Secretary of Labor v. Doe Run Co.

Plain-English summary

Doe Run operates an underground lead, copper, and zinc mine where a 250-gallon pressurized water tank on a drill had not been inspected by a certified National Board inspector during roughly 20 years of use. MSHA cited 30 C.F.R. § 57.13015(a), and Doe Run argued that a 2004 National Board document exempted the vessel, that the rule was unclear, and that the mine had never been cited for the condition before. The Judge held that the regulation specifically incorporates the 1979 inspection code and cannot automatically change with later private publications. He also found that the tank met the ordinary meaning of a pressure vessel and that prior non-enforcement did not prevent MSHA from applying the rule. Summary decision was granted to the Secretary, the citation was affirmed with low negligence and unlikely injury findings, and a $151 penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.13015(a)
• Outcome: Citation No. 9767916 was affirmed as issued, and Doe Run was ordered to pay $151.
• Key point: A regulation's specific incorporation of the 1979 inspection code is fixed; later private guidance does not create a new exemption without rulemaking.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

721 19th ST. SUITE 443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5267

|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Complainant,
v.
DOE RUN CO, Respondent. |
|
|
CIVIL PENALTY PROCEEDING
Docket No. CENT 2025-0167 A.C. No.: 23-01800-614185
Mine: Viburnum #35 (Casteel Mine)
|

DECISION ON
MOTION FOR SUMMARY DECISION

Before: Judge Simonton

This case is before me upon the Secretary’s petition for assessment of civil penalty issued in accordance with the provisions of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (Mine Act) and 29 C.F.R. § 2700.20 et seq. Chief Administrative Law Judge Glynn F. Voisin assigned me this case on July 7, 2025. In dispute is one citation issued under section 104(a) of the Mine Act to Doe Run Co. (“Respondent” or “Doe Run”), as owner and operator of the Viburnum #35 (Casteel Mine) in Bixby, Missouri.

I. STATEMENT OF
THE CASE

The Secretary issued Doe Run
Citation No. 9767916 under section 104(a) of the Mine Act for an alleged violation
of health and safety standards. Specifically, Citation No[.
9767916 alleges a violation of 30 C.F.R. § 57.13015(a) for failing to have a 250-gallon
pressure vessel inspected by an inspector holding a valid national board
commission certification with a proposed penalty of $151.00.]

I set this matter to be heard on November 13–14, 2025. On September 10, 2025, the Secretary filed a Motion for Summary Decision. Thereafter, Doe Run filed an Unopposed Motion for Extension of Time to File Response to Secretary’s Motion for Summary Decision on September 12, 2025. Finding good cause, I granted Doe Run’s motion and set the due date for its response on October 3, 2025.

On October 3, 2025, Doe Run filed
its response to the Secretary’s Motion for Summary Decision. However, due to
the six-week federal government shutdown, the Secretary could not file its
reply brief and the hearing set for November 13–14, 2025, could not be held. During
the period of the shutdown, Doe Run filed a motion to postpone the hearing on
October 21, 2025. Upon conclusion of the government shutdown, I granted Doe
Run’s Motion to Postpone Hearing on November 14, 2025, with a new hearing to be
set in the future. Thereafter, on November 20, 2025, the Secretary filed its
Reply in Further Support of Summary Decision.1

II. SUMMARY DECISION
STANDARD

Commission Procedural Rule 67 sets forth the following grounds for granting summary decision:

A motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows:

(1) That there is no genuine issue as to any material fact; and

(2) That the moving party is entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67(b). The Commission has long recognized
that “‘[s]ummary decision is an extraordinary procedure,”’ and has analogized
it to Rule 56 of the Federal Rules of Civil Procedure, under which “the Supreme
Court has indicated that summary judgment is authorized only ‘upon proper
showings of the lack of a genuine, triable issue of material fact.”’ Hanson
Aggregates, 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining Co., 16 FMSHRC
1414, 1419 (July 1994)); Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986).

“Material facts” are those that
“might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Pursuant to Commission
Procedural Rule 67, “Material facts identified as not in issue by the moving
party shall be deemed admitted for the purposes of the motion unless
controverted by the statement in opposition.” 29 C.F.R. § 2700.67(d). The court
must evaluate the evidence “in the light most favorable to . . . the party
opposing the motion.” Hanson Aggregates, 29 FMSHRC at 9. Any inferences
drawn “from the underlying facts contained in [the] materials [supporting the
motion] must be viewed in the light most favorable to the party opposing the
motion.” Id.

A. No Dispute of Material Fact

The Secretary argues that Summary Decision
is appropriate in this matter because there are no disputes of material fact. Sec’y
Memorandum in Support at 1–2. Specifically, the Secretary argues it is
undisputed that Doe Run operated a pressure vessel that was not inspected which
is a plain and clear violation of 30 C.F.R. § 57.13015(a). Id. at 3,
8–10; Sec’y Reply at 1. Instead, “[t]he parties only dispute what version of
the inspection requirements apply, a pure legal issue.” Sec’y Memorandum in
Support at 1.

In response, Doe Run argues that Summary Decision is inappropriate in this matter because “there are material facts intertwined with the legal issues that remain in dispute.” Resp’t Response at 3–4. The material facts that Doe Run identifies are:

1. Whether, given the absence of previous notice by inspector activity and MSHA policy as well as the National Board exemption, whether Doe Run received adequate notice of the applicability of the standard.

2. Whether any MSHA inspector had ever previously indicated that the tank on the drill was subject to inspection by a certified inspector of the National Board of Boiler and Pressure Vessels.

3. Whether the 1979 Boiler Inspection Rules clearly apply to the tank on the drill at issue.

4. What is the effect of [the]subsequent document issued in 2004, NB-132 (Exhibit 3), that identified certain exemptions to the National Board’s inspection requirement.

