Secretary of Labor v. Twentymile Coal Co.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2005 Decided June 10, 2005

Nos. 04-1292 & 04-1312

SECRETARY OF LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION
PETITIONER/CROSS-RESPONDENT

v.

TWENTYMILE COAL COMPANY AND
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,
RESPONDENT/CROSS-PETITIONER

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

Jerald S. Feingold, Attorney, Secretary of Labor, argued the
cause for petitioner/cross-respondents. With him on the brief
was W. Christian Schumann, Counsel.

Ralph Henry Moore, II argued the cause for
respondent/cross-petitioner. With him on the brief were Karen
L. Johnston and Trisha L. Culp.

Before: SENTELLE, RANDOLPH and GARLAND, Circuit
Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.
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SENTELLE, Circuit Judge: This case comes before us on
cross-petitions for review of an order of the Federal Mine Safety
and Health Review Commission wherein the Commission ruled
that Twentymile Coal Co. (“Twentymile”) violated the
mandatory training standard set forth at 30 C.F.R. § 48.7(c)
(2002), but that the proposed penalty assessment was not issued
within a reasonable time. Sec’y of Labor v. Twentymile Coal
Co., 26 F.M.S.H.R.C. 666 (Aug. 12, 2004) (“Commission
Order”). Because we agree with the Commission that
Twentymile did violate the mandatory training standard, we
deny Twentymile’s petition for review. But because we
disagree with the Commission and hold that the proposed
penalty assessment was issued within a reasonable time, we
grant the Secretary of Labor’s petition for review, vacating the
order of the Commission and remanding the matter to the
Commission for further proceedings not inconsistent with this
opinion.

I. BACKGROUND

A. The Accident & Investigation

Twentymile operates the Foidel Creek Mine (“the mine”),
a large underground coal mine in Colorado. Among its three
hundred miners was Kyle Webb, who had worked on the crew
of Matthew Winey for more than four years. 26 F.M.S.H.R.C.
at 668. Winey, in turn, worked under Kevin Olson, acting shift
supervisor. Id.
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The geological conditions at the mine required that rock
sometimes be extracted with the coal. The rock-coal mix was
transported away from pure coal extract to prevent accidental
commingling. A chute was designed to facilitate the process.
The 45-to-50-foot chute, five feet square, was placed in a
vertical shaft twelve feet in diameter. The rock-coal mix was
dumped into the chute from a conveyer belt, where it fell from
one level of the mine to the level below. Id at 667. The chunks
falling through the chute ranged in diameter from one to eight
inches; baffles slowed the fall of the chunks and prevented
damage to the box or conveyer belt at the lower level. Miners
could maintain the chute by climbing the ladder alongside the
chute and opening one of four doors that accessed the inside of
the chute. Id.

This particular chute was a new addition to the mine at the
time of the accident, and differed from pre-existing chutes in
that it was “slightly slanted . . . instead of [] complete[ly]
vertical,” ALJ Tr. 171 (May 29, 2002), but the clearing of chutes
in general was nothing new to Twentymile. Other chutes
clogged. According to one mine employee, the clogging of
chutes was a “recurring problem,” happening every four to six
months. 26 F.M.S.H.R.C. at 677.

On June 6, 2000, after only ten days of operation, the
vertical chute in the mine clogged. Id. at 667. Olson assigned
Winey to unplug the chute; at some point after this team began
working to clear the chute, Webb climbed the ladder and
attempted to unclog it. Id. at 668. Neither Winey nor beltman
Rick Fadely instructed Webb to climb the ladder, and Winey did
not ask Webb what he was doing. Id.

The material in the chute began to move; Webb fell from
the ladder and landed on a platform, and the chute’s rock-coal
mixture fell upon him. Id. Webb was airlifted to a local
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hospital where he was treated for “serious, but non-fatal, head
injuries.” Id.

