RAG Cumberland Resources LP v. Federal Mine Safety & Health Review Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2001 Decided December 7, 2001

No. 00-1438

RAG Cumberland Resources LP,
Petitioner

v.

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

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

Ralph Henry Moore II argued the cause and filed the
briefs for petitioner.

Harold P. Quinn, Jr. and Michael F. Duffy were on the
brief for amicus curiae National Mining Association.

 Robin A. Rosenbluth, Attorney, U.S. Department of Labor,
argued the cause for respondents. With her on the brief was
W. Christian Schumann, Counsel. John T. Sullivan, Attor-
ney, Federal Mine Safety and Health Review Commission,
entered an appearance.

Before: Garland, Circuit Judge, Silberman and Williams,*
Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Petitioner RAG Cumberland Re-
sources LP, the owner and operator of a coal mine, challenges
an order issued against it pursuant to s 104(d)(2) of the
Federal Mine Safety and Health Act of 1977 (the "Mine Act"),
30 U.S.C. s 814(d)(2). The Secretary of Labor issued the
order after a federal mine inspector discovered that, for the
second time in four months, the petitioner had violated a
mandatory mine safety standard through conduct constituting
more than ordinary negligence. RAG Cumberland does not
deny that it committed those violations, but asserts that the
Mine Act bars the Secretary from issuing the order because
its mine passed a "clean inspection" during the period be-
tween the two violations. An administrative law judge (ALJ)
for the Federal Mine Safety and Health Review Commission
(FMSHRC or the "Commission") agreed with the petitioner
and vacated the order. On discretionary review, the Commis-
sion set aside the ALJ's conclusion and reinstated the order.
For the reasons set forth below, we deny RAG Cumberland's
petition for review of the Commission's decision.

I

The Mine Act requires the Secretary of Labor to promul-
gate mandatory health and safety standards for the nation's
mines. Mine Act s 101(a), 30 U.S.C. s 811(a). To ensure
compliance with those standards, the Act requires representa-
tives of the Secretary to inspect each underground mine "in
its entirety" at least four times per year and to develop

__________
* Senior Circuit Judge Williams was in regular active service at
the time of oral argument.

guidelines for conducting additional inspections as appropri-
ate. Mine Act s 103(a), 30 U.S.C. s 813(a). The Mine
Safety and Health Administration (MSHA) conducts these
inspections on behalf of the Secretary.

Section 104 of the Mine Act, 30 U.S.C. s 814, directs the
Secretary to issue citations and orders to mine operators who
are not in compliance with the Act or the regulations promul-
gated thereunder. A MSHA inspector who discovers a viola-
tion of a mandatory health or safety standard must issue a
s 104(a) citation to the operator. The citation must describe
the violation with particularity and fix a reasonable time for
its abatement. 30 U.S.C. s 814(a).

Section 104(d) of the Act, 30 U.S.C. s 814(d), the principal
section at issue here, creates a "chain" of increasingly severe
sanctions for certain violations of mandatory standards. Nac-
co Mining Co. v. Sec'y of Labor, 9 F.M.S.H.R.C. 1541, 1545-
46 (1987). If an inspector finds a violation of a mandatory
standard that could "significantly and substantially" contrib-
ute to a mine safety or health hazard, and that was caused by
an "unwarrantable failure" of the operator to comply with the
standard,1 MSHA issues what is commonly referred to as a
s 104(d)(1) citation. 30 U.S.C. s 814(d)(1); see Sec'y of
Labor v. Cyprus Cumberland Res. Corp., 21 F.M.S.H.R.C.
722, 725 (1999) ("Commission Decision I"). If, during the
same inspection or any subsequent inspection within the next
ninety days, an inspector discovers another violation of a
mandatory standard caused by an unwarrantable failure to
comply, MSHA issues a s 104(d)(1) withdrawal order--also
known as a "predicate order." See Sec'y of Labor v. Wyo-
ming Fuel Co., 16 F.M.S.H.R.C. 1618, 1622 n.7 (1994).2 A
withdrawal order requires the mine operator to remove all

__________
1 An unwarrantable failure occurs when the violation is caused
by "aggravated conduct constituting more than ordinary negli-
gence." Emery Mining Corp. v. Sec'y of Labor, 9 F.M.S.H.R.C.
1997, 2004 (1987).

