Stillwater Min. Co. v. Federal Mine Safety and Health Review Com'n, 96-70805

• Decision Date: 28 April 1998
• Docket Number: No. 96-70805,96-70805
• Citation: 142 F.3d 1179
• Parties: 1998 O.S.H.D. (CCH) P 31,558, 98 Cal. Daily Op. Serv. 3146, 98 Daily Journal D.A.R. 4339 STILLWATER MINING COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor, Mine Safety and Health Administration (MSHA), Respondents. CA
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1179

142 F.3d 1179

1998 O.S.H.D. (CCH) P 31,558, 98 Cal. Daily

Op. Serv. 3146,

98 Daily Journal D.A.R. 4339

STILLWATER MINING COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor, Mine Safety and Health Administration (MSHA), Respondents.

CA No. 96-70805.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 3, 1998.

Decided April 28, 1998.

James J. Gonzales, Denver, Colorado, for petitioner.

Yoora Kim, U.S. Dept. of Labor, Office of Solicitor, Arlington, Virginia, for respondent.

On Petition for Review of a Decision of the Mine Safety and Health Review Commission. FMSHRC Nos. West 95-539-RM, West 96-214-M.

Before: BROWNING, SKOPIL, and O'SCANNLAIN, Circuit Judges.

SKOPIL, Senior Circuit Judge:

Stillwater Mining Company petitions for review of a final order issued by the Federal Mine Safety and Health Review Commission assessing a civil penalty on Stillwater for violating a general safety regulation prohibiting use of equipment beyond its design capacity. Stillwater contends that the regulation is impermissibly vague, application of the regulation is arbitrary and capricious, and there is not substantial evidence to support a finding that the equipment was being used beyond its design capacity. We reject these contentions, deny the petition for review, and thereby affirm the sanction.

I.

Stillwater operates an underground platinum mine near Nye, Montana. Ore from the mine is brought to the surface and dropped into chutes, each approximately 6 feet wide and 210 feet long. The chutes are constructed with bends that direct changes in the flow of the ore, thereby permitting the chutes to store up to 300 tons of material. At the bottom of each chute is a gate assembly that allows workers to funnel ore into waiting railcars. The gate assembly is supported by steel I-beams bolted to the chute with eight one-inch diameter bolts.

On August 21, 1995, two Stillwater employees were assigned to load ore from a chute into waiting railcars. The chute was full of ore that had not been emptied for four days; water had flowed into the chute, causing the material to turn into a sticky muck. The workers had considerable trouble keeping the material flowing down the chute. Using conventional methods--banging the gate assembly to vibrate the chute, applying water pressure to wash the material down the chute, and blasting the jammed material with explosives--the employees were able to free enough ore to fill three cars and part of a fourth.

When once again the material stopped flowing through the chute, the workers prepared to set another explosive blast in the chute to loosen the jam. As they approached the chute, however, the gate assembly suddenly detached, permitting ore and muck to flow unchecked from the chute. Both workers were knocked down by the impact of the ore; one escaped serious injury, the other was killed.

Acting pursuant to section 104(a) of the Federal Mine Safety and Health Act of 1977 (FMSHA), 30 U.S.C. § 814(a), the Mine Safety and Health Administration (MSHA) issued a citation alleging violations of various safety regulations. Following an evidentiary hearing, an Administrative Law Judge determined that Stillwater violated 30 C.F.R. § 57.14205, which provides that "[m]achinery, equipment, and tools shall not be used beyond the design capacity intended by the manufacturer, where such use may create a hazard to persons." In a written decision, the ALJ noted that the parties agreed the cause of the accident was "the failure of the bolts that held the chute gate assembly to the ... chute." Stillwater Mining Co. v. Secretary of Labor, 18 F.M.S.H.R.C. 1291, 1294 (1996). The ALJ specifically found that "the design capacity of the eight bolts holding the chute gate assembly was exceeded by the forces applied to those bolts before they failed." Id. at 1297. The ALJ rejected Stillwater's contention that bolts are not equipment for purposes of applying the regulation. Id. at 1296. Stillwater was assessed a civil penalty of $1500.

II.

