At the same time as members of the Federal Mine Safety and Health Review Commission ruled against an Indiana coal producer, they suggested coal operators might consider making a fair notice argument during similar litigation in the future.

In this case, an administrative law judge held that Solar Sources, Inc. violated a Mine Safety and Health Administration standard at two of its surface mines in 2010 after an inspector cited Solar for not having a portable fire extinguisher on wheeled water pumps. The standard at 30 CFR 77.1109(c)(1) states that “mobile equipment” must be equipped with at least one portable fire extinguisher. Proposed fines totaled $492.

In his decision, the judge was persuaded by Part 56.2, a regulation pertaining only to the non-coal sector of mining defining mobile equipment, in part, as any wheeled vehicle capable of moving or being moved. Both contending parties agreed that Solar’s water pumps were not self- propelled, but the wheels allowed the equipment to be towed. The judge’s opinion raises the question why, if MSHA intended the non-coal regulation to apply universally, it was not incorporated into its coal standards.

Although the judge had indicated the language of the standard was clear, the commissioners, while affirming his decision to uphold the citations, ruled instead that the standard was ambiguous. They pointed out that the standard did not define “mobile equipment,” and that a separate standard pertaining to “auxiliary equipment” listed several examples, including rubber-tired “scrapers,” which also are capable of being moved from place to place.

“Therefore, the ability to move from one place to another does not plainly distinguish ‘mobile equipment’ from ‘auxiliary equipment,’” the commissioners wrote in their February 12 decision. http://www.fmshrc.gov/decisions/commission/COMMd_21 22015-LAKE%202010-774%2C%20902.pdf

The commissioners added that, although the mobile equipment standard was not clear, MSHA’s argument that wheeled water pumps constitute mobile equipment because they are capable of traversing roadways was reasonable and thus was entitled to deference. Nonetheless, the ambiguity opened the door for another argument. Noting that some equipment could be interpreted to be both “mobile equipment” and “auxiliary equipment” simultaneously, the commissioners suggested operators consider raising the argument in subsequent cases that MSHA had not given them fair notice of its enforcement policy regarding the two types of equipment.

“Therefore without in any way forecasting an outcome, we note that an operator might claim a lack of fair notice if it receives a citation under (c)(1) on a piece of demonstrably auxiliary equipment,” the Commission stated in a footnote.

Solar’s argument was that the water pumps were not directly involved in coal extraction; rather, they were used for dewatering and to fill water trucks used for dust control. Thus, the water pumps were “auxiliary equipment,” and that standard, at 30 CFR 77.1109(c)(3), only requires portable fire extinguishers on auxiliary equipment operated more than 600 feet from equipment mandated to contain the fire suppression equipment.