2 "Unlike section 104(d)(1) citations, section 104(d)(1) withdrawal
orders require no 'significantly and substantially' findings." Sec'y
of Labor v. FMSHRC, 111 F.3d 913, 919 (D.C. Cir. 1997).

persons (except those needed to correct the problem) from
the area until the violation has been corrected. 30 U.S.C.
s 814(d)(1). When such an order is issued, production in the
affected area of the mine must cease.

Once a s 104(d)(1) withdrawal order has been issued, if
"upon any subsequent inspection" an inspector finds a viola-
tion caused by an unwarrantable failure, the inspector issues
a s 104(d)(2) withdrawal order.3 The chain of sanctions
continues, with each new unwarrantable violation generating
a s 104(d)(2) withdrawal order "until such time as an inspec-
tion of such mine discloses no similar violations." 30 U.S.C.
s 814(d)(2) (emphasis added); see United Mine Workers v.
FMSHRC, 768 F.2d 1477, 1478-79 (D.C. Cir. 1985); Nacco
Mining Co., 9 F.M.S.H.R.C. at 1545.4 The "inspection of

__________
3 Unlike a s 104(d)(1) withdrawal order, which may only be
issued within ninety days of its predicate s 104(d)(1) citation, a
s 104(d)(2) withdrawal order may be issued within any period after
its predicate s 104(d)(1) withdrawal order.

4 Section 104(d)(2) states:

If a withdrawal order with respect to any area in a ... mine
has been issued pursuant to [s 104(d)(1)], a withdrawal order
shall promptly be issued by an [inspector] who finds upon any
subsequent inspection the existence in such mine of violations
similar to those that resulted in the issuance of the withdrawal
order under [s 104(d)(1)] until such time as an inspection of
such mine discloses no similar violations. Following an inspec-
tion of such mine which discloses no similar violations, the
provisions of [s 104(d)(1)] shall again be applicable to that
mine.

30 U.S.C. s 814(d)(2). As used in s 104(d)(2), the term "similar
violations" means other violations caused by unwarrantable failures;
they need not be substantively similar to the violation upon which
the original order was based. See S. Rep. No. 95-181, at 32 (1977);
Greenwich Collieries v. Sec'y of Labor, 12 F.M.S.H.R.C. 940, 945
(1990); see also Int'l Union, United Mine Workers v. Kleppe, 532
F.2d 1403, 1406-07 (D.C. Cir. 1976). In addition, a s 104(d)(2)
withdrawal order, like a s 104(d)(1) withdrawal order, "may issue
on the basis of 'unwarrantable failure' findings alone," without a

such mine" necessary to end the sanctions chain is known as a
"clean inspection." See Sec'y of Labor v. Kitt Energy Corp., 6
F.M.S.H.R.C. 1596, 1596 (1984). To sustain a s 104(d)(2)
withdrawal order, the Secretary has the burden of proving,
by a preponderance of the evidence, that a clean inspection
has not occurred since the issuance of the previous withdraw-
al order. Id. at 1600.

II

RAG Cumberland owns and operates the Cumberland
Mine, an underground bituminous coal mine near Waynes-
burg, Pennsylvania.5 Each year, MSHA conducts four regu-
lar health and safety inspections of the entire Cumberland
Mine. The inspections are conducted quarterly by two
MSHA inspectors who are assigned to the mine on a full-time
basis. An inspection usually takes a full quarter to complete.
Other inspectors from MSHA's Waynesburg field office peri-
odically visit the mine to assist the two full-time inspectors.
See Commission Decision I, 21 F.M.S.H.R.C. at 723.

On June 18, 1997, during a regular quarterly inspection, a
MSHA inspector issued the Cumberland Mine a s 104(d)(1)
withdrawal order for a significant and substantial and unwar-
rantable violation of a mandatory safety standard. Id. On
September 24, 1997, during the next quarterly inspection, the
mine was issued a s 104(a) citation for a violation of MSHA's
mandatory roof control standard. In response, the mine
installed a hydraulic jack to support the roof, which tempo-
rarily abated the violation, and placed two warning signs in
the area. The next day, however, the inspector discovered
that the jack and signs had been removed and that miners

__________
finding that the violation was significant and substantial. Sec'y of
Labor v. FMSHRC, 111 F.3d at 919.

5 At the time of the events in question, the mine was operated
by Cyprus Cumberland Resources Corporation. RAG Cumberland
is the new parent company of Cyprus and is the petitioner here.
For purposes of clarity, in this opinion we will refer to RAG
Cumberland as the entity against which the Secretary's enforce-
ment action was taken.

had been working beneath the unsupported roof. This, he
determined, constituted a significant and substantial and un-
warrantable violation of the roof control standard. In light of
the predicate June 18 order, MSHA issued RAG Cumberland
a s 104(d)(2) withdrawal order on September 25. Id. at 724.