Stillwater invokes traditional constitutional due process, arguing that the regulation at issue "fails to provide specific guidance as to those conditions and circumstances for which the citation issued." We recognize, of course, that "due process requires fair notice of what conduct is prohibited before a sanction can be imposed." Newell v. Sauser, 79 F.3d 115, 117 (9th Cir.1996) (citing Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972)). Similarly, the Commission has held that a "safety standard must provide adequate notice of the conduct it prohibits or requires, so that the mine operator ... may act accordingly." Mine Safety and Health Admin. v. Freeman United Coal Mining, 18 F.M.S.H.R.C. 438, 448 (1996). The standard is objective; the "appropriate test is not whether the operator had explicit prior notice of a specific prohibition or requirement, but whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard." Id. (internal quotation omitted); see also Donovan v. Royal Logging Co., 645 F.2d 822, 831 (9th Cir.1981) (noting standard is what a reasonably prudent employer in the industry would have known).

Applying this objective standard, we agree with the ALJ that the regulation at issue is sufficiently specific to have provided notice to Stillwater. As the Secretary argues, "[a]ny reasonably prudent mine operator would recognize that when affixing two portions of a structure--in this case, the chute and the chute gate assembly--to store and funnel over 300 tons of ore along a steep decline, the component used to fasten one portion of the structure to the other should be sufficiently strong to withstand the amount of force anticipated." The regulation here plainly prohibited Stillwater from using any of its equipment beyond its design capacity when to do so may create a hazard to its workers. There was no due process violation.

III.

Stillwater argues that section 57.14205 is inapplicable to the circumstances of this case. Specifically, Stillwater contends that neither the plain language of the regulation, nor agency guidelines, interpretations, policies, or enforcement citations permit MSHA to treat the failure of the chute gate assembly as a violation of section 57.14205. Stillwater fails to recognize, however, that "specific regulations cannot begin to cover all of the infinite variety of ... conditions which employees must face, and that by requiring regulations to be too specific courts would be opening up large loopholes allowing conduct which should be regulated to escape regulation." Freeman United Coal Mining Co. v. Federal Mine Safety & Health Review Comm'n, 108 F.3d 358, 362 (D.C.Cir.1997) (internal quotations omitted). Moreover, our review is limited to determining whether MSHA's decision to apply the regulation is arbitrary or capricious. See Phelps Dodge Corp. v. Federal Mine Safety & Health Review Comm'n, 681 F.2d 1189, 1192 (9th Cir.1982); see also Magma Copper Co. v. Secretary of Labor, 645 F.2d 694, 697 (9th Cir.1981) (noting that safety legislation "is to be liberally construed to effectuate the congressional purpose").

We conclude that it was not arbitrary or capricious to apply section 57.14205 to the event at issue. The focus of this case was clearly on the design capacity or strength of the bolts used to secure the gate assembly, not on the chute installation itself as Stillwater urges. It was plainly not improper for the ALJ to rule that "bolts are 'equipment' or part of 'equipment' within the meaning of section 57.14205." Stillwater, 18 F.M.S.H.R.C. at 1296. To rule otherwise could arguably have the effect of excluding all component parts of other equipment. As the Secretary observes, "to accept Stillwater's argument ... would allow mine operators to put together pieces of equipment without regard to ... structural integrity."

We also reject Stillwater's related arguments that section 57.14205 is inapplicable because there are specific regulations that pertain to chutes and there is no requirement that a chute even contain a gate. We agree that there are specific regulations pertaining to chutes that apply to Stillwater's operation. See, e.g., 30 C.F.R. §§ 57.9309, 57.9310. This does not mean, however, that other, more general safety regulations do not also apply. We also agree with Stillwater that there is no requirement that a chute installation have a chute gate. Nevertheless, as the Secretary correctly notes, "if a mine operator chooses to use a particular piece of equipment, he is required to use it within its intended design capacity." We conclude that MSHA's decision to apply section 57.14205 to this case was not arbitrary or capricious.

IV.

Stillwater contends that there is no evidence that the chute gate assembly was being used beyond its intended design capacity. Stillwater points out that the chute had been used for more than five years without incident, during which time more than 200,000 tons had passed through the gate; that the chute assembly was regularly inspected by workers and by MSHA and no changes or adverse conditions had occurred; and that the chute itself was designed to avoid allowing the full weight of the ore on the gate assembly. Only the last point is relevant to the ALJ's finding that "the design capacity of the eight bolts holding the chute gate assembly was exceeded by the forces applied to those bolts before they failed." Stillwater, 18 F.M.S.H.R.C. at 1297. We will uphold that finding if it is supported by substantial evidence. See Miller Mining Co. v. Federal Mine Safety & Health Review Comm'n, 713 F.2d 487, 490 (9th Cir.1983).

Evidence established the design capacity of each bolt. See Stillwater, 18 F.M.S.H.R.C. at 1296-97. There was considerable dispute, however, as to...