5. Whether Missouri law concerning pressure vessels applies to the tank on the drill at issue.

Id. at
3.

After reviewing the entirety of the
parties’ filings, neither party disputes the factual circumstances underlying
Citation No. 9767916, namely that Doe Run’s 250-gallon pressure vessel had not been
previously inspected. Id. at 1–2, 5; Resp’t Amended Pre-Hr’g Statement
at 1–3; Sec’y Memorandum in Support at 3, 8–9, 10; Sec’y Reply at 1.

The only arguable fact that Doe Run
asserts is intertwined with a relevant legal issue is “[w]hether any MSHA
inspector had ever previously indicated that the tank on the drill was subject
to inspection by a certified inspector of the National Board of Boiler and
Pressure Vessels.” Resp’t Response at 4. However, even under the assumption
that an MSHA Inspector had never previously indicated that the cited tank was
subject to inspection, this fact is not material as, regardless of what
information may be presented from it, it is insufficient to support the
vacating of a citation. See Cactus Canyon Quarries, Inc. v. Sec’y of Lab.,
953 F.3d 790, 793 (D.C. Cir. 2020) (rejecting operator’s argument that an
inspector was not allowed to cite equipment that had never been cited for
decades because the “Secretary ‘cannot be estopped from enforcing its
regulations simply because it did not previously cite the mine operator’”); see
also Mainline Rock & Ballast, Inc. v. Sec’y of Lab., 693 F.3d 1181,
1187 (10th Cir. 2012) (rejecting an operator’s lack of adequate notice argument
because “‘those who deal with the Government are expected to know the law and
may not rely on the conduct of government agents contrary to the law’”) (citing
Emery Mining Corp. v. Sec'y of Labor, 744 F.2d 1411, 1416–1417 (10th
Cir. 1984)).

Accordingly, in reviewing each of Doe Run’s asserted issues, I determine that each question focuses solely on legal issues regarding regulatory interpretation, lack of adequate notice, and the applicability of state law rather than disputes of material fact. Therefore, I conclude that Summary Decision is appropriate in resolving this matter as the questions of law at issue may properly be decided based on the record before me.

III. STATEMENT OF
FACTS

Doe Run operates the Viburnum #35 (“Casteel Mine”)
underground mine in Bixby, Missouri, which produces lead, copper and zinc. Sec’y
Memorandum in Support at 2; Resp’t Response at 1; Resp’t Amended Pre-Hr’g
Statement at 1. The mining process in the Casteel Mine involves using drills to
create holes that are then loaded with explosives and detonated. Resp’t
Response at 1; Resp’t Amended Pre-Hr’g Statement at 1. These drills are
connected to a 250-gallon water tank that is under 125 psi of pressure. Id. The
water tank sends drilling water up the drill steel to the bit head, where it cools
the bit, clears cuttings from the borehole, and provides dust suppression. Resp’t
Response at 1–2; Resp’t Amended Pre-Hr’g Statement at 1.

On August 21, 2024, MSHA Inspector James
Santhuff traveled to the Casteel Mine to perform a standard quarterly
inspection of the mine and its equipment. Sec’y Memorandum in Support at 3;
Resp’t Response at 2; Resp’t Amended Pre-Hr’g Statement at 1–2. During
Santhuff’s inspection, he noticed a 250-gallon vessel mounted to the Tamrock
Solo SN# 0106 drill. Sec’y Memorandum in Support at 3; Ex. S–A. Based on
Santhuff’s training and experience, he recognized the vessel as an unfired
pressure vessel because it is a receiver tank that is pressurized by a motor. Id.
Santhuff then inspected the 250-gallon vessel, finding it to be in good
condition, and then spoke to Maintenance Manager Clay McNeil, inquiring if the
vessel had been inspected by a certified National Board of Boiler Pressure Vessel
inspector (“certified inspector”). Sec’y Memorandum in Support at 3; Ex. S–A; Resp’t
Response at 2; Resp’t Amended Pre-Hr’g Statement at 1–2. McNeil responded that the
pressure vessel had been in use at the mine for approximately 20 years and it
had not been inspected by a certified inspector because Doe Run believed it was
exempt from inspection. Id. Accordingly, Santhuff issued Citation No.
9767916 to Doe Run on August 21, 2024, in which he wrote the following:

The 250-gallon pressure vessel located on the Tamrock Solo SN# 0106 had not been inspected by an inspector holding a valid national board commission certification. The pressure vessel relief valve and tank appeared to be in good condition. The pressure vessel was available for use to miners at the time of the inspection. This condition exposes a miner to injuries related to the pressure vessel failing.

Ex. S–A. MSHA Inspector Santhuff also assessed the gravity
of the violation as “unlikely” to result in “lost workdays or restricted duty”
to one person and determined that Doe Run exhibited a “low” level of
negligence. Id.

After the issuance of Citation No. 9767916,
Maintenance Manager McNeil continued to discuss the citation with Santhuff and
was adamant that the unfired pressure vessel was exempt from inspection. Sec’y
Memorandum in Support at 3; Ex. S–A; Resp’t Response at 2; Resp’t Amended
Pre-Hr’g Statement at 2. McNeil then, in an attempt to have the citation
vacated, called Independent Inspector Tim Swanson from ARISE–a private
inspection organization–to come to the Casteel Mine. Resp’t Response at 2; Resp’t
Amended Pre-Hr’g Statement at 2. Once Swanson arrived, he informed Santhuff
that, in his opinion, the cited unfired pressure vessel was exempt from
inspection. Id. However, after contacting an official with the State of Missouri
Division of Fire Safety, Santhuff remained adamant that the cited vessel was
not exempt from inspection. Id. Santhuff then issued the abatement date for
Citation No. 9767916 for the following day, August 22, 2024. Sec’y Memorandum
in Support at 3; Ex. S–A. However, on August 27, 2025, Santhuff extended the
abatement date to September 6, 2024, as Doe Run was in the process of
scheduling an inspection of the pressure vessel with ARISE. Id. The
pressure vessel was then first inspected on September 6, 2024, by Independent Inspector
Swanson. Sec’y Memorandum in Support at 3; Ex. S–A; Resp’t Response at 2; Resp’t
Amended Pre-Hr’g Statement at 2.