RAG Cumberland filed a challenge to the September 25
order with FMSHRC. The company stipulated to the validi-
ty of the June 18 predicate order, and further stipulated both
that it had violated the roof control standard on September 25
and that the violation was significant and substantial and had
been caused by an unwarrantable failure. The sole basis for
RAG Cumberland's challenge was its contention that a
s 104(d)(2) withdrawal order was unjustified because MSHA
had conducted a clean inspection of the Cumberland Mine
during the period between June 18 and September 25. The
Secretary, in turn, stipulated that MSHA had, in fact, thor-
oughly inspected all areas of the mine between those dates--
with the exception of the 60 West Mains haulage, a 4200-foot
passage that serves as the primary route into and out of the
mine. Thus, the only question affecting the validity of the
September 25 order was whether MSHA had conducted a
clean inspection of the 60 West Mains haulage itself between
June 18 and September 25. Id.

RAG Cumberland's challenge to MSHA's September 25
withdrawal order made two complete trips through the
FMSHRC adjudicatory process before arriving at this court.
The challenge was initially heard before an ALJ, who con-
cluded that MSHA had conducted an intervening clean in-
spection of the haulage and therefore downgraded the
s 104(d)(2) withdrawal order to a s 104(d)(1) citation. Cy-
prus Cumberland Res. Corp. v. Sec'y of Labor, 20
F.M.S.H.R.C. 285, 295 (1998) ("ALJ Decision I"). The ALJ
based his conclusion on the Secretary's stipulation that, dur-
ing the relevant period, MSHA inspectors traveled through
the 60 West Mains haulage "many times," in both open and
closed vehicles, en route to conduct inspections in other areas
of the mine. Id. at 294. The ALJ disagreed with the
Secretary's view that such travel was insufficient to constitute
a clean "inspection of such mine" within the meaning of

s 104(d)(2). The ALJ did not dispute the reasonableness of
the Secretary's statutory interpretation: that to constitute an
"inspection," inspectors must leave their vehicles and conduct
a detailed examination for non-obvious hazards. Id. at 289.
Rather, he simply "decline[d] to defer to the Secretary's
interpretation," id., holding instead that the inspectors' "op-
portunity to observe" the mine's conditions was enough to
represent a clean inspection under the Act, id. at 294.

On discretionary review, the Commission vacated the ALJ's
decision. It concluded that the ALJ had erred in relying on
the inspectors' repeated travel through the haulage, rather
than examining evidence of actual inspection activity. Com-
mission Decision I, 21 F.M.S.H.R.C. at 727. The Commis-
sion explained that under controlling precedent, the physical
presence of an inspector in each area of the mine is insuffi-
cient to constitute a clean inspection. To the contrary, such
an inspection requires inspectors to conduct a "thorough and
complete" examination for all potential hazards, not only
those that are visible or obvious. Id. at 726. Since RAG
Cumberland's own safety manager had conceded "that an
inspector would have to stop and exit the vehicle in order to
inspect a number of conditions," id. at 727 n.6 (citing ALJ
Hr'g Tr. at 772, 818, 827-29, 844-48),6 the Commission reject-
ed the ALJ's premise that the inspectors' vehicular travel
constituted a clean inspection of the 60 West Mains haulage.
It therefore remanded the case to the ALJ to determine
whether the Secretary had met her burden of establishing the
absence of a clean inspection, "by examining evidence regard-
ing any inspection activity in the haulage area during the time
period in question." Id. at 728. The Commission specifically
instructed the ALJ to examine a log, maintained by the mine
operator, that depicted all inspection activity in the mine. Id.

On remand, the ALJ again converted the s 104(d)(2) with-
drawal order to a s 104(d)(1) citation. Cyprus Cumberland
Res. Corp. v. Sec'y of Labor, 21 F.M.S.H.R.C. 1112, 1118

__________
6 Those included "electrical installations, fire fighting equip-
ment, roof and rib conditions, ventilation, and the condition of the
track." Id.

