United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2011 Decided November 4, 2011
No. 10-1392
WOLF RUN MINING COMPANY,
PETITIONER
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
AND SECRETARY OF LABOR,
RESPONDENTS
On Petition for Review of a Decision of
the Federal Mine Safety and Health Review Commission
Ralph Henry Moore argued the cause for the petitioner.
Samuel Charles Lord, Attorney, United States
Department of Labor, argued the cause for the respondent. W.
Christian Schumann and Jerald S. Feingold, Attorneys,
United States Department of Labor, were with him on brief.
John T. Sullivan, Attorney, entered an appearance.
Before: HENDERSON, TATEL and GRIFFITH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner
Wolf Run Mining Company (Wolf Run) seeks review of a
decision of the Federal Mine Safety and Health Review
Commission (Commission), an agency within the United
States Department of Labor (Labor). Wolf Run Mining Co.,
32 FMSHRC 1228 (2010). The issue on appeal is whether a
Mine Safety and Health Administration (MSHA) inspector is
authorized to designate the violation of a safeguard notice
issued pursuant to section 314(b) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (Mine Act),
as “significant and substantial” under section 104(d)(1) of the
Mine Act, which limits the “significant and substantial”
designation to a violation of a “mandatory health or safety
standard.” 30 U.S.C. § 814(d). For the reasons set forth
below, we agree with the Commission majority that the
violation of a safeguard notice issued pursuant to section
314(b) amounts to a violation of section 314(b) and is
therefore a violation of a mandatory safety standard which
can be designated “significant and substantial.” Accordingly,
we deny Wolf Run’s petition.
I. Background
A. Statutory
Section 104(d)(1) of the Mine Act authorizes the
Secretary of Labor (Secretary), through her authorized
representative, 1 to designate an operator’s violation of a
mandatory health or safety standard as “significant and
substantial” “if . . . such violation is of such a nature as could
significantly and substantially contribute to the cause and
1
The Secretary’s authorized representative is the MSHA inspector.
See 29 U.S.C. § 557a; 30 U.S.C. § 954.
3
effect of a coal or other mine safety or health hazard.” 30
U.S.C. § 814(d)(1). “Designation of a violation as
‘significant and substantial’ under section 104(d)(1) can have
significant consequences to a mine operator.” Cyprus
Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 43 & n.1 (D.C.
Cir. 1999). For instance, the minimum penalty for a citation
involving a “significant and substantial” violation issued
under section 104(d)(1) is $2,000 whereas a citation without
the “significant and substantial” designation has no minimum
penalty. Compare 30 U.S.C. § 820(a)(3)(A) with id.
§ 820(b)(1). “Significant and substantial” violations can also
lead to a withdrawal order. See infra note 6.
Section 3(l) of the Mine Act defines a “mandatory health
or safety standard” as “the interim mandatory health or safety
standards established by [Titles] II and III of this [Act], and
the standards promulgated pursuant to [Title] I of this [Act].”
30 U.S.C. § 802(l). Under Title I of the Mine Act, the
Secretary may, through notice and comment rulemaking,
“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 or other
mines.” Id. § 811(a). Title II of the Mine Act provides for
interim mandatory health standards “applicable to all
underground coal mines” that are to “be enforced in the same
manner and to the same extent as any mandatory health
standard promulgated under the provisions of [Title I of the
Act].” Id. § 841(a). Title III of the Mine Act provides similar
authority for interim mandatory safety standards “applicable
to all underground coal mines” and “enforced in the same
manner and to the same extent as any mandatory safety
standard promulgated under [Title I of the Act].” Id. § 861(a).
Included in Title III is section 314(b) which provides that
“[o]ther safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize
4
hazards with respect to transportation of men and materials
shall be provided.” 30 U.S.C. § 874(b) (emphases added); see
also 30 C.F.R. § 75.1403 (repeating verbatim section 314(b)).
The Secretary has chosen to implement section 314(b) by
authorizing a MSHA inspector to issue a safeguard notice on
a mine-by-mine basis and has established “the criteria by
which [the inspector] will be guided in requiring” such
safeguard. Id. § 75.1403-1(a). 2 To require a safeguard
pursuant to section 314(b) and 30 C.F.R. § 75.1403, the
MSHA inspector issues a written safeguard notice to an
operator specifying the safeguard the operator must provide
and the operator is then given a certain amount of time to
comply. “If the safeguard is not provided within the time
fixed and if it is not maintained thereafter,” the inspector
issues a citation to the operator pursuant to section 104 of the
Mine Act. Id. § 75.1403-1(b); see 30 U.S.C. § 814 (setting
forth citation issuance procedure).
2
Section 75.1403-1 provides in part:
(a) Sections 75.1403–2 through 75.1403–11 set
out the criteria by which an authorized
representative of the Secretary will be guided in
requiring other safeguards on a mine-by-mine basis
under § 75.1403. Other safeguards may be
required.
(b) The authorized representative of the Secretary
shall in writing advise the operator of a specific
safeguard which is required pursuant to § 75.1403
and shall fix a time in which the operator shall
provide and thereafter maintain such safeguard. If
the safeguard is not provided within the time fixed
and if it is not maintained thereafter, a notice shall
be issued to the operator pursuant to section 104 of
the Act.