IV. ISSUES

The Secretary argues that I should affirm Citation No. 9767916 as issued along with her proposed penalty of $151.00. Sec’y Memorandum in Support at 1; Sec’y Reply at 1.

Doe Run contests the penalty and argues that the citation should be vacated. Resp’t Response at 1. Neither party disputes the factual circumstances of Citation No. 9767916. Resp’t Response at 1–2, 5; Resp’t Amended Pre-Hr’g Statement at 1–3; Sec’y Memorandum in Support at 3, 8–9, 10; Sec’y Reply at 1.

Accordingly, I determine that the following issues are before me: (1) whether the issuance of the National Board’s 2004 NB-132 document alters the applicability of section 57.13015(a); (2) whether Doe Run had adequate notice of the applicability of section 57.13015(a) to the cited tank at issue; (3) whether Citation No. 9767916’s gravity determinations are properly designated; (4) whether Citation No. 9767916’s negligence is properly designated; and (5) whether the Secretary’s proposed penalty for this alleged violation is appropriate.

For the reasons set forth below, Citation
No. 9767916 is AFFIRMED as issued.

V. PRINCIPLES OF
LAW

To comport with due process, laws
must “give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that [the person] may act accordingly.” Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972); Lanham Coal Co., 13
FMSHRC 1341, 1343 (Sept. 1991). Under Commission precedent, if the language of
a regulation provides clear and unambiguous notice of its coverage and
requirements, no further notice is necessary. Bluestone Coal. Co., 19
FMSHRC 1025, 1029 (June 1997) (holding that when a regulatory provision is
clear and unambiguous, then the regulation provides adequate notice); Nolichuckey
Sand Co., 22 FMSHRC 1057, 1061 (Sept. 2000) (holding that if the regulation
is unambiguous, the regulation’s clear meaning is controlling and it “‘follows
that the standard provided the operator with adequate notice of its
requirements’”) (citing LaFarge Constr. Materials, 20 FMSHRC 1140, 1144
(Oct. 1998)).

Many Mine Act health and safety
standards are “simple and brief in order to be broadly adaptable to myriad
circumstances.” Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (Nov. 1981); see
also Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (Dec. 1982). Thus,
when a regulation does not provide unambiguous notice of its coverage, the
appropriate test for notice of an ambiguous regulation is “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.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). In determining
whether a party had adequate notice of regulatory requirements, a wide variety
of factors are considered, such as “the text of a regulation, its placement in
the overall regulatory scheme, its regulatory history, the consistency of the
agency's enforcement, and whether MSHA has published notices informing the
regulated community with ascertainable certainty of its interpretation of the
standard in question.” Lodestar Energy, Inc., 24 FMSHRC 689, 694–85
(July 2002).

VI. ANALYSIS AND
CONCLUSIONS OF LAW

A. What Does 30 C.F.R. § 57.13015(a)
Incorporate by Reference?

Doe Run was cited for a violation of 30 C.F.R. § 57.13015(a), which requires, in relevant part, that:

Compressed-air receivers and other unfired pressure vessels shall be inspected by inspectors holding a valid National Board Commission and in accordance with the applicable chapters of the National Board Inspection Code, a Manual for Boiler and Pressure Vessel Inspectors, 1979. This code is incorporated by reference and made a part of this standard.

30 C.F.R. § 57.13015(a).

Doe Run argues that “a citation
should not have been issued” because the National Board Inspection Code’s
(“NBIC”) 2004 NB-132 document exempted the cited vessel and therefore altered
the applicability of the 1979 version of “a Manual for Boiler and Pressure
Vessel Inspectors” referenced in section 57.13015(a). Resp’t Response at
3; Ex. R–3. Specifically,

Exemption #3 in Section E provides that pressure vessels operated completely full of water or a liquid of comparable hazard level are exempt, provided the vessel’s contents do not exceed 140°F in temperature or 200 psi in pressure. The water tanks installed on the drill meet these conditions, as they are routinely filled with water and do not exceed either the temperatures or pressure threshold.

Id. Accordingly, Doe Run argues “that the drill
pressure vessel in question qualifies for exemption under current National
Board guidelines.” Resp’t Response at 3.

In response, the Secretary argues
that section 57.13015(a) “explicitly incorporates the 1979 Code, and . . . [t]hus,
as a matter of law, the 1979 Code is the governing code and the only code
relevant to citations issued for violations of 30 C.F.R. § 57.13015.” Sec’y
Memorandum in Support at 6. Additionally, the Secretary argues that allowing
the issuance of the National Board’s 2004 NB-132 document to alter the scope of
section 57.13015(a) violates section 101(a)(9) of the Mine Act as it would
“reduce the protection afforded miners by an existing mandatory health or
safety standard.” Id. at 7.

In reviewing the parties’ filings and supporting documentation in the light most favorable to Doe Run, I find Doe Run’s argument unpersuasive for the following reasons.