(1999) ("ALJ Decision II"). The ALJ noted that, during
their many trips through the haulage, the inspectors had "an
opportunity, if not an obligation, to repeatedly observe the
roof, rib and track conditions," and that they "could have left
their battery operated vehicles at any time if they had
observed any hazardous or violative condition." Id. at 1113.
"The Secretary cannot prevail," the ALJ said, "simply by
establishing that inspectors had not exited their battery
operated vehicles to inspect electrical boxes located in the 60
Mains." Id. at 1115. Rather, the ALJ held, the decisive
question was whether a "reasonable person ... would con-
clude" that the inspectors' observations during their trips
through the haulage "constitute[d] an adequate inspection for
hazardous conditions." Id. at 1116. Applying this "reason-
able person test," the ALJ held that it would be "unreason-
able to conclude" that the inspectors had not conducted a
clean inspection. Id.

Once again, the Commission reversed. Sec'y of Labor v.
RAG Cumberland Res. Corp., 22 F.M.S.H.R.C. 1066 (2000)
("Commission Decision II"). The Commission held that an
actual, "thorough and complete" inspection--not the mere
opportunity to observe visible hazards--is required to sever
the chain of sanctions. Id. at 1072. Applying that standard
to the facts of record, the Commission reinstated the Secre-
tary's s 104(d)(2) withdrawal order. Id.

III

The Federal Mine Safety and Health Review Commission
adjudicates disputes arising under the Mine Act, including
challenges by mine operators to citations and orders issued
by the Secretary of Labor pursuant to s 104. See Mine Act
s 113, 30 U.S.C. s 823. Under the statutory scheme, the
Commission is required to accord deference to " 'the Secre-
tary's interpretations of the law and regulations.' " Sec'y of
Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1435 (D.C.
Cir. 1989) (quoting S. Rep. No. 95-181, at 49 (1977)). And
while it may reverse a decision by an ALJ for legal error, the
Commission must uphold an ALJ's factual determinations if

they are supported by substantial evidence. See Donovan ex
rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 90-91 (D.C.
Cir. 1983) (interpreting 30 U.S.C. s 823(d)(2)).7

Any person adversely affected by a Commission order may
petition to this court for review. Mine Act s 106(a), 30
U.S.C. s 816(a). Like the Commission, we are required to
accord deference to the Secretary's reasonable interpreta-
tions of the language of the Mine Act. See Cannelton, 867
F.2d at 1435 (citing Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984)).8 When the Secretary and
the Commission divide, we must defer to the Secretary. See
id.; see also Sec'y of Labor v. FMSHRC, 111 F.3d 913, 920
(D.C. Cir. 1997); cf. Martin v. Occupational Safety & Health
Review Comm'n, 499 U.S. 144, 152-53 (1991) (holding that,
under a similar split-enforcement scheme, court must defer to
the interpretation of the Secretary of Labor rather than to
that of OSHRC).9 Where, as here, the Secretary and the
Commission agree, there is no question but that we must
accord deference to their joint view. See Energy West Min-
ing Co. v. FMSHRC, 111 F.3d 900, 903 (D.C. Cir. 1997);
Emerald Mines Co. v. FMSHRC, 863 F.2d 51, 54 (D.C. Cir.
1988). Finally, we are required to uphold the Commission's

__________
7 In this regard, administrative review under the Mine Act is
unlike that under the Administrative Procedure Act, 5 U.S.C.
s 557(b), which ordinarily "empowers agencies to make independent
factual findings on the basis of a record developed by an ALJ."
Donovan, 709 F.2d at 91.

8 Of course, "the Secretary, the Commission, and this court ...
'must give effect to the unambiguously expressed intent of Con-
gress.' " Cannelton, 867 F.2d at 1435 (citing Chevron, 467 U.S. at
843). But the Mine Act is silent with respect to what constitutes
the "inspection" required to break the chain of s 104(d)(2) sanc-
tions.

