Cyprus Emerald Resources Corp. v. Federal Mine Safety & Health Review Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 1999 Decided November 5, 1999

Nos. 98-1442 and 98-1548

Cyprus Emerald Resources Corporation,
Petitioner

v.

Federal Mine Safety and Health Review Commission
and Secretary of Labor,
Respondents

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

R. Henry Moore argued the cause for the petitioner.
Heather A. Wyman entered an appearance.

Colleen A. Geraghty, Attorney, United States Department
of Labor, argued the cause for the respondents. W. Chris-
tian Schumann, Counsel, United States Department of La-
bor, was on brief. Norman M. Gleichman, General Counsel,

Mine Safety and Health Review Commission, and Robin A.
Rosenbluth, Attorney, United States Department of Labor,
entered appearances.

Before: Ginsburg, Henderson and Randolph, Circuit
Judges.

Opinion for the court filed by Circuit Judge Henderson.

Concurring opinion filed by Circuit Judge Randolph.

Karen LeCraft Henderson, Circuit Judge: Section
104(d)(1) of the Federal Mine Safety and Health Act of 1977
(Act) provides in part:

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary [of Labor]
finds that there has been a violation of any mandatory
health or safety standard, and if he also finds that, while
the conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with
such mandatory health or safety standards, he shall
include such finding in any citation given to the operator
under this chapter.

30 U.S.C. s 814(d)(1). Designation of a violation as "signifi-
cant and substantial" under section 104(d)(1) can have signifi-
cant consequences to a mine operator. See 30 U.S.C.
s 814(d), (e).1 RAG Emerald Resources Corp. (Emerald),

__________
1 If the violation is found to be both "significant and substantial"
and "caused by an unwarrantable failure of [the] operator to comply
with [the] mandatory health or safety standards," section 104(d)(1)
requires a withdrawal order for a second mandatory standard
violation caused by an "unwarrantable failure to comply" within 90
days of the first. 30 U.S.C. s 814(d)(1). Section 104(d)(2) requires
a second withdrawal order for "violations similar to those that
resulted in the issuance of the [first] withdrawal order." Id.

formerly known as Cyprus Emerald Resources Corp., peti-
tions for review of a Federal Mine Safety Health Review
Commission (FMSHRC, Commission) decision upholding a
finding that Emerald's violation of 30 C.F.R. s 50.11(b)
(50.11(b)) was "significant and substantial." Secretary of
Labor v. Cyprus Emerald Resources Corp., 20 F.M.S.H.R.C.
790 (1998). Emerald had challenged the finding on the
ground that the plain language of section 104(d)(1) precludes
designation of the 50.11(b) violation as "significant and sub-
stantial" because 50.11(b) is not "a mandatory health or safety
standard" as section 104(d)(1) requires.2 The Commission
determined that the statute is ambiguous on the subject and
that the Commission could therefore reasonably construe the
statutory language to permit such a finding. The Commis-
sion was wrong. Section 104(d) unambiguously authorizes a
"significant and substantial" finding for violation only of a
mandatory health or safety standard. We therefore hold that
a "significant and substantial" finding is permissible in a
citation charging violation of a mandatory safety or health

__________
s 814(d)(2). Section 104(e)(1) requires withdrawal for "any viola-
tion of a mandatory health or safety standard which could signifi-
cantly and substantially contribute to the cause and effect of a coal
or other mine safety or health hazard" within 90 days after the
operator has been notified of "a pattern of violations of mandatory
health or safety standards in the coal or other mine which are of
such nature as could have significantly and substantially contributed
to the cause and effect of coal or other mine health or safety
hazards." Id. s 814(e)(1). Once a section 104(e)(1) withdrawal
order issues, section 104(e)(2) requires another such order for "any
violation of a mandatory health or safety standard which could
significantly and substantially contribute to the cause and effect of a
coal or other mine health or safety hazard." Id. s 814(e)(2).

2 Mandatory safety and health standards are promulgated in
accord with the procedure set out in section 101 of the Act, 30
U.S.C. s 811 (titled "Mandatory safety and health standards").
Both the Secretary and the Commission have acknowledged that
the regulation here, 30 C.F.R. s 50.11(b), was promulgated not
under section 101 but under section 508, 30 U.S.C. s 957, the Act's
general rulemaking provision. See Secretary's Brief at 17 n.6; 20
F.M.S.H.R.C. at 799 n.10.

standard only3 and, accordingly, grant Emerald's petition for
review.

I.