1. Dynamic Incorporation
   Violates the Administrative Procedure Act

and 1 C.F.R. §
51.11(a)

Doe Run’s argument–that the applicability
of section 57.13015(a) is altered by the issuance of the National Board’s 2004 NB-132
document–suggests a dynamic incorporation in section 57.13015(a) in which “the
applicable chapters of the [1979 NBIC], a Manual for Boiler and Pressure Vessel
Inspectors” would automatically change whenever the National Board issues subsequent
recommendations affecting boiler and pressure vessels. However, in the context
of promulgated regulations, such dynamic incorporation is impermissible as it
violates the notice and comment requirements of the Administrative Procedure
Act (“APA”). City of Idaho Falls v. FERC, 629 F.3d 222, 227–28 (D.C. Cir.
2011) (holding that FERC violated the APA by attempting to adopt, without
additional notice and comment, updated Forest Service fee schedules, a previous
version of which was incorporated by reference in its regulations); see also
BHP Navajo Coal Co., 2015 WL 9684710, 8 (Dec. 2015) (ALJ) (rejecting
operator’s argument that the language “‘in effect at the time of the
installation’” means that section 77.516 automatically updates whenever a new
edition of the National Electric Code is published because “[s]uch dynamic
incorporation . . . violate[s] the notice and comment requirements of the
Administrative Procedure Act”).

Additionally, Doe Run’s position
would require that I ignore the requirements of 1 C.F.R. § 51.11(a).2
As Judge Bulluck correctly noted in BHP Navajo Coal Co., dynamic
incorporation goes against the “unambiguous instructions to agencies” in 1
C.F.R. § 51.11(a) regarding how to change a publication that is approved for
incorporation by reference. BHP Navajo Coal Co., 2015 WL 9684710 at 8. Although
not binding, I find Judge Bulluck’s reasoning persuasive.

2. Doe Run’s Argument
   Fails Under Reference Canon Interpretation

In the analogous context of interpreting
federal statutes, Doe Run’s argument equates to an interpretive tool commonly
known as reference canon interpretation. The Supreme Court in Brown v.
United States explained that reference canon interpretation “provides that
a statutory reference to a ‘general subject’ incorporates ‘the law on
that subject as it exists whenever a question under the statute arises.’ Brown
v. United States, 602 U.S. 101, 115–16 (2024) (citing Jam v. Int'l Fin.
Corp., 586 U.S. 199, 206 (2019)). However, “a reference ‘to another statute
by specific title or section number’—such as ACCA's reference to 21 U.S.C. §
802—‘in effect cuts and pastes the referenced statute as it existed when the
referring statute was enacted, without any subsequent amendments.’” Id.
(emphasis added). For example, the Court in Brown–in
interpreting statutory language–concluded that “it is hard to see the phrase
‘as defined in section 102 of the Controlled Substances Act’ as anything but a
specific reference.” Brown v. United States, 602 U.S. 101, 115–16
(2024); cf. Jam v. Int'l Fin. Corp., 586 U.S. 199, 209–211 (2019)
(holding that the language “‘same immunity from suit . . . as is enjoyed by
foreign governments’” is not a specific reference to a provision of another
statute, but instead a general reference to an external body of potentially
evolving law).

In applying the Supreme Court’s reasoning, I similarly find it hard to see section 57.13015(a)’s phrase “the applicable chapters of the [NBIC’s], a Manual for Boiler and Pressure Vessel Inspectors, 1979” as anything but a specific reference as it explicitly states the 1979 version. 30 C.F.R. § 57.13015(a).

3. 1979 Version is
   Consistently Maintained as Incorporated by Reference

The explicit mention of “1979” in
section 57.13015(a) has been consistently maintained as being incorporated by reference
by the Federal Register since its enactment.3 In 1980 and, again, in 1981, the Director of
the Federal Register approved the incorporation by reference of the “National
Board Inspection Code: 1979 edition” into section 57.13015. Approvals of
Incorporation by Reference, 45 Fed. Reg. 44090, 44098 (June 30, 1980); 46
Fed. Reg. 33980, 33991 (June 30, 1981). Moreover, since 2009, the Federal
Register has consistently published in its electronic “Incorporation by
Reference” page on the U.S. Government Printing Office's e-CFR website, as
having the “National Board Inspection Code, 1979” be incorporated by reference
into section 57.13015. See Electronic Code of Federal Regulations, Title
30--Mineral Resources, Material Approved for Incorporation by Reference,
U.S. Government Printing Office,
https://www.ecfr.gov/incorporation-by-reference/title-30/1-199 (last visited February
23, 2026).

4. Doe Run’s
   Interpretation Leads to Absurd Results

If the Court accepts Doe Run’s position and alters the applicability of section 57.13015(a) because of the issuance of the National Board’s 2004 NB-132 document, absurd results will follow. Specifically, Subpart L– which section 57.13015(a) is contained in–also contains section 57.13030(b) which not only similarly references that “gauges, devices and piping” of boilers must be in accordance with “a Manual for Boiler and Pressure Vessel Inspectors, 1979,” but even explicitly lists the specific applicable chapters and titles of the 1979 version. 30 C.F.R. § 57.13030(b).

Therefore, if the Court were to accept Doe Run’s interpretation and substitute the National Board’s 2004 NB-132 document into section 57.13015(a), then this results in the absurd outcome of having two regulations within the same subpart following different versions of the same cited standards. While I recognize that section 57.13030(b) is distinguishable from section 57.13015(a) as it addresses boilers rather than “compressed-air receivers and other unfired pressure vessels,” it would be illogical to find that such a distinction resolves the absurd result of having two regulations within the same subpart follow different versions of the same cited standards. 30 C.F.R. §§ 57.13015(a), 57.13030(b). Thus, section 57.13030(b) provides additional confirmation that the 1979 version of “a Manual for Boiler and Pressure Vessel Inspectors” is what is incorporated by reference in 57.13015(a).

5. Doe Run’s Interpretation
   Violates the No-Less Protection Rule

The Secretary argues that accepting Doe Run’s position–that the National Board’s 2004 NB-132 document alters the applicability of section 57.13015(a)–violates the no-less protection rule in section 101(a)(9) of the Mine Act. Sec’y Reply at 6; Sec’y Memorandum in Support at 7.