9 Cf. also Martin, 499 U.S. at 157 (holding that "the Secretary's
litigating position before [OSHRC] is as much an exercise of
delegated lawmaking powers as is the Secretary's promulgation of a
workplace health and safety standard," and that "the Secretary's
interpretation is not undeserving of deference merely because the
Secretary advances it for the first time in an administrative adjudi-
cation").

factual findings "if supported by substantial evidence on the
record considered as a whole." Mine Act s 106(a)(1), 30
U.S.C. s 816(a)(1).10

RAG Cumberland contends that, in reversing the ALJ's
conclusion regarding the occurrence of a clean inspection, the
Commission exceeded its statutorily prescribed standard of
review. The Commission did this, petitioner asserts, by
reweighing the evidence before the ALJ rather than uphold-
ing factual determinations that were supported by substantial
evidence. See Donovan, 709 F.2d at 92 (holding that, under
the Mine Act, the Commission may not "substitute a compet-
ing view of the facts for the view the ALJ reasonably
reached"). We disagree. The Commission did not reverse
the ALJ because it weighed the record evidence differently
than he did. Instead, the Commission reversed because the
ALJ applied a legally erroneous interpretation of the clean
inspection standard to the record facts, and because it was
clear that under the correct standard those facts established
the absence of a clean inspection. We uphold the Commis-
sion's decision on both counts.

__________
10 As discussed above, although it may reverse an ALJ's deci-
sion for legal error, the Commission must uphold an ALJ's factual
determinations if they are supported by substantial evidence. Don-
ovan, 709 F.2d at 90. Because in this case we conclude that the
Commission properly vacated the ALJ's decision for legal error, we
need not consider the precise standard of review we would apply to
a Commission decision reversing an ALJ's findings of fact. Cf.
Burns v. Director, Office of Workers' Compensation Programs, 41
F.3d 1555, 1562 (D.C. Cir. 1994) (holding that, on a petition for
review of a decision by the Benefits Review Board under the split-
enforcement scheme of the Longshore and Harbor Workers' Com-
pensation Act, rather than defer to the Board the court must
"conduct an independent review of the record to determine if the
ALJ's findings are supported by substantial evidence") (internal
quotation marks omitted); id. at 1565 (Silberman, J., concurring)
(observing the anomaly of a court independently reviewing the
record, but noting uncertainty as to whether "any different scope of
review[ ] is even theoretically available to a court of appeals under
this statute").

 A

In its review of the ALJ's initial decision, the Commission
determined that he misapplied the law by holding that the
inspectors' repeated travel through the 60 West Mains haul-
age was sufficient to establish a clean inspection. The Com-
mission remanded, instructing the ALJ to consider the record
evidence regarding actual inspection activity in the haulage,
including RAG Cumberland's inspection log, in order to deter-
mine whether the Secretary had met her burden of proving
that a thorough and complete inspection had not occurred.
Commission Decision I, 21 F.M.S.H.R.C. at 727-28. In
reviewing the ALJ's decision on remand, the Commission
determined that he failed to comply with its instructions to
consider "the record evidence regarding inspections in the
haulage." Commission Decision II, 22 F.M.S.H.R.C. at 1071.
"Rather," the Commission said, "the judge applied the 'rea-
sonable person test' " to determine whether a clean inspection
had occurred. Id.

The ALJ described the "reasonable person test" he thought
applicable to this case as follows:

The question is whether a reasonable person, familiar
with the deterrent purposes of section 104(d)(2) with
respect to unwarrantable failure, would conclude that the
numerous mine inspectors' observations (during approxi-
mately 135 round trips) of the 60 West Mains haulage
ribs, roof, and track, constitute an adequate inspec-
tion....

ALJ Decision II, 21 F.M.S.H.R.C. at 1116. The Commission
rightly rejected that test as legally erroneous. Congress did
not delegate the authority to determine the meaning of a
statutory term like "inspection" to a theoretical reasonable
person. To the contrary, as we noted above, Congress in-
tended the Secretary of Labor to interpret the terms of the
Mine Act. See Cannelton, 867 F.2d at 1435 (citing S. Rep. No.
95-181, at 49). And ALJs, the Commission, and this court are
all bound to defer to the Secretary's interpretations--provid-
ed, of course, that they are reasonable. Id.

 The Commission also rejected the definition of a clean
inspection that the ALJ apparently thought a reasonable
person would adopt. The ALJ noted that the "inspectors
could have left their vehicles at any time if they had observed
any conditions that caused concern," suggesting that the
opportunity to examine visible hazards was sufficient even if
there was no evidence that the inspectors had done so. ALJ
Decision II, 21 F.M.S.H.R.C. at 1113 (emphasis added).
Moreover, the ALJ held that the Secretary "cannot prevail
simply by establishing that inspectors had not exited their
battery operated vehicles to inspect electrical boxes located in
the 60 Mains," suggesting that the inspection of non-visible
hazards (e.g., ones that could only be determined by opening
electrical boxes) was not required. Id. at 1115 (emphasis
added).