Emerald operates a coal mine and processing plant in
Greene County, Pennsylvania. Refuse from the plant is
ordinarily used to build up a nearby impoundment embank-
ment pursuant to a disposal plan approved by the Mine
Safety and Health Administration (FMSHA) in 1983. When
road or weather conditions prevent hauling refuse to the
impoundment, Emerald takes it to a "short-haul" area closer
to the processing plant. On April 2, 1993 FMSHA received a
complaint that part of a short-haul refuse pile had collapsed
and slipped into a "slurry pond."4 An FMSHA inspector
issued an "imminent danger" withdrawal order pursuant to
section 107(a) of the Act, 30 U.S.C. s 817(a),5 and upon a
subsequent inspection issued three citations charging "signifi-
cant and substantial" and "unwarrantable" violations of man-
datory safety standards (30 C.F.R. ss 77.215(f), 77.215(h) and
77.1608(b)) under section 104(d)(1) for improperly construct-

__________
3 This holding was foreshadowed by language in Secretary of
Labor v. FMSHRC, 111 F.3d 913 (D.C. Cir. 1997). See, e.g., 111
F.3d at 917 ("Congress has plainly excluded consideration of sur-
rounding conditions that do not violate health and safety stan-
dards."). In that case, however, we did not address the precise
question raised here. We held there that the plain language of
section 104(d)(1) precludes the Commission from basing a "signifi-
cant and substantial" finding on conditions that did not violate the
regulation under which the mine operator was cited. Because that
regulation was a mandatory standard, we did not consider whether
the statute permits a "significant and substantial" finding when the
violated regulation is not a mandatory standard.

4 According to the Commission, "slurry" is "the fine carbonaceous
discharge from a mine washery." 20 F.M.S.H.R.C. at 791 n.2.

5 Section 107(a) provides that, if an inspector "finds that an
imminent danger exists" at a mine, he may issue a withdrawal order
requiring the mine operator to evacuate the dangerous area until an
inspector determines the danger and the condition that caused it
have ceased. 30 U.S.C. s 817(a).

ing and using vehicles in the refuse pile. During his investi-
gation, the inspector learned of a previous refuse pile collapse
on December 27, 1992, for which the inspector also issued
citations alleging "significant and substantial" and "unwar-
rantable" violations of the same standards. In addition, he
issued citations for violating two additional regulations that
are not mandatory standards: 30 C.F.R. s 50.10, for failing to
notify FMSHA of the earlier collapse, and 30 U.S.C.
s 50.11(b), for failing to investigate the collapse. The inspec-
tor designated the 50.11(b) violation as "significant and sub-
stantial."

After conducting a hearing, the administrative law judge
issued a decision dated November 29, 1995 upholding each of
Emerald's citations. Secretary of Labor v. Cyprus Emerald
Resources Corp., 17 F.M.S.H.R.C. 2086 (1995). In the deci-
sion, the judge specifically concluded that violation of a
regulation such as 50.11(b), which is not a mandatory stan-
dard, may be designated "significant and substantial."6 Em-
erald petitioned the Commission to review the judge's deci-
sion.

In a decision dated August 24, 1998 the Commission, inter
alia, upheld the Secretary's designation of the 50.11(b) viola-
tion as "significant and substantial." The three-commissioner
majority concluded that section 104 was ambiguous on the
issue and could therefore be construed to permit "significant
and substantial" designation of such a violation.7 Emerald
petitioned for review of the Commission's decision.

__________
6 The judge also stated, however, that because the citation was
issued under section 104(a), and not under section 104(d), the
finding was "an allegation of gravity, not an assertion of jurisdiction
to apply the sanctions of [section] 104(d)," and declined to "reach
the issue whether the sanctions of s 104(d) apply to a violation of
Part 50." 17 F.M.S.H.R.C. at 2099.

7 Unlike the administrative law judge, see supra note 6, the
Commission majority undertook to "address the issue squarely
raised by the parties and consider whether the reference to manda-
tory health or safety standard in sections 104(d) and 104(e) pre-
cludes the Secretary from attaching the S&S designation to a

 II.

The outcome of this proceeding rests on the interpretation
of the single statutory sentence quoted above and repeated
here:

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that
there has been a violation of any mandatory health or
safety standard, and if he also finds that, while the
conditions created by such violation do not cause immi-
nent danger, such violation is of such nature as could
significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and
if he finds such violation to be caused by an unwarranta-
ble failure of such operator to comply with such mandato-
ry health or safety standards, he shall include such
finding in any citation given to the operator under this
chapter.