Section 101(a)(9) of the Mine Act
provides that “[n]o mandatory health or safety standard promulgated under
[Title 1] shall reduce the protection afforded miners by an existing mandatory
health or safety standard.” 30 U.S.C. § 811(a)(9). In addressing the
applicability of section 101(a)(9), the D.C. Circuit Court of Appeal in Dole
explained that Congress

placed an explicit constraint on the Secretary's authority to alter the level of protection afforded miners. . . . Thus when new standards replace existing mandatory health or safety standards it is not sufficient that the new standards demonstrate a reasonable accommodation of the competing goals of safety and efficient coal mine operation. The statute expressly mandates that no reductions in the level of safety below existing levels be permitted, regardless of the benefits accruing to improved efficiency.

UMWA v. Dole, 870 F.2d 662, 668 (D.C. Cir. 1989); see
also Brody Mining, LLC, 36 FMSHRC 2027, 2035 (Aug. 2014).

Accordingly, as section 57.13015(a) is a mandatory health or safety standard promulgated under section 101, it falls under the umbrella of the no-less protection rule in section 101(a)(9) of the Mine Act. Therefore, if I accept Doe Run’s interpretation and find that the issuance of the National Board’s 2004 NB-132 document exempts the cited equipment from the requirements of section 57.13015(a), then such a position would allow the regulation to reduce the protection afforded to miners from the National Board’s 1979 “Manual for Boiler and Pressure Vessel Inspectors” and thus violate section 101(a)(9) of the Mine Act.

6. 30 C.F.R. §
   57.13015(a) Incorporates the 1979 Standard

While I am sympathetic to Doe Run’s
situation, even in the light most favorable to it, I cannot ignore and
substitute the plain language of section 57.13015(a) that clearly states that
the applicable chapters of the “[NBIC], a Manual for Boiler and Pressure Vessel
Inspectors, 1979” is what is incorporated by reference. 30 C.F.R. §
57.13015(a) (emphasis added). Doing so would not only ignore the plain reading
of the regulation but would also violate section 101(a)(9) of the Mine Act and
lead to an absurd result. Additionally, it would be erroneous for me to ignore
the repeated explicit affirmation from the Director of the Federal Register, listing
the material approved for incorporation by reference for section 57.13015 as being
the “National Board Inspection Code, 1979.” Electronic Code of
Federal Regulations, Title 30--Mineral Resources, Material Approved for
Incorporation by Reference, U.S. Government Printing Office,
https://www.ecfr.gov/incorporation-by-reference/title-30/1-199 (last visited February
23, 2026) (emphasis added). Lastly, even in the light most favorable to Doe
Run, I cannot ignore that the dynamic incorporation that Doe Run suggests is
impermissible in either a regulatory or statutory framework as it would violate
the notice and comment requirements of the APA and require that I forego the
explicit requirements of 1 C.F.R. § 51.11(a).

In light of the discussion above, I determine that the issuance of the National Board’s 2004 NB-132 document does not alter the applicability of section 57.13015(a). Accordingly, I conclude that section 57.13015(a)’s specific reference to the 1979 version of “a Manual for Boiler and Pressure Vessel Inspectors” indicates that the materials incorporated by reference are solely the applicable chapters of the 1979 version.

B. Adequate Notice to Doe Run

In the alternative, Doe Run argues that it lacked adequate notice to the applicability of section 57.13015(a) to the cited vessel because: (1) the exempting of certain pressure vessels by the National Board’s 2004 NB-132 document called into question the applicability of section 57.13015(a) to the cited vessel; (2) section 57.13015(a) is ambiguous as it does not define pressure vessel; and (3) MSHA never cited the tank under section 57.13015(a) in the past 20 years and there are no MSHA policy documents that address this standard or issue. As a result, Doe Runs argues that section 57.13015(a) is impermissibly vague and therefore Citation No. 9767916 should be vacated. Resp’t Response at 5–9.

In response, the Secretary argues that “[n]othing about [section 57.13015(a)]’s language is ambiguous . . . [as] [t]he standard plainly and unambiguously points the reader to the 1979 Code.” Sec’y Reply at 7. Additionally, the Secretary argues that the fact that Doe Run had never received a citation for this violation before is irrelevant because “[t]here is no requirement that an operator be cited prior to the enforcement of a standard.” Sec’y Reply at 8.

In reviewing the parties’ filings and supporting documentation in the light most favorable to Doe Run, I find Doe Run’s arguments unpersuasive for the following reasons.

1. 30 C.F.R. §
   57.13015(a) is Unambiguous

At the outset, the Commission has
held that if the language of a regulation provides clear and unambiguous notice
of its coverage and requirements, no further notice is necessary. Bluestone
Coal. Co., 19 FMSHRC at 1028–29 (holding that when a regulatory provision
is clear and unambiguous, then the regulation provides adequate notice); Nolichuckey
Sand Co., 22 FMSHRC at 1061 (holding that when “‘the meaning of a standard
is clear based on its plain language, it follows that the standard provided the
operator with adequate notice of its requirements’”) (citing LaFarge Constr.
Materials, 20 FMSHRC at 1144).

A plain reading of section
57.13015(a) clearly states “the applicable chapters of the [NBIC], a Manual for
Boiler and Pressure Vessel Inspectors, 1979 . . . is incorporated
by reference and made a part of this standard.” 30 C.F.R. § 57.13015(a ) (emphasis
added). Thus, it is difficult to view such language as unclear or ambiguous as
to what version it refers to. Indeed, both the Commission and two ALJs reviewed
the identical regulatory language for the analogous surface mine standard–30
C.F.R. § 56.13015(a)–and held that the standard’s plain and unambiguous language
“provided [the operator] with adequate notice that an inspection by a person
with a valid Commission was required.”

