Consolidation Coal Co. v. Federal Mine Safety & Health Review Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 1998 Decided February 27, 1998

No. 97-1100

Consolidation Coal Company,

Petitioner

v.

Federal Mine Safety and Health Review Commission and

the Secretary of Labor,

Respondents

On Petition for Review of an Order of the

Federal Mine Safety and Health Review Commission

Elizabeth S. Chamberlin argued the cause and filed the
briefs for petitioner.

Yoora Kim, Attorney, U.S. Department of Labor, argued
the cause for respondents, with whom W. Christian Schu-
mann, Counsel, was on the brief. Norman M. Gleichman,
General Counsel, Mine Safety and Health Review Commis-
sion, entered an appearance.

Before: Rogers and Garland, Circuit Judges and Buckley,
Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Consolidation Coal Company peti-
tions the court for review of a decision of the Mine Safety and
Health Review Commission upholding a citation by the Mine
Safety and Health Administration (MSHA) for failure to
ensure that any of its miners could at all times see a warning
signal mounted on a methane monitor in one of its mines, in
contravention of 30 C.F.R. s 75.342(b)(2). Consolidation con-
cedes that its miners could not see the warning signal at all
times, but contends that because its mine automatically shut
down whenever the methane levels reached the point where
the warning signal was to be triggered, it was in compliance
with the regulation. Mindful of the substantial deference we
owe the Secretary in the interpretation of her own regula-
tions, we deny the petition for review.

I.

In the Federal Mine Safety and Health Act of 1977 (the
"Mine Act"), 30 U.S.C. ss 801 et seq. (1988), Congress direct-
ed the Secretary of Labor to "develop, promulgate, and revise
as may be appropriate, improved mandatory health or safety
standards for the protection of life and prevention of injuries
in coal ... mines." 30 U.S.C. s 811(a) (1988). Concerned
about the accumulation of methane gas and ignition sources
that could spark explosions, Congress directed the Secretary
to require that mine operators install monitors "for detecting
concentrations of methane" on "any electric face cutting
equipment," including "longwall face equipment." 30 U.S.C.
s 863(l). Pursuant to this congressional delegation, the Sec-
retary of Labor has promulgated regulations requiring the
installation of methane monitors on, inter alia, "all ... long-
wall face equipment." 30 C.F.R. s 75.342(a)(1) (1997). The
Secretary requires each of the methane monitors to include a
warning signal. In 1994, the regulations provided:

(1) When the methane concentration at any methane
monitor reaches 1.0 percent the monitor shall give a
warning signal.

(2) The warning signal device of the methane monitor
shall be visible to a person who can deenergize the
equipment on which the monitor is mounted.

30 C.F.R. s 75.342(b) (1994).1 The Secretary at that time
also required all longwall machinery to shut down when the
methane concentration in the mine reached 2.0%. 30 C.F.R.
s 75.342(c) (1994).2

Consolidation uses the longwall mining system to extract
coal from its Robinson Run No. 95 mine in West Virginia. A
longwall is created by digging two parallel, vertical tunnels
and a third horizontal connector tunnel. See International
Union, United Mine Workers v. FMSHA, 931 F.2d 908, 910
(D.C. Cir. 1991). The horizontal connector is the longwall;
its ceiling "exposes the face of rock from which coal will be
extracted by a shearer moving back and forth across the
face." United Mine Workers v. Dole, 870 F.2d 662, 675 (D.C.
Cir. 1989). The shearing process not only cuts coal, but
releases methane contained in the coal seams. Methane is an
odorless, colorless, tasteless, and highly explosive gas that
emanates naturally from the seams. S. Rep. No. 95-181, at
41 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3441.