30 U.S.C. s 814(d)(1) (emphasis added). If in drafting this
provision " 'Congress has directly spoken to the precise ques-
tion at issue,' " we "must give effect to Congress's 'unambigu-
ously expressed intent.' " Secretary of Labor v. FMSHRC,
111 F.3d 913, 917 (D.C. Cir. 1997) (quoting Chevron USA,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842 (1984)). "If 'the statute is silent or ambiguous with
respect to the specific issue,' we ask whether the agency's
position rests on a 'permissible construction of the statute.' "
Id. (quoting Chevron, 467 U.S. at 843). We conclude, as
Emerald has maintained from the start, that the highlighted
portion of the quoted sentence plainly and unequivocally
conditions a "significant and substantial" finding (as well as
an "unwarrantable" one) upon an initial finding "that there
has been a violation of [a] mandatory health or safety stan-
dard." As the two dissenting Commissioners observed, "The
language of the Act is inescapable on this point." 20
F.M.S.H.R.C. at 826-27 n.1. We therefore hold that the

__________
violation of another regulatory requirement." 20 F.M.S.H.R.C. at
801.

statute does not authorize the FMSHA to designate as "sig-
nificant and substantial" a violation of a regulation such as
50.11(b) that is not a mandatory health or safety standard.

Despite the clarity of the relevant language, the Commis-
sion suggests a Chevron detour around the statute's plain
meaning. We find it impassable. The Commission asserts
that the quoted statutory language is somehow rendered
ambiguous by its reference to "any citation given to the
operator under [chapter 22 of Title 30]," that is to any citation
authorized by section 104(a). The Commission's reasoning, as
far as we can discern it, runs thus: (1) section 104(d)(1) refers
to a citation issued under section 104(a), which is the source
of the Commission's authority to issue all citations, including
those containing "significant and substantial" findings; (2)
section 104(a) treats all violations identically, whether of a
statutory provision, of a mandatory standard or of a regula-
tion that is not a standard; (3) therefore, it is ambiguous
whether the "significant and substantial" authority in section
104(d)(1) also applies equally to all violations. The Commis-
sion's third point simply does not follow from the other two;
and, besides, it ignores the unambiguous language that the
Congress used.

The Commission has also suggested we should ignore the
statute's plain meaning because without authority to make a
"significant and substantial" finding for violation of a regula-
tion that is not a mandatory standard, FMSHA will be unable
to enforce such regulations and the Congress's intent to
promote safety and prevent accidents will therefore be
thwarted. We find the Commission's concerns overblown.
We believe the Act provides adequate means to enforce such
regulations, including section 107(a) "imminent danger" with-
drawal orders, section 104(a) citations and section 110(a) civil
penalties, see 30 U.S.C. s 820(a). If the Secretary of Labor
finds a particular practice or condition so dangerous as to
require the sanctions provided in section 104(d) and (e), she
may promulgate an appropriate mandatory standard under
section 101, 30 U.S.C. s 811, the violation of which may
properly be found "significant and substantial." Given these
alternative measures, we do not believe this is one of the

" ' "rare cases [in which] the literal application of a statute
will produce a result demonstrably at odds with the intentions
of its drafters." ' " Davis County Solid Waste Management
v. United States EPA, 101 F.3d 1395, 1405 (D.C. Cir. 1996)
(quoting United States v. Ron Pair Enters., Inc., 489 U.S.
235, 242 (1989) (quoting Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 571 (1982))).

For the preceding reasons, we grant Emerald's petition for
review, reverse the Commission's 50.11(b) "significant and
substantial" determination and remand for appropriate ad-
ministrative action.

So ordered.

 Randolph, Circuit Judge, concurring: Because "the doc-
trine of stare decisis is of fundamental importance to the rule
of law," Welch v. Texas Dep't of Highways & Pub. Transp.,
483 U.S. 468, 494 (1987), our disposition of this case should
have begun with a citation to F.3d and there it should have
ended.

Today's majority opinion holds that under s 104(d)(1) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
s 814(d)(1), there may be "a 'significant and substantial'
finding for violation only of a mandatory health or safety
standard." Maj. op. at 3. Secretary of Labor v. FMSHRC,
111 F.3d 913, 917 (D.C. Cir. 1997), held the same:

As we read [s 104(d)(1)], the critical words are "such
violation is of such nature." A "significantly and sub-
stantially" finding may be made only after an authorized
representative has found a "violation" of mine safety and
health regulations.... By focusing the decisionmaker's
attention on "such violation" and its "nature," Congress
has plainly excluded consideration of surrounding condi-
tions that do not violate health and safety standards.

This was not dictum. It was a necessary ground for the
decision, leading us to reject the argument that in making an
"S & S" finding, the Secretary could consider violations of
something other than a mandatory health or safety standard.
As such, Secretary of Labor v. FMSHRC should have been
treated, by the Commission and by this court, as conclusive.