAL COMPANY AND FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, RESPONDENTS



On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission

Before: Edwards, Sentelle, and Tatel, Circuit Judges.

The opinion of the court was delivered by: Edwards, Circuit Judge

Argued January 12, 2004

This case arises out of a fatal accident in a mine owned and operated by the Ohio Valley Coal Company ("Ohio Valley"). Thomas Ciszewski, a mine belt foreman for Ohio Valley, had his arm severed by moving machinery while he was assessing necessary maintenance and repairs on the equipment. The injury resulted in his death shortly after the accident. The Department of Labor's Mine Safety and Health Administration ("MSHA") issued a citation against Ohio Valley for violating a regulation providing that "repairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion." 30 C.F.R. § 75.1725(c) (2003). The Federal Mine Safety and Health Review Commission ("FMSHRC" or "Commission") vacated the citation, holding that Mr. Ciszewski did not violate the regulation because he was not performing repair or maintenance when he was injured. Sec'y of Labor v. Ohio Valley Coal Co., 24 F.M.S.H.R.C. 1072, 1077 (2002). The Secretary of Labor ("Secretary") petitions for review of the Commission's decision, claiming that the disputed safety standard clearly applies when a miner is at the location of running machinery to assess what repair or maintenance is necessary to correct an apparent problem. We defer to the Secretary's reasonable interpretation of the regulation and grant the petition for review.

I. BACKGROUND

A. Statutory Background

The Mine Safety and Health Act ("Mine Act" or "Act"), 30 U.S.C. § 801-962 (2000), authorizes the Secretary of Labor to promulgate mandatory health and safety standards for the nation's mines. See 30 U.S.C. § 811. The Mine Safety and Health Administration acts on behalf of the Secretary to assure compliance with these health and safety standards by issuing citations for violations. See 30 U.S.C. § 814(a). MSHA also investigates mine accidents to determine the cause and the means of preventing recurrence. See 30 U.S.C. § 813(d). The Federal Mine Safety and Health Review Commission adjudicates disputes arising under the Act, see 30 U.S.C. § 823, including challenges by mine operators to citations issued by the Secretary of Labor. See RAG Cumberland Res. LP v. FMSHRC, 272 F.3d 590, 595 (D.C. Cir. 2001).

At issue in this case is the interpretation of a safety regulation addressing repairs and maintenance on moving machinery. The regulation states that

[r]epairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion, except where machinery motion is necessary to make adjustments.

30 C.F.R. § 75.1725(c).

B. Factual Background

The facts in this case are largely undisputed and set forth in full in the Commission's decision. See Ohio Valley Coal Co., 24 F.M.S.H.R.C. at 1072-74. We will therefore only briefly summarize the facts before turning to the issues presented by the petition for review. The Ohio Valley Coal Company owns and operates Powhatan No. 6 Mine, an underground coal mine in Belmont County, Ohio. Thomas M. Ciszewski, a belt foreman employed by Ohio Valley, was responsible for the operation of the belts at the Powhatan No. 6 Mine. On April 19, 2001, at around 5:15 p.m., Ohio Valley's pre-shift examiners heard a flapping noise near the stationary take-up roller at break 62 while examining the Second Main North Belt. They reported that the guarding around the belt take-up unit was in place; but they did not report the noise. Ohio Valley Coal Co., 24 F.M.S.H.R.C. at 1072-73; see also Joint Stipulation of Facts ("Joint Stip.") ¶ ¶ c, k-n, u-v, mm, Joint Appendix ("J.A.") 198-200.

At around 8:30 p.m. on April 19, two belt repairmen for Ohio Valley performed some repairs on the First Main North belt wings, near break 61. After finishing the repairs, they heard a voice calling for help nearby. They then saw a man stagger and fall. They ran to the man and found Thomas Ciszewski on the ground, missing his left arm, and suffering facial cuts. One repairman went to the accident site and found the arm lying outside the guarding in the walkway on the return side of the Second Main North belt conveyor. He brought the arm back to where Ciszewski had fallen. At 9:00 p.m., Ciszewski was pronounced dead. Ohio Valley Coal Co., 24 F.M.S.H.R.C. at 1073; see also Joint Stip. ¶ ¶ o, t, aa, cc, J.A. 199-201.

MSHA was notified of the accident at 9:20 p.m., and an initial response team arrived at the mine at 10:15 p.m. The response team then investigated the accident, taking photographs and measurements, and making drawings. The investigation was continued the following day. The MSHA investigators ultimately determined that a grease hose was inadvertently wrapped around the shaft of the stationary take-up roller on the track side of the belt, causing the flapping noise that had been heard by the pre-shift examiners. They reported that the guard panels that had been in place during the pre-shift examination had been removed. On the basis of their investigation, the MSHA team concluded that, while assessing the problem, Ciszewski's left arm had contacted and gotten caught in the pinch point between the moving belt and the stationary ...


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