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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2004 Decided February 24, 2004
No. 03-1070
SECRETARY OF LABOR,
PETITIONER
v.
OHIO VALLEY COAL COMPANY AND
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,
RESPONDENTS
On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission
Robin A. Rosenbluth, Attorney, U.S. Department of Labor,
argued the cause for petitioner. With her on the briefs was
W. Christian Schumann, Counsel.
Melanie J. Kilpatrick argued the cause for respondent.
With her on the brief was Marco M. Rajkovich, Jr.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS, SENTELLE, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: This case arises out of a fatal
accident in a mine owned and operated by the Ohio Valley
Coal Company (‘‘Ohio Valley’’). Thomas Ciszewski, a mine
belt foreman for Ohio Valley, had his arm severed by moving
machinery while he was assessing necessary maintenance and
repairs on the equipment. The injury resulted in his death
shortly after the accident. The Department of Labor’s Mine
Safety and Health Administration (‘‘MSHA’’) issued a citation
against Ohio Valley for violating a regulation providing that
‘‘repairs or maintenance shall not be performed on machinery
until the power is off and the machinery is blocked against
motion.’’ 30 C.F.R. § 75.1725(c) (2003). The Federal Mine
Safety and Health Review Commission (‘‘FMSHRC’’ or
‘‘Commission’’) vacated the citation, holding that Mr. Ciszew-
ski did not violate the regulation because he was not perform-
ing repair or maintenance when he was injured. Sec’y of
Labor v. Ohio Valley Coal Co., 24 F.M.S.H.R.C. 1072, 1077
(2002). The Secretary of Labor (‘‘Secretary’’) petitions for
review of the Commission’s decision, claiming that the disput-
ed safety standard clearly applies when a miner is at the
location of running machinery to assess what repair or main-
tenance is necessary to correct an apparent problem. We
defer to the Secretary’s reasonable interpretation of the
regulation and grant the petition for review.
I. BACKGROUND
A. Statutory Background
The Mine Safety and Health Act (‘‘Mine Act’’ or ‘‘Act’’), 30
U.S.C. § 801-962 (2000), authorizes the Secretary of Labor to
promulgate mandatory health and safety standards for the
nation’s mines. See 30 U.S.C. § 811. The Mine Safety and
Health Administration acts on behalf of the Secretary to
assure compliance with these health and safety standards by
issuing citations for violations. See 30 U.S.C. § 814(a).
MSHA also investigates mine accidents to determine the
3
cause and the means of preventing recurrence. See 30 U.S.C.
§ 813(d). The Federal Mine Safety and Health Review Com-
mission adjudicates disputes arising under the Act, see 30
U.S.C. § 823, including challenges by mine operators to cita-
tions issued by the Secretary of Labor. See RAG Cumber-
land Res. LP v. FMSHRC, 272 F.3d 590, 595 (D.C. Cir. 2001).
At issue in this case is the interpretation of a safety
regulation addressing repairs and maintenance on moving
machinery. The regulation states that
[r]epairs or maintenance shall not be performed on
machinery until the power is off and the machinery
is blocked against motion, except where machinery
motion is necessary to make adjustments.
30 C.F.R. § 75.1725(c).
B. Factual Background
The facts in this case are largely undisputed and set forth
in full in the Commission’s decision. See Ohio Valley Coal
Co., 24 F.M.S.H.R.C. at 1072-74. We will therefore only
briefly summarize the facts before turning to the issues
presented by the petition for review. The Ohio Valley Coal
Company owns and operates Powhatan No. 6 Mine, an under-
ground coal mine in Belmont County, Ohio. Thomas M.
Ciszewski, a belt foreman employed by Ohio Valley, was
responsible for the operation of the belts at the Powhatan No.
6 Mine. On April 19, 2001, at around 5:15 p.m., Ohio Valley’s
pre-shift examiners heard a flapping noise near the stationary
take-up roller at break 62 while examining the Second Main
North Belt. They reported that the guarding around the belt
take-up unit was in place; but they did not report the noise.
Ohio Valley Coal Co., 24 F.M.S.H.R.C. at 1072-73; see also
Joint Stipulation of Facts (‘‘Joint Stip.’’) ¶ ¶ c, k-n, u-v, mm,
Joint Appendix (‘‘J.A.’’) 198–200.
At around 8:30 p.m. on April 19, two belt repairmen for
Ohio Valley performed some repairs on the First Main North
belt wings, near break 61. After finishing the repairs, they
heard a voice calling for help nearby. They then saw a man
4
stagger and fall. They ran to the man and found Thomas
Ciszewski on the ground, missing his left arm, and suffering
facial cuts. One repairman went to the accident site and
found the arm lying outside the guarding in the walkway on
the return side of the Second Main North belt conveyor. He
brought the arm back to where Ciszewski had fallen. At 9:00
p.m., Ciszewski was pronounced dead. Ohio Valley Coal Co.,
24 F.M.S.H.R.C. at 1073; see also Joint Stip. ¶ ¶ o, t, aa, cc,
J.A. 199–201.