2. Definition of
   Pressure Vessel

Doe Run argues that because both
the 1979 manual and section 57.13015(a) do not define “pressure vessel,” it is
unclear whether the cited vessel is considered a “pressure vessel” under
section 57.13015(a). Resp’t Response at 5–6. Therefore, Doe Run asserts that
“[i]n the circumstance where a vital term has not been defined [a] statute may
be considered impermissibly vague.” Resp’t Response at 6 (citing Stephenson
v. Davenport Community School District, 110 F. 3d 1303, 1308 (10th Cir.
1997). In response, the Secretary argues that the undisputed facts regarding
the cited equipment’s specifications clearly establish that it is a pressure
vessel. Sec’y Reply at 4–5.

It is undisputed that “[t]he term
“pressure vessel” is not defined in the Mine Act, the accompanying regulations,
or the 1979 Code.” Sec’y Reply at 4. However, as the Secretary correctly notes,
“[i]n the absence of a statutory definition, courts typically ‘construe a
statutory term in accordance with its ordinary or natural meaning.’” Sec’y
Reply at 4 (citing FDIC v. Meyer, 510 U.S. 471, 476 (1994)). Indeed, in
these instances the Commission has looked to common dictionary definitions to
determine a word’s ordinary or natural meaning. See Knight Hawk Coal, LLC,
46 FMSHRC 563, 567 n.5 (Aug. 2024) (looking to the dictionary to determine the
meaning and intent of terms not defined by the Mine Act).

Doe Run admits that the cited
equipment in Citation No. 9767916. is “a tank that holds 250 gallons of water
under 125 psi of pressure.”4
Resp’t Response at 1; Resp’t Amended Pre-Hr’g Statement at 1. Utilizing the
same approach as the Commission in Knight Hawk Coal, LLC, the term
“pressure vessel” is defined by Merriam-Webster as “a container (as a tank,
boiler, shell, cylinder) subjected in use to disruptive pressure.” Pressure
Vessel, Merriam-Webster,
https://www.merriam-webster.com/dictionary/pressure%20vessel (last visited February
23, 2026). Similarly, another dictionary defines “pressure vessel” as
“engineering a vessel designed for containing substances, reactions, etc, at
pressures above atmospheric pressure.” Pressure Vessel, Dictionary.com, https://www.dictionary.com/browse/pressure%20vessel
(last visited February 23, 2026).” Doe Run’s own admitted characteristics of
the cited equipment clearly places it under either dictionary definition as it
is a container or vessel–“tank”– that contains a substance–“250 gallons of
water”–that is held at above atmospheric pressure–“125 psi.”5
Resp’t Response at 1; Resp’t Amended Pre-Hr’g Statement at 1. Indeed, even the
National Board’s 2004 NB-132 document, which Doe Run argues is the applicable
standard for section 57.13015(a), similarly defines “pressure vessel” as “a
vessel in which the pressure is obtained from an external source, or by the
application of heat from an indirect source, or from a direct source other than
those boilers defined in item 14.” Resp’t Response at 3; Ex. R–3. Similarly,
Doe Run’s own admitted characteristics of the cited equipment fall into this
definition as well.

Accordingly, I determine that the tank on the Tamrock Drill is a pressure vessel given the term’s ordinary and natural meaning.

3. Estoppel is Contrary
   to Law

Doe Run argues that it lacked adequate notice as to the applicability of section 57.13015(a) because the fact that MSHA never cited the tank in the past 20 years may be evidence that previous MSHA inspectors had contrary interpretations. Resp’t Response at 5, 9. Additionally, Doe Run argues that the fact that there are no MSHA policy documents that address section 57.13015(a), and that an independent third party inspector indicated that the tank was “exempt,” is further indication that it lacked adequate notice. Resp’t Response at 5–6. In response, the Secretary argues that there is no requirement that an operator be cited prior to the enforcement of a standard and that such a belief is contrary to law. Sec’y Reply at 8.

Despite Doe Run’s assertions, courts
have consistently held that there is no requirement that an operator be cited
prior to the enforcement of a standard. See Cactus Canyon Quarries, Inc. 953
F.3d at 793 (rejecting operator’s argument that an inspector was not allowed to
cite equipment that had never been cited for decades because the “Secretary
‘cannot be estopped from enforcing its regulations simply because it did not
previously cite the mine operator’”); see also Mainline Rock & Ballast,
Inc. 693 F.3d at 1187 (rejecting an operator’s lack of adequate notice
argument because “those who deal with the Government are expected to know the
law and may not rely on the conduct of government agents contrary to the law”)
(citing Emery Mining Corp. 744 F.2d at 1416–1417). Moreover, there are “no
regulations requiring MSHA to police the mining industry to the extent of
discovering and preventing every mine operator from using every piece of
equipment which may violate MSHA regulations. Such a requirement would exceed
the capabilities of the agency and throw into question the feasibility of the
regulatory scheme.” Wallace v. U.S. Dep't of Lab., 717 F. Supp. 1466,
1468 (D. Wyo. 1989).