Longwall face 2-D in Consolidation's West Virginia mine
contains two methane sensors, placed at the middle and one
end (the "tailgate") of the longwall. These sensors are
connected to a methane monitor located at the other end of

__________
1 The regulations do not differ in any relevant way today. See
30 C.F.R. s 75.342(b) (1997).

2 In 1994, 30 C.F.R. s 75.342(c) provided:

The methane monitor shall automatically deenergize the ma-
chine on which it is mounted when--

(1) The methane concentration at any methane monitor
reaches 2.0 percent; or

(2) The monitor is not operating properly.

the longwall (the "headgate"). The monitor contains a panel
with a yellow warning light that flashes when methane reach-
es a level of 1.0% of the atmosphere as well as a red "trip
light" that will activate at the same time. It also contains two
digital displays that provide readouts of the methane levels
along the longwall face. Whenever the warning lights are
triggered, the lighting on petitioner's longwall face goes out
and all the equipment electrically connected to the longwall
automatically deenergizes, with the exception of the methane
monitors and face telephone system.3 In this way, Consolida-
tion's mine automatically shuts down before federal regula-
tions require it to do so, at 1.0% methane, rather than at 2.0%
methane. See 30 C.F.R. s 75.342(c)(1) (1997).

After promulgating section 75.342(b), MSHA inspectors
notified Consolidation seven times that its mine did not
comply with the regulation. In 1993, MSHA sent two letters
to Consolidation discussing the regulation's visibility require-
ments. The company took no action in response to the letters
and warnings. On April 19, 1994, a MSHA inspector visited
Consolidation's West Virginia mine. The inspector could not
see the warning lights on the system's methane monitor from
the position of the "headgate operator," who was the miner
closest to the monitor. The monitor was located approxi-
mately thirty feet from the place where the headgate opera-
tor would shovel spilled coal onto the conveyor belt that took
the coal to the surface. Accordingly, the MSHA inspector
issued a citation for failure to comply with section
75.342(b)(2).

Consolidation contested the citation, and an Administrative
Law Judge vacated it. Although there was no doubt that the
headgate operator could not see the warning lights of the
methane monitor at all times, the judge concluded that the
deenergization of the longwall mining equipment and nearby
lighting when the methane level reached 1.0% constituted a
"visible signal to the headgate operator and other miners

__________
3 According to the parties' briefs, to a person standing where
the headgate operator was, automatic deenergization appears virtu-
ally identical to a power outage.

authorized to deenergize the longwall ... that methane may
have reached 1.0%," as required by section 75.342(b)(2). Con-
solidation Coal Co. v. Secretary of Labor, 16 FMSHRC 1241,
1246 (1994). The automatic shut down met this warning
function because

the headgate operator [then] must return to the master
control box to restart the power. When the operator
arrives at the control box after a methane shutdown, he
will be confronted by computer [sic] display that will
advise him in plain english [sic] that there has been a
"methane monitor fault."

Id. at 1243-44 (citations omitted).

The Secretary appealed to the Commission, arguing that
the "evidence was undisputed that the warning signal device
on the methane monitor was not visible to a person who could
deenergize the longwall," and that that fact was determinative
of noncompliance with section 75.342(b)(2). Consolidation
Coal Co. v. Secretary of Labor, 18 FMSHRC 1903, 1906
(1996). By a 2-1 vote, the Commission accepted the Secre-
tary's interpretation of the regulation and reinstated the
citation. Id. at 1906. Regarding Consolidation's automatic
deenergization at 1.0% methane, the Commission observed
that "[t]he Secretary's regulatory scheme requires human
intervention when methane levels reach 1 percent and auto-
matic deenergization of equipment at 2 percent methane.
Consol[idation] has, in effect, eliminated the requirement for
human intervention" in contravention of section 75.342(b)(2).
Id.

II.