The Commission rejected these views, agreeing with the
Secretary that a clean inspection requires a "thorough and
complete" inspection for violations of any kind, "obvious or
otherwise." See Commission Decision II, 22 F.M.S.H.R.C.
at 1072; id. at 1069 (stating the Secretary's position); see
also Commission Decision I, 21 F.M.S.H.R.C. at 726 (citing
Eastern Associated Coal Corp., 3 I.B.M.A. 331, 357-58, 81
Interior Dec. 567, 579-80 (Bd. Mine Op. App. 1974) (holding
that, under the same language in the predecessor to the Mine
Act, a clean inspection required a "thorough examination of
conditions and practices throughout a mine")). The Commis-
sion also agreed with the Secretary that the opportunity to
conduct such an inspection is not alone sufficient. And the
Commission further emphasized that "mere travel through an
area of the mine, without evidence of a thorough and com-
plete inspection, does not suffice to support a finding that a
clean inspection occurred." Commission Decision II, 22
F.M.S.H.R.C. at 1073. Accordingly, the Commission held,
evidence of actual "inspection activity in the haulage area
during the relevant time period must be considered" in order
to decide the instant case. Id.

The Commission's ruling constitutes a reasonable interpre-
tation of the statutory phrase "inspection of such mine" in
s 104(d)(2), and hence one to which we must defer. Indeed,

we would be hard pressed to decide otherwise, since the
Commission expressly rested its interpretation on a prior
decision of this court. See id. at 1072-74 (citing United Mine
Workers v. FMSHRC, 768 F.2d 1477 (D.C. Cir. 1985)). As
the Commission accurately observed, in United Mine Work-
ers we rejected the notion that "an inspector's physical pres-
ence in each area of the mine--regardless of the object of the
inspection or the hazards actually examined for in each
particular area--qualifies as an intervening 'clean' inspec-
tion." 768 F.2d at 1479. "The only rational reading of the
intervening 'clean' inspection requirement," we held, "is that
all areas of a mine must be inspected for all hazards," both
the "unseen" and the "visible." Id. at 1480. In fact, contrary
to the very example used by the ALJ here, we suggested that
in order to conduct a clean inspection, an inspector must
"open an electrical junction box to see whether the wiring
inside is safe." Id. at 1479-80.11

Notwithstanding the previously expressed views of both the
Secretary and this court, RAG Cumberland challenges the
validity of the Commission's conclusion that a clean inspection
requires an examination for non-obvious hazards, arguing
that there is evidence that MSHA inspectors do not always
inspect as thoroughly as this view of the statute requires.
Lax inspection practices in the field, however, cannot trump
the views of the Secretary of Labor and the Commission. Cf.
Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir.
1998) (explaining that "deference is owed to the decisionmak-
er authorized to speak on behalf of the agency, not to each
individual agency employee"). We therefore hold that the
Commission properly vacated the ALJ's decision as based on
a legally erroneous definition of the requirements of a clean
inspection under s 104(d)(2) of the Mine Act.

B

Having vacated the ALJ's erroneous view of the law, the
Commission examined the record evidence regarding actual

__________
11 As another example, we observed that to "determine whether
there are unsafe concentrations of gases or dust an inspector must
employ special monitoring equipment." Id. at 1479.

inspection activity in the 60 West Mains haulage, and, based
on that evidence, reinstated the Secretary's s 104(d)(2) with-
drawal order. Commission Decision II, 22 F.M.S.H.R.C. at
1073-75. Although the Commission may not "substitute a
competing view of the facts for the view the ALJ reasonably
reached," Donovan, 709 F.2d at 92, it may apply the law to
the facts in the record and "modify the decision or order of
the administrative law judge in conformity with the record."
Mine Act s 113(d)(2)(C), 30 U.S.C. s 823(d)(2)(C).12 If sup-
ported by substantial evidence, the Commission's findings are
conclusive upon this court. Mine Act s 106(a)(1), 30 U.S.C.
s 816(a)(1).