Additionally, Doe Run’s reliance on
an independent third party inspector–who indicated that the cited vessel was
exempt from inspection–is misplaced as the opinions of a third party have no
bearing on whether MSHA can cite a violation. In fact, courts have gone so far
as holding that an operator’s reliance on an MSHA inspector incorrectly informing
them that equipment did not need to be guarded was insufficient to prevent the
finding of a violation. Mainline Rock & Ballast, Inc. 693 F.3d at
1187 (rejecting an operator’s lack of adequate notice argument because “those
who deal with the Government are expected to know the law and may not rely on
the conduct of government agents contrary to the law”); see also Emery
Mining Corp. 744 F.2d at 1416–17 (holding that “MSHA officials . . . [have]
no authority to waive the [Mine] Act's requirements” and that an operator
assumes the risk that an MSHA official’s interpretation may be in error). Instead,
the court in Mainline emphasized that as long as the standard is
“sufficiently specific that a reasonably prudent person, familiar with the
conditions of the regulation are meant to address and the objectives the
regulations are meant to achieve, would have fair warning of what the
regulations would require,” then the due process notice requirements are met. Mainline
Rock & Ballast, Inc., 693 F.3d at 1187.

In light of the discussion above, I cannot ignore the overwhelming amount of precedent rejecting the same estoppel arguments that Doe Run puts forth in support of its claim that it lacked adequate notice. Accordingly, even though MSHA never cited the pressure vessel in the past 20 years, there are no MSHA policy documents that address this standard or issue, and an independent third party inspector indicated that the pressure vessel was “exempt,” this is still insufficient to support Doe Run’s claim that it lacked adequate notice.

4. Doe Run had Adequate
   Notice

Even in the light most favorable to Doe Run, I cannot ignore the plain and unambiguous language of section 57.13015(a) that “the applicable chapters of the [NBIC], a Manual for Boiler and Pressure Vessel Inspectors, 1979” is what is incorporated by reference. 30 C.F.R. § 57.13015(a). Additionally, Doe Run’s argument–that the regulation is impermissibly vague–still fails as the ordinary or natural meaning of “pressure vessel” provides adequate notice of its applicability. Lastly, it would be erroneous for me to ignore the overwhelming amount of precedent rejecting the estoppel arguments that Doe Run puts forth in support of its claim that it lacked adequate notice.

Accordingly, in light of the discussion above, I conclude that Doe Run had adequate notice as to the applicability of section 57.13015(a) to the cited pressure vessel in Citation No. 9767916.

C. Violation of 30 C.F.R. § 57.13015(a)

The requirements of section 57.13015(a)
are twofold. First, it requires that “[c]ompressed-air receivers and other
unfired pressure vessels . . . be inspected by inspectors holding a valid
National Board Commission [certification].” 30 C.F.R. § 57.13015(a). Second, it
requires that the inspection be conducted “in accordance with the applicable
chapters of the [NBIC], a Manual for Boiler and Pressure Vessel Inspectors,
1979.” Id.

Neither party disputes the factual
circumstances of Citation No. 9767916–namely, that Doe Run’s 250-gallon
pressure vessel was not inspected by an inspector holding a valid National
Board Commission certification. Resp’t Response at 1–2, 5; Resp’t Amended
Pre-Hr’g Statement at 1–3; Sec’y Memorandum in Support at 3, 8–9, 10; Sec’y
Reply at 1. Indeed, Doe Run admits that it “believed it was exempt from such
inspection” and does not dispute MSHA Inspector Santhuff’s claim that the “tank
had not been inspected for 20 years.” Resp’t Response at 2, 5. Therefore, based
on my determination that the issuance of the National Board’s 2004 NB-132 document
does not alter the applicability of section 57.13015(a), and that Doe Run had adequate
notice of the applicability of section 57.13015(a), I determine that Doe Run’s
failure to have the cited pressure vessel inspected by an inspector holding a
valid national board commission certification constitutes a violation of
section 57.13015(a). See discussion supra Part VI.A–B.

Therefore, as Doe Run violated the
first requirement of section 57.13015(a), I find that consideration of the
second requirement unnecessary.6
See Rain For Rent, 39 FMSHRC at 1452 (holding that the court need not
address arguments regarding the enforcement of state regulations as they relate
to the NBIC because the violation of section 56.130157
could be established solely on the MSHA Inspector’s findings that the cited
pressure vessel was not inspected by an individual with a National Board
Commission certification), aff’d, 40 FMSHRC 976, 978 (July 2018). Accordingly,
I conclude that the Secretary has established that Doe Run violated section 57.13015(a).

1. Gravity Designations
   for Citation No. 9767916

Doe Run does not dispute MSHA Inspector Santhuff’s gravity assessment for Citation No. 9767916. Resp’t Response at 1–10; Resp’t Amended Pre-Hr’g Statement at 1–3. Santhuff assessed the likelihood of injury or illness to be “unlikely,” because the “pressure vessel relief valve and tank appeared to be in good condition.” Sec’y Memorandum in Support at 12; Ex. S–A. Santhuff also determined the violation could cause an injury resulting in “lost workdays or restricted duty” to one person because if the “vessel deteriorates it could fail under pressure which could lead to injuries from flying shrapnel” such as “cuts, broken bones, and eye injuries” to “personnel in the surrounding work area, including the individual operating the Tamrock drill.” Sec’y Memorandum in Support at 4, 12; Ex. S–A. In light of the circumstances, I agree with Santhuff’s assessment and conclude that an incident involving the violative conditions was unlikely to cause an injury resulting in “lost workdays or restricted duty” to one person.

2. Negligence
   Designation for Citation No. 9767916

The Commission evaluates the degree
of negligence using “a traditional negligence analysis” that considers what
actions a reasonably prudent person familiar with the mining industry would
have taken under the same circumstances, the relevant facts, and the protective
purpose of the regulation. Am. Coal Co., 39 FMSHRC 8, 14 (Jan. 2017)
(quoting Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263–64
(D.C. Cir. 2016) (citation omitted)); Brody Mining, LLC, 37 FMSHRC 1687,
1702 (Aug. 2015).