R. Lincoln Derick, the mine’s safety manager, was apprised
of the incident: he contacted MSHA Inspector Philip Gibson.
Both went to the mine with various law-enforcement and mine
officials. Id. Following a week’s investigation, Gibson issued
an order, pursuant to Mine Act section 104(g)(1), 30 U.S.C. §
814(g)(1), charging Twentymile with a violation of 30 C.F.R. §
48.7(c), which provides that “[m]iners assigned a new task . . .
shall be instructed in the safety and health aspects and safe work
procedures of performing such task.” Six months later, on
January 4, 2001, MSHA issued an accident investigation report.
After another seven months had passed, on July 31, 2001, the
report and an accompanying assessment report were sent to the
U.S. Department of Labor’s Assessment Office. On November
9, 2001, MSHA proposed a specific penalty assessment and the
case proceeded to trial before an administrative law judge
(“ALJ”). 26 F.M.S.H.R.C. at 669-70.

B. Proceedings Before the ALJ

Twentymile filed a notice of contest; on August 1, 2000, the
contest was stayed pending issuance of the penalty assessment.
Once MSHA issued its proposed penalty assessment in
November 2001, the stay was lifted. See Commission Order, 26
F.M.S.H.R.C. at 670.

The ALJ held that the clearing of the rock chute constituted
a “new task” under 30 C.F.R. § 48.7(c) such that the mine was
required to train the workers for the matter prior to engaging the
chute. Twentymile Coal Co. v. Secretary of Labor, 25
F.M.S.H.R.C. 373 (July 14, 2003) (“ALJ Order”). The clearing
of the chute was a “task” under section 48.7(c) because it fit the
definition provided at section 48.2(f): A “task” is “a work
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assignment that includes duties of a job that occur on a regular
basis and which requires physical abilities and job knowledge.”
30 C.F.R. § 48.2(f). The ALJ held that the clearing of the chute
was a matter that would occur on a “regular” basis even though
it had not occurred previously at that ten-day-old chute and was
not subject to a fixed schedule. See Commission Order, 26
F.M.S.H.R.C. at 670; ALJ Order, 25 F.M.S.H.R.C. at 383-84.

The violation was deemed “significant and substantial”
based on the ALJ finding that there was a reasonable likelihood
that the hazard would result in an injury or severe illness. ALJ
Order, 25 F.M.S.H.R.C. at 385-86. The ALJ ordered a penalty
despite the seventeen-month span of time between the
Inspector’s June 16, 2000 order and the November 9, 2001
MSHA penalty assessment. Id. at 386-88. He held that the
reasons for delay – to wit, a shift in personnel in MSHA offices
and “a failure by the new employee to understand his duties” –
were “understandable” and that Twentymile suffered no
prejudice from the delay. Id. at 387-88. The ALJ reduced the
proposed $6,000 penalty to $1,500. Id. at 389.

C. Proceedings Before the Commission

Twentymile appealed the ALJ’s decision to the
Commission. Before the Commission, Twentymile again
argued, inter alia, that the unclogging of the chute was not a
“new task” under sections 48.7(c) and 48.2(f) because it was not
a process performed on a regular basis. The Commission
accepted the Secretary’s argument that substantial evidence
supported the ALJ’s findings regarding the recurring nature of
unclogging the chute. Commission Order, 26 F.M.S.H.R.C. at
677. The fact that “[j]ams, clogs, or other failures are, of course,
not scheduled events,” id. at 678, was not fatal to the finding
that “the rock chute would reasonably be anticipated to clog or
jam on a recurring basis,” id. The Commission held that
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[w]here a task cannot be scheduled, but is reasonably
foreseeable as a recurring duty with discrete health and
safety concerns, an operator is expected to provide proper
planning and communication to ensure that workers
performing the task receive appropriate training. To hold
otherwise would be to defer training necessary to guard
against the hazards associated with the job until an
unfortunate experience ratifies the need for task training.

Id.

On the question of unreasonable delay between the close of
the investigation and the issuance of the civil penalty, however,
the Commission reversed the decision of the ALJ. The
Commission held that the Secretary failed to show “adequate
cause for the delay so as to render it ‘reasonable.’” Id. at 682-
83. The Commission held that “the bulk of the delay” was due
to “unexplained delays” and “outright neglect” on the part of the
Secretary’s personnel. Id. at 684. While the Commission
admitted that it “could possibly excuse delay in either the
preparation of the accident report or the processing of the
proposed penalty, the cumulative effect of the two significant
delays” exceeded “reasonable” limits. Id. (emphasis in
original). Therefore, the Commission “invoke[d] the
extraordinary remedy of vacating the civil penalty.” Id. at 685.