In deciding that there had not been an intervening clean
inspection at the Cumberland Mine, the Commission relied on
two categories of evidence: the testimony of two of the full-
time MSHA inspectors responsible for quarterly inspections
of the mine and a log tracking actual inspection activity at the
mine. The two inspectors testified that they did not conduct
an inspection of the haulage between June 18 and September
25, 1997. ALJ Hr'g Tr. 287-88, 476, 501. As one of the
inspectors put it, "I didn't stop and I didn't do the things
necessary to inspect the haulage. I just traveled across it."
Id. at 288 (quoted in Commission Decision II, 22
F.M.S.H.R.C. at 1074). RAG Cumberland maintains that this
testimony is inconclusive because it fails to prove that no
inspector conducted a clean inspection. But the Commission
properly rejected the contention that, to meet her burden of
proof, the Secretary must submit evidence from every inspec-
tor who traveled through the haulage. Commission Decision
II, 22 F.M.S.H.R.C. at 1070. As the Commission pointed out,

__________
12 Under s 113(d)(2)(C) of the Mine Act, the Commission must
remand the case to the ALJ only if it "determines that further
evidence is necessary on an issue of fact." 30 U.S.C. s 823(d)(2)(C);
see Walker Stone Co. v. Sec'y of Labor, 156 F.3d 1076, 1085 n.6
(10th Cir. 1998) (holding remand unnecessary where the "essential
facts were not in dispute"); Sellersburg Stone Co. v. FMSHRC, 736
F.2d 1147, 1153 (7th Cir. 1984) (holding remand not required
"[g]iven the Commission's conclusion that uncontroverted evidence
did not warrant further factual findings").

when it originally placed the burden of proving the absence of
a clean inspection on the Secretary, it also made clear that to
carry this burden the Secretary "need not prove a negative."
Id. (citing Kitt Energy Corp., 6 F.M.S.H.R.C. at 1600).

The Commission's precedent also provides that, to show the
absence of a clean inspection, the Secretary may rely upon
inspection records for the period in question. See Kitt Ener-
gy Corp., 6 F.M.S.H.R.C. at 1600. Here, the mine operator
kept a log, which the Commission found and the record
confirms documents all inspection activity in the mine during
the relevant period. See Commission Decision I, 21
F.M.S.H.R.C. at 728. "Of special significance," the Commis-
sion said, was "the [ALJ's] finding, which is undisputed on
review, that the log entries do not indicate that any regular or
spot inspections took place in the 60 West Mains" haulage
between June 18 and September 25. Commission Decision
II, 22 F.M.S.H.R.C. at 1073 (citing ALJ Decision II, 21
F.M.S.H.R.C. at 1114). We agree that the absence of a log
reference to any inspections in the haulage is strong evidence
that the area was not inspected.

Contrary to RAG Cumberland's contention, the fact that
the mine operator rather than the Secretary initially intro-
duced the log into evidence does not mean that it cannot be
used to support a finding in favor of the Secretary. See
Burroughs Corp. v. Rocky Mountain Prestress, Inc., 431 F.2d
1185, 1187 (10th Cir. 1970). Nor does it make the log any
less probative. If anything, the fact that the mine operator
itself maintained the log makes it even more probative,
because the operator had every incentive to list particular
areas as having been inspected in order to break the chain of
s 104(d)(2) sanctions.13

__________
13 RAG Cumberland also contends that the log does not docu-
ment areas that were inspected, but instead merely indicates an
inspector's ultimate destination on a particular day. The ALJ did
not make such a finding, and the company's characterization is
contradicted by the record. In addition to testimony by a Cumber-
land employee that the log tracks the areas of the mine that were

 In sum, RAG Cumberland's log of inspection activity, to-
gether with the testimony of the MSHA inspectors, provides
substantial evidence for the Commission's conclusion that a
clean inspection of the 60 West Mains haulage did not occur
prior to the issuance of the September 25 withdrawal order.

IV

Because the Commission adopted an appropriate standard
for determining whether there was a clean inspection of the
60 West Mains haulage, and because substantial evidence in
the record supports the Commission's decision to reinstate
the Secretary's s 104(d)(2) withdrawal order under that stan-
dard, the petition for review is

Denied.

__________
inspected, ALJ Hr'g Tr. 774-75, the caption of the relevant column
of the log reads "area inspected"--not "area traveled to." J.A. at
59.