MSHA was notified of the accident at 9:20 p.m., and an
initial response team arrived at the mine at 10:15 p.m. The
response team then investigated the accident, taking photo-
graphs and measurements, and making drawings. The in-
vestigation was continued the following day. The MSHA
investigators ultimately determined that a grease hose was
inadvertently wrapped around the shaft of the stationary
take-up roller on the track side of the belt, causing the
flapping noise that had been heard by the pre-shift examin-
ers. They reported that the guard panels that had been in
place during the pre-shift examination had been removed.
On the basis of their investigation, the MSHA team con-
cluded that, while assessing the problem, Ciszewski’s left
arm had contacted and gotten caught in the pinch point
between the moving belt and the stationary roller of the
belt take-up unit. Ohio Valley Coal Co., 24 F.M.S.H.R.C.
at 1074; see also United States Dep’t of Labor, Mine Safe-
ty and Health Administration, Report of Investigation (Aug.
9, 2001) at 6, J.A. 228.
MSHA issued two citations to Ohio Valley for violations of
the Secretary of Labor’s mine health and safety standards
and sought a penalty of $50,000. Ohio Valley conceded the
first citation, for removing the guarding on the belt drive, in
violation of 30 C.F.R. § 75.1722(a). See Ohio Valley Coal Co.,
24 F.M.S.H.R.C. at 1075. However, the company challenged
the second citation, issued pursuant to 30 C.F.R. § 75.1725(c),
charging that Mr. Ciszewski had attempted ‘‘to assess or
repair maintenance (noise) problem on the return walkway
side of the belt take-up stationary roller’’ while the belt and
take-up unit were still in operation and not blocked against
5
motion. See United States Dep’t of Labor, Mine Safety and
Health Administration, Citation/Order 7089484 (May 31, 2002)
at 2, J.A. 212.
The Commission subsequently vacated the § 75.1725(c) ci-
tation, holding that the regulation did not apply to Mr.
Ciszewski’s situation. The FMSHRC found, and the Secre-
tary does not dispute, that Ciszewski was ‘‘assessing the
situation to determine what repairs were needed.’’ Ohio
Valley Coal Co., 24 F.M.S.H.R.C. at 1077. Based on this
finding, the FMSHRC concluded that the ‘‘plain and unam-
biguous’’ language of the regulation, prohibiting the perform-
ance of repairs or maintenance while the power was on, did
not extend to ‘‘assessing what repair or maintenance is need-
ed.’’ Id. The Secretary of Labor now petitions this court for
review of the FMSHRC’s decision vacating the citation.
II. ANALYSIS
A. Standard of Review
‘‘The legislative history of the Mine Act indicates that ‘the
Secretary’s interpretations of the law and regulations shall be
given weight by both the Commission and the courts.’ ’’ Sec’y
of Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1435 (D.C.
Cir. 1989) (quoting S. REP. NO. 95-181 (1977)). When, as here,
the Secretary of Labor and the Commission offer conflicting
interpretations of a regulation promulgated by the Secretary
under the Mine Act, this court has repeatedly held that the
Secretary’s position is entitled to the deference pursuant to
the standards enunciated in Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1983). See, e.g.,
Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 5-6 (D.C.
Cir. 2003); RAG Cumberland Res. LP, 272 F.3d at 596; Akzo
Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1303 (D.C. Cir.
2000); Sec’y of Labor v. FMSHRC, 111 F.3d 913, 916 (D.C.
Cir. 1997); Energy West Mining Co. v. FMSHRC, 40 F.3d
457, 462 (D.C. Cir. 1994); Cannelton Indus., 867 F.2d at 1435.
Therefore, the standard of review in this case is well estab-
lished and clear: Under the first step of Chevron, this court
‘‘ ‘must give effect to the unambiguously expressed intent of
6
Congress.’ ’’ Cannelton Indus., 867 F.2d at 1435 (quoting
Chevron, 467 U.S. at 843). But when the statute is silent or
ambiguous with regard to the specific issue, this court must
determine whether the Secretary’s interpretation is ‘‘ ‘a per-
missible construction of the statute.’ ’’ Id.
The Secretary is entitled to no less deference with respect
to interpretations of her own regulations. See id. Thus, we
have held that, ‘‘in the statutory scheme of the Mine Act, ‘the
Secretary’s litigating position before [the Commission] is as
much an exercise of delegated lawmaking powers as is the
Secretary’s promulgation of a TTT health and safety standard,’
and is therefore deserving of deference.’’ Excel Mining,
LLP, 334 F.3d at 6 (quoting RAG Cumberland LP, 272 F.3d
at 596 n.9). There is no claim here that the Secretary’s
position is at odds with the Mine Act. Rather, the only issue
in this case is whether the Secretary’s interpretation of her
own regulation rests on a permissible construction of the
language of the regulation. And, under well-recognized prec-
edent, we can reject the Secretary’s interpretation only if ‘‘it
is plainly erroneous or inconsistent with the regulation.’’ See
Akzo Nobel Salt, Inc., 212 F.3d at 1303.