Doe Run does not dispute MSHA Inspector Santhuff’s negligence assessment for Citation No. 9767916. Resp’t Response at 1–10; Resp’t Amended Pre-Hr’g Statement at 1–6. Santhuff designated Doe Run’s negligence as “low” because he “understood this was the first citation Doe Run had received for this type [of] vessel attached to mobile equipment.” Sec’y Memorandum in Support at 4, 12; Ex. S–A. Based on the totality of the evidence, I conclude Doe Run’s negligence to be low.

VII. PENALTY

The Commission is not bound by the
Secretary’s proposed penalty and reviews penalty assessments de novo. Mach
Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263–64 (D.C. Cir. 2016). Under
section 110(i) of the Mine Act, I must consider six criteria in assessing a
civil penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of the penalty relative to the size of the operator’s business;
(3) the operator’s negligence; (4) the penalty’s effect on the operator’s
ability to continue in business; (5) the violation’s gravity; and (6) the
demonstrated good faith of the operator in attempting to achieve rapid
compliance after notification of a violation. 30 U.S.C. § 820(i).

The Secretary proposes a penalty of
$151.00 for Citation No. 9767916. Ex. S–D. Doe Run is a large operator, operating
243,997 mine hours in the last four quarters of operation. Sec’y Memorandum in
Support at 4, 13. In the fifteen months preceding the issuance of this
citation, MSHA did not issue any violations of section 57.13015(a) to Doe Run’s
Viburnum #35 (Casteel Mine). Ex. S–D. Doe Run has stipulated that the proposed
penalty would not adversely affect its ability to continue in business. Resp’t
Amended Pre-Hr’g Statement at 5. I concluded that Doe Run exhibited a low level
of negligence. See discussion supra Part VI.C.2. Regarding
gravity, I concluded that the violation was unlikely to cause an injury
resulting in lost workdays or restricted duty to one person. See discussion
supra Part VI.C.1. Finally, Doe Run demonstrated good faith in abating
the citation by having the cited pressure vessel inspected by a certified
inspector. Sec’y Memorandum in Support at 13; Ex. S–A. In considering the
criteria set forth in section 110(i) of the Mine Act and all the relevant
facts, I hereby assess a penalty of $151.00.

VIII. ORDER

In light of the foregoing, the
Secretary’s Motion for Summary Decision is hereby GRANTED. Accordingly, it
is hereby ORDERED that Citation No. 9767916 is AFFIRMED as
issued.

Respondent is ORDERED to pay
the Secretary of Labor a civil penalty of $151.00 within 30 days of this
decision. 8

/s/
David P. Simonton

Administrative Law Judge

Distribution: (Electronic mail)

Elaine M. Smith, Esq., U.S. Department of Labor, Office of the Solicitor, MSHA

2300 Main Street, Suite 10100, Kansas City, MO 64108

Email; ([email protected])

R. Henry Moore, Esq., Fisher & Phillips, LLP

Six PPG Place, Suite 830, Pittsburgh, PA 15222

Email; ([email protected])

Arthur M. Wolfson, Esq., Fisher & Phillips, LLP

Six PPG Place, Suite 830, Pittsburgh, PA 15222

Email; ([email protected])

Patrick W. Dennison, Esq., Fisher & Phillips, LLP

Six PPG Place, Suite 830, Pittsburgh, PA 15222

Email; ([email protected])

/JPN

1 The Secretary’s exhibits, Doe Run’s exhibits, the
Secretary’s Memorandum in Support of Summary Decision, Doe Run’s Memorandum of
Points of Authorities in Response to Motion for Summary Decision, and the
Secretary’s Reply in Further Support of Summary Decision are abbreviated,
respectively, as: “Ex. S–#,” “Ex. R–#,” “Sec’y Memorandum in Support” “Resp’t Response,”
and “Sec’y Reply.”

2 1 C.F.R § 51.11(a) provides that “[a]n agency that
seeks approval for a change to a publication that is approved for incorporation
by reference must–(1) Publish notice of the change in the Federal Register and
amend the Code of Federal Regulations; (2) Ensure that a copy of the amendment
or revision is on file at the Office of the Federal Register; and (3) Notify
the Director of the Federal Register in writing that the change is being made.”

3 The practice of incorporation by reference began in
1966 to reduce the volume of material published in the Federal Register. See
5 U.S.C. § 552(a). Incorporation by reference “allows Federal agencies to
comply with the requirement to publish rules in the Federal Register and the
Code of Federal Regulations (CFR) by referring to material already published
elsewhere. The legal effect of incorporation by reference is that the material
is treated as if it were published in the Federal Register and CFR.” Electronic
Code of Federal Regulations, Incorporation by Reference, U.S. Government
Printing Office, https://www.ecfr.gov/incorporation-by-reference (last visited February
23, 2026).

4 Although the Secretary disputes the psi of the cited equipment
as being 150-160 psi, I interpret the facts of this matter in the light most
favorable to Doe Run. Accordingly, I find that the cited equipment in Citation
No. 9767916 is under 125 psi.

5 Atmospheric pressure at sea level is 14.7 psi Air Pressure,
NOAA, https://www.noaa.gov/jetstream/atmosphere/air-pressure,
(last visited February 23, 2026).

6 Both parties presented arguments and introduced
evidence regarding the applicability of Missouri state regulations to the cited
pressure vessel and how they relate to the NBIC. Resp’t Response at 4, 8–9;
Sec’y Memorandum in Support at 9–10. However, as this matter can be decided
solely on the safety standard cited by MSHA Inspector Santhuff, I do not
address the issue of whether Missouri state regulations are applicable to the
cited pressure vessel.

7 Section 56.13015 is the analogous surface mine
standard and contains the identical regulatory language as section 57.13015. See
30 C.F.R. §§ 56.13015, 57.13015.

8 Please pay penalties
electronically at Pay.Gov, a service of the U.S. Department of the Treasury, at
https://www.pay.gov/public/form/start/67564508.