At the oral argument, the Commission raised sua sponte the
question of whether the section 104(g) order met the
requirements of the Mine Act despite its lack of specific
identification of the miners subject to its coverage. In the order,
the Commission concluded that the miner-specific order issued
on June 16, 2000, pursuant to section 104(g) of the Mine Act, 30
U.S.C. § 814(g), was not sufficiently specific; the Commission
held that the order was void ab initio. Commission Order, 26
F.M.S.H.R.C. at 672-75. But instead of vacating the order, the
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Commissioners elected to “modify” the section 104(g) order to
a section 104(a) citation. Id. at 675.

The Secretary requested reconsideration of the
Commission’s decision, but the request was denied.
Twentymile and the Secretary both filed timely petitions for
review of the Commission’s decision. Those petitions are
consolidated before us.

II. ANALYSIS

A. “New Task”

As noted above, the mine safety regulation at issue requires
that “[m]iners assigned a new task . . . be instructed in the safety
and health aspects and safe work procedures of the task.” 30
C.F.R. § 48.7(c). A “task” is “a work assignment that includes
duties of a job that occur on a regular basis and which requires
physical abilities and job knowledge.” Id. § 48.2(f).

The Secretary interprets the “new task” regulations as
applying to those work assignments which, despite never having
occurred at the particular mine before, are such that a
“reasonably prudent operator familiar with the mining industry
and the protective purposes of the standard [would] have
recognized . . . would occur on a regular basis.” Resp. Br. of
Sec’y of Labor at 10 (quoting ALJ Order, 25 F.M.S.H.R.C. at
383-84).

Twentymile challenges not the Secretary’s interpretation of
the relevant provisions of the Mine Act, but rather the
Secretary’s interpretation of the Department of Labor’s own
regulations. This Court affords great deference to an agency’s
interpretation of its own regulation: “under well-recognized
precedent, we can reject the Secretary’s interpretation only if ‘it
 8

is plainly erroneous or inconsistent with the regulation.’” Sec’y
of Labor v. Ohio Valley Coal Co., 359 F.3d 531, 534-35 (D.C.
Cir. 2004) (quoting Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d
1301, 1303 (D.C. Cir. 2000)). There is no such error or
inconsistency in this case. To read the regulation’s use of the
term “occur” in a way that precludes coverage of events that
have not previously occurred yet promise to occur with
regularity in the future would lead to absurd results: it would
only require mines to train workers for dangerous tasks that have
already been undertaken at least once before in the mine. Given
the relative rarity of individual types of accidents in any
particular mine, combined with the threat of harm inherent in
any single occurrence of these rare accidents, this reading of the
statute is hardly reasonable in a statutory regime that declares,
first and foremost, that “the first priority and concern of all in
the coal or other mining industry must be the health and safety
of its most precious resource – the miner,” and that “there is an
urgent need to provide more effective means and measures for
improving the working conditions and practices in the Nation’s
coal or other mines in order to prevent death and serious
physical harm[.]” Mine Act §§ 801(a), (c), codified at 30 U.S.C.
§ 801.

Twentymile’s interpretation of the regulation is particularly
untenable because it would render the pertinent regulation a
nullity. Under that reading of the regulation, the Commission
could not require training on the cleaning of the chute until after
workers had begun to clean the chute regularly. We cannot take
seriously the suggestion that the Commission endorsed a policy
promoting that the Twentymile miners attempt work when it is
most dangerous: that is, when the miner is utterly ignorant of the
task at hand. Such a state of affairs is precisely the situation the
Mine Act, and the relevant regulations, have been enacted to
guard against. This Court will not adopt an interpretation of a
statute or regulation when such an interpretation would render
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the particular law meaningless. Halverson v. Slater, 129 F.3d
180, 185 (D.C. Cir. 1997); AT&T Corp. v. FCC, 394 F.3d 933,
938-39 (D.C. Cir. 2005).

B. Penalty

This question, as opposed to the preceding one, requires that
we review interpretation of a statute rather than a regulation.
Section 105(a) of the Mine Act provides that “[i]f, after an
inspection or investigation, the Secretary issues a citation or
order under section 104, he shall, within a reasonable time after
the termination of such inspection or investigation, notify the
operator . . . of the civil penalty proposed . . . .” 30 U.S.C. §
815(a).