Whether Consolidation's methane monitoring system com-
plies with section 75.342(b)(2) turns on the Secretary's analy-
sis of the regulation that was accepted by the Commission.
"We accord great deference to interpretations ... advanced
by the Secretary and accepted by the Commission." Energy
West Mining Co. v. FMSHRC, 40 F.3d 457, 462 (D.C. Cir.
1994). The court "must defer" to their interpretations "un-
less an 'alternative reading is compelled by the regulation's

plain language or by other indications of the Secretary's
intent at the time of the regulation's promulgation.' " Thom-
as Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)
(quoting Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)).
Likewise, if the administrative interpretation of the regula-
tion is "clearly erroneous," the court must reject it. See, e.g.,
Jim Walter Resources, Inc. v. Secretary of Labor, 103 F.3d
1020, 1024 (D.C. Cir. 1997).

Contrary to Consolidation's contention, we conclude, first,
that the Secretary's interpretation of section 75.342(b) does
not conflict with its plain meaning. Under the Secretary's
interpretation, the monitor warning signal at all times must
be visible to a miner who could respond if the light is
triggered by a concentration of 1.0% methane on the longwall
face. The interpretation requires not just a warning signal,
but a signal that is a "device of" the methane monitor and a
signal that is visible at all times to a miner who can react to
increasing methane levels and, if necessary, deenergize the
mining equipment. Through this interpretation, the Secre-
tary has appropriately construed section 75.342(b) to give
effect to all of its provisions. Cf. Otis Elevator Co. v.
Secretary of Labor, 921 F.2d 1285, 1289 (D.C. Cir. 1990). It
is an interpretation that requires a visible signal that would
be triggered whenever methane levels exceed 1.0%, regard-
less of what other safety measures may be activated by the
rise in methane. Consolidation does not have such a signal in
its West Virginia mine. Its methane warning device is the
longwall equipment. Thus, if Consolidation's equipment fails
to deenergize when methane reached 1.0%, its miners might
never know, because the methane monitor warning lights are
not always visible to the headgate operator.

Consolidation contends that its methane monitoring device
could also comport with section 75.342(b)(2). But this alter-
nate reading is not compelled by the regulation. See Thomas
Jefferson Univ., 512 U.S. at 512. Consolidation's attempt to
construe the deenergization of all of its mining machinery as
"the warning signal device of the methane monitor" is implau-
sible. Although such a large-scale response might effectively
warn the miners that something is wrong, be it a power

outage or an increased concentration of methane in the mine,
the longwall machinery can hardly be characterized as a
"device of" the monitor. The machinery operates to extract
coal, rather than to measure methane levels. It does not in
some way belong to the methane monitor, although such
belonging is what the term "of" suggests the regulation
means.4 Nor does the machinery serve the purposes of the
monitor, at least not exclusively, although that is often the
function filled by a "device." 5 Consolidation's approach thus
did not clearly comply with section 75.342(b), as it urges.

Nor did the Secretary intend to cover methane monitoring
devices like the one located in Consolidation's mine when she
promulgated section 75.342(b)(2). See Gardebring, 485 U.S.
at 430. As the Secretary explained in the Federal Register
upon promulgating section 75.342(b)(2),

paragraph (b)(2) requires the warning signal device of
the methane monitor to be visible to a person capable of
deenergizing the equipment on which the monitor is
mounted. This allows the operator of the face equip-
ment, or other person, to deenergize the equipment at
1.0 percent, if necessary.

57 Fed. Reg. 20,868, 20,891 (May 15, 1992). The Secretary's
explanation does not suggest any expansive intent to cover
visible warning signals not covered by the plain language of
the regulation. Consolidation offers no evidence that the

__________
4 The word "of" is "used as a function word to indicate the
material, parts, or elements composing something or the contents
held by something." Webster's Third New International Dictio-
nary Unabridged 1565 (1981). The longwall machinery is not an
element of the methane monitor.

5 The term "device" means "a piece of equipment or a mecha-
nism designed to serve a special purpose or perform a special
function." Webster's Third New International Dictionary Una-
bridged 618 (1981). The longwall machinery in this sense is not a
device meant to warn the headgate operator that methane levels
have reached 1.0%. Its special purpose or function is not to issue
methane level warnings. The machinery instead mines coal, and
was installed along the longwall for that purpose.