B. The Secretary’s Interpretation
The Secretary seeks to overturn the Commission’s judg-
ment, arguing that the safety standard at 30 C.F.R.
§ 75.1725(c) clearly applies when a miner is at the location of
running machinery to assess what repair or maintenance is
necessary to correct an apparent problem. Ohio Valley ar-
gues, relying on the Commission’s decision, that the plain
meaning of the regulation precludes application to such cir-
cumstances. We disagree. We uphold the Secretary’s inter-
pretation because it is both consistent with the language of
the regulation and reasonable.
In holding that the regulation’s plain meaning excluded Mr.
Ciszewski’s situation, the Administrative Law Judge (‘‘ALJ’’)
relied upon definitions of ‘‘repair’’ and ‘‘maintenance’’ in
Walker Stone Co., Inc., 19 F.M.S.H.R.C. 48, 51 (1997), which
interpreted those terms in a similarly worded regulation.
7
The ALJ understood ‘‘repair’’ to mean ‘‘ ‘to restore by replac-
ing a part or putting together what is torn or broken: fix,
mend TTT to restore to a sound or healthy state: renew,
revivify.’ ’’ Ohio Valley Coal Co., 24 F.M.S.H.R.C. at 1077
(quoting Walker Stone, 19 F.M.S.H.R.C. at 51). He under-
stood ‘‘maintenance’’ to mean ‘‘ ‘the labor of keeping some-
thing (as buildings or equipment) in a state of repair or
efficiency: care, upkeep TTT’ ’’ Id. Based on these defini-
tions, the ALJ concluded: ‘‘Plainly, [the regulation] connotes
action and deals with the physical acts of fixing, mending, or
keeping in a state of repair. It follows that it does not
include assessing what repair or maintenance is needed.’’ Id.
at 1077. And, finally, the ALJ relied on a dictionary defini-
tion of ‘‘perform’’ as ‘‘to carry out or bring about: accomplish,
executeTTTT’’ Id. (quoting WEBSTER’S NEW INTERNATIONAL
DICTIONARY 1678 (3d ed. 1993)). Ohio Valley simply adopts
the ALJ’s definitions of ‘‘repair,’’ ‘‘maintenance,’’ and ‘‘per-
form,’’ and argues that assessing what repairs are needed is
outside the scope of these definitions. See Respondent’s Br.
at 8-9.
The Secretary does not dispute these definitions. See
Petitioner’s Br. at 15-16. She argues that these definitions
encompass examining machinery to see what specific acts of
repair or maintenance may be needed on the machinery,
‘‘when, as here, there is a specific indication that there may
be something wrong with the machinery (here the machinery
was making an unusual noise).’’ Id. at 16. The Secretary
argues that an assessment made under these circumstances
constitutes ‘‘the labor of keeping [the machinery] in a state of
repair,’’ and is therefore consistent with the Commission’s
definition of ‘‘maintenance.’’ Id. We agree.
In this situation, Ciszewski’s assessment constituted ‘‘main-
tenance,’’ because he was assessing the machinery as part of
‘‘maintenance.’’ There is no doubt that Ciszewski examined
the running machinery with an aim to correct an apparent
mechanical problem. And, in this instance, the assessment
took place in a location where a worker’s safety might be
threatened by running machinery.
8
Furthermore, the plain meaning of the word ‘‘perform’’
does not exclude the assessment at issue. Maintenance re-
pairs could not be completed without an assessment. In
examining the machinery at close range, Mr. Ciszewski was
engaging in a physical activity directed at ‘‘carry[ing] out,’’
‘‘accomplish[ing],’’ or ‘‘bring[ing] about’’ the keeping of the
machinery in good repair, consistent with the definition of
‘‘perform’’ relied upon by Ohio Valley and the Commission.
See Respondent’s Br. at 8-9; Ohio Valley Coal Co., 24
F.M.S.H.R.C. at 1077. Therefore, the regulation’s language
does not unambiguously exclude Mr. Ciszewski’s actions.
In addition to being consistent with the plain language of
the regulation, the Secretary’s interpretation of § 75.1725(c)
is eminently reasonable. The Secretary does not claim that
any idle ‘‘assessment’’ by workers of the state of running
machinery is covered by § 75.1725(c); nor does the Secretary
claim that routine mine ‘‘inspections’’ that might subsequently
lead to maintenance repairs are within the ambit of
§ 75.1725(c). Accordingly, we uphold the Secretary’s ‘‘as-
sessment’’ interpretation only insofar as it applies to factual
situations like the one raised in this case.
III. CONCLUSION
For the foregoing reasons, we grant the petition for review.