The Secretary interprets this statute as providing that “the
termination of the investigation occurred when the accident
investigation report” – not the MSHA Inspector’s order – “was
issued.” Pet. Br. of Sec’y of Labor at 43. Admittedly, this is not
a formalized statement of statutory interpretation of the sort that
usual invokes Chevron deference. U.S. v. Mead Corp., 533 U.S.
218, 227-28 (2001). But because “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 . . . health and
safety standard, [it] is therefore deserving of deference.” Sec’y
of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003)
(quoting RAG Cumberland Res. LP v. FMSHRC, 272 F.3d 590,
596 n.9 (D.C. Cir. 2001) (quoting Martin v. Occupational Safety
& Health Review Comm’n, 499 U.S. 144, 157 (1991)))
(quotation marks omitted) (alterations in original).

The Secretary argues that the Commission ignored Supreme
Court precedent in refusing to assess a penalty for Twentymile’s
violation of the relevant standard. In Brock v. Pierce County the
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Court held that Congress’s specification of a 120-day period for
issuing a final determination on the recovery of funds under the
Comprehensive Employment and Training Act did not preclude
the Secretary from recovering the funds in enforcement of the
statutory provisions after the 120-day period lapsed. 476 U.S.
253, 265 (1986). The Court warned that it “would be most
reluctant to conclude that every failure of an agency to observe
a procedural requirement voids subsequent agency action,
especially when important public rights are at stake.” Id. at 260.
The Court concluded that “[t]he 120-day provision was clearly
intended to spur the Secretary to action, not to limit the scope of
his authority. Congress intended that the Secretary should have
maximum authority to protect the integrity of the program.”
Id. at 265 (quotation marks omitted). And the Court noted
recently that not “since Brock[,] have we ever construed a
provision that the Government ‘shall’ act within a specified
time, without more, as a jurisdictional limit precluding action
later.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003)
(collecting cases). The Secretary argues that the Commission
erred as a matter of law when it purported to prohibit the
Secretary’s action in a manner explicitly prohibited by the
Supreme Court.

But we need not decide this issue, because we again find the
Secretary’s interpretation concerning the termination of the
investigation reasonable.1 The Commission’s position that the
investigation ends at the time of the abatement order is clearly
erroneous: Section 105 itself includes among the factors to
consider in the assessment of a penalty “the demonstrated good
faith of the operator charged in attempting to achieve rapid

1 Where the Secretary and the Commission conflict in their
interpretations of the statute, we defer to the Secretary who has been
empowered by Congress to promulgate regulations under the relevant
statute. Martin, 499 U.S. at 58.
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compliance after notification of a violation.” 30 U.S.C. §
815(b)(1)(B) (emphasis added). Given that Congress included
the response to the investigation among the relevant criteria, we
cannot deem it plausible that Congress contemplated that any
determination of the reasonableness of time could begin before
the determination could be made – that is, before the mine had
an opportunity to respond to the order. With that starting point,
there is no unreasonable delay, and the Commission’s refusal to
impose penalty is without foundation. We further note that it
would be particularly inappropriate to set aside the Secretary’s
recommendation for penalty in this case given that Twentymile,
after repeated opportunity, has yet to show any prejudice to
itself from whatever delay in fact occurred.

C. Order Modification

As noted above, the Commission considered sua sponte the
requirements of a section 104(g) order and chose to “modify”
the order into a section 104(a) citation. Twentymile now objects
to this modification. This Court lacks jurisdiction to consider
Twentymile’s objection because Twentymile did not urge this
objection before Commission, either in the original hearing or
in a petition for reconsideration after the Commission issued its
decision. We cannot consider an “objection that has not been
urged before the Commission,” 30 U.S.C. § 816(a)(1), absent
“extraordinary circumstances,” and we see no such
circumstances before us.

III. CONCLUSION

This Court grants the Secretary’s petition for review,
vacating the order of the Commission and remanding the matter
to the Commission for proceedings not inconsistent with the
instructions contained within this opinion. Twentymile’s
petition for review is dismissed.