Secretary has ever adopted a different interpretation of the
regulation, or that she has contradicted her position on
appeal. See National Wildlife Fed'n v. Browner, 127 F.3d
1126, 1130 (D.C. Cir. 1997). Hence, there are no "other
indications of the Secretary's intent at the time of the regula-
tion's promulgation" to suggest that the interpretation taken
by the Secretary here marks a departure from her stated
prior understanding in enacting the regulation. See Thomas
Jefferson Univ., 512 U.S. at 512.

Consolidation, and the dissenting commissioner, see Consol-
idation Coal Co., 18 FMSHRC at 1908-10 (Jordan, Chair,
dissenting), suggest that the Secretary's construction is incon-
sistent with the Mine Act's purpose of increasing miner
safety, and therefore is unreasonable. See United States v.
Larionoff, 431 U.S. 864, 872 (1977); Energy West Mining Co.,
40 F.3d at 462; San Luis Obispo Mothers for Peace v. NRC,
789 F.2d 26, 36 (1986). Yet neither Consolidation nor the
dissent suggest that there can never be a need for a fail safe
mechanism. By interpreting the regulation to require a
visible warning signal, the Secretary has assured the exis-
tence of a check on rising methane levels in addition to the
check provided by the automatic shutdown process. If the
equipment fails for some reason to shut down at 1.0% meth-
ane, the Secretary's interpretation ensures that the headgate
operator will still be warned, after which he can make adjust-
ments to reduce methane levels, thereby avoiding a potential-
ly hazardous situation. This fail-safe, is, presumably, in the
operator's as well as the miners' interest. While there may
be contrary arguments based on technological advances or
the desirability of reducing labor costs, the Secretary's inter-
pretation gives weight to other benefits and in so doing her
interpretation cannot be deemed clearly erroneous. See Jim
Walter Resources, Inc., 103 F.3d at 1024.

Early deenergization of the longwall upon the detection of
1.0% methane may well have its own safety advantages. As
the Tenth Circuit has explained, "[a]utomatic deenergization
prevents the electrical equipment from sparking, which could
ignite the gas and result in an explosion." Ayala v. United
States, 49 F.3d 607, 609 (10th Cir. 1995). If so, then early

deenergization may be even safer than later deenergization.
It may be so safe that the human fail-safe required by the
Secretary's interpretation of the regulation proves to be
unnecessary. Yet a contest hearing before an administrative
law judge or appeal to this court are not the places to
evaluate alternatives to regulatory requirements. On appeal,
the Secretary's "plausible and sensible reading of [her] own
regulation would prevail even if the company had presented
an equally plausible alternative construction." Cold Spring
Granite Co. v. FMSHRC, 98 F.3d 1376, 1378 (D.C. Cir. 1996).
Consolidation had an option to ensure that its safety innova-
tion complied with the Secretary's regulatory scheme by
petitioning the Secretary for modification of the safety stan-
dard, but did not pursue it.6 The court has previously
recognized that the modification process usefully involves the
Secretary, who writes the regulations and to whom the court
must defer in interpreting them, in the process of tailoring
regulations to fit the particular requirements of mine opera-
tors. See Otis Elevator Co., 921 F.2d at 1293. The needs of
mine operators such as Consolidation can be met through this
normal regulatory process without stifling technological inno-
vation, much less circumventing the enforcement scheme that
Congress has authorized the Secretary to establish to carry
out the safety mandates of the Mine Act.

Accordingly, we deny the petition for review.

__________
6 The Mine Act provides:

Upon petition by the operator ... the Secretary may modify
the application of any mandatory safety standard to a coal or
other mine if the Secretary determines that an alternative
method of achieving the result of such standard exists which
will at all times guarantee no less than the same measure of
protection afforded the miners of such mine by such stan-
dard....

30 U.S.C. s 811(c).