30 C.F.R. § 75.1403-1(a)−(b).
5
B. Factual
Wolf Run operates the Sentinel underground coal mine in
Barbour County, West Virginia. On June 27, 2000, a MSHA
inspector issued safeguard notice number 7095089 with
respect to the Sentinel mine. The notice required that all
moving conveyor belts at the Sentinel Mine be provided with
“suitable crossing facilities where persons are required to
cross over or under [them].” 3 The safeguard notice cited both
section 314(b) and 30 C.F.R § 75.1403-5(j) 4 as its authority.
On January 23, 2008, a MSHA inspector issued citation
number 6606199 to Wolf Run for failing to provide “a
suitable crossing facility” at the Sentinel mine in violation of
30 C.F.R. § 1403-5(j) and the safeguard notice issued on June
27, 2000. The inspector designated the violation “significant
and substantial.”
Wolf Run contested the citation and the case was
assigned to an administrative law judge (ALJ). 5 Before the
3
The notice recited that the lack of a suitable crossing facility at
conveyor belt #1 in Unit #2 exposed miners to the risk of being
struck by material falling from the conveyor belt as well as the risk
of contacting the conveyor belt when crawling under or climbing
over it. Wolf Run was required to provide a crossing facility at all
conveyor belts later on the same day the notice was issued.
4
Section 1403-5(j) provides that “[p]ersons should not cross
moving belt conveyors, except where suitable crossing facilities are
provided.” 30 C.F.R. § 1403-5(j).
5
After the Secretary notifies an operator of the proposed civil
penalty, the operator has thirty days to contest the citation and/or
the proposed penalty. 30 U.S.C. § 815(a). The Secretary then
informs the Commission and the Commission provides the operator
an opportunity for a hearing before an ALJ. Id. § 815(d); 29 C.F.R.
§ 2700.50. Within thirty days of the ALJ’s decision, the operator
6
ALJ, Wolf Run moved for a partial summary decision,
arguing that a violation of a safeguard notice cannot be
designated “significant and substantial” under section
104(d)(1) of the Mine Act because it does not constitute a
violation of a mandatory health or safety standard. The
Secretary opposed Wolf Run’s motion. On December 18,
2008, the ALJ denied Wolf Run’s motion. Wolf Run then
sought review of the ALJ’s decision before the Commission.
It stipulated that it had violated 30 C.F.R. § 1403-5(j), that the
gravity level was “reasonably likely” to cause “lost work days
or restricted duty” injury for at least one miner, that its
negligence level was “moderate” and that the Secretary’s
proposed civil penalty of $1,304 was appropriate 6 pursuant to
the criteria listed in the Mine Act. 32 FMSHRC at 1230; see
30 U.S.C. § 815(b)(1)(B). 7
On October 21, 2010, the Commission affirmed the
ALJ’s decision. The Commission majority concluded that the
Congress “directly address[ed] the question of whether a
violation of section 314(b) constitutes a violation of a
mandatory safety standard” by placing “section 314(b) []
may seek the Commission’s discretionary review thereof. 29
C.F.R. § 2700.70(a).
6
Although Wolf Run does not contest the proposed penalty, it can
suffer additional adverse consequences from the “significant and
substantial” designation. 30 U.S.C. § 814(d), (e). As noted,
successive “significant and substantial” violations can lead to a
withdrawal order. Id. § 814(e)(1).
7
The criteria include “the operator’s history of previous violations,
the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the effect on
the operator’s ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the operator charged
in attempting to achieve rapid compliance after notification of a
violation.” 30 U.S.C. § 815(b)(1)(B).
7
within the section 3(l) definition of a mandatory safety
standard.” 32 FMSHRC at 1256. Accordingly, the
Commission continued, “[b]ecause a proven violation of a
safeguard notice is necessarily a violation of section 314(b), it
follows that the violation of a safeguard notice is a violation
of a mandatory safety standard and can constitute a
[significant and substantial] violation.” Id. The dissenting
commissioner concluded inter alia that a MSHA inspector
cannot designate a violation of a safeguard notice issued
pursuant to section 314(b) “significant and substantial”
because neither 30 C.F.R. § 75.1403-5(j) nor the safeguard
notice itself falls within the statutory definition of a
mandatory safety standard.
Wolf Run timely filed a petition for review of the
Commission’s decision. The court has jurisdiction pursuant
to section 106(a)(1) of the Mine Act. 30 U.S.C. § 816(a).
II. Analysis
Wolf Run challenges the Commission’s interpretation of
section 314(b) of the Mine Act as authorizing the “significant
and substantial” designation to attach to the violation of a
safeguard notice issued pursuant thereto. “We review the
Commission’s legal conclusions de novo.” Sec’y of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096, 1099 (D.C. Cir.
1998). In matters of statutory interpretation, the court “ ‘must
give effect to the unambiguously expressed intent of
Congress.’ ” Sec’y of Labor ex rel. Bushnell v. Cannelton
Indus., Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989) (quoting
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 843 (1984)). To determine whether the meaning of
a statutory provision is plain, the court’s analysis begins with
“the most traditional tool of statutory construction, [reading]
the text itself.” City of Tacoma v. FERC, 331 F.3d 106, 114
(D.C. Cir. 2003) (internal quotation marks and citation
omitted) (brackets in Tacoma). In deciding whether the text
8
resolves the meaning of a statutory provision, the court
considers “the particular statutory language at issue, as well as
the language and design of the statute as a whole.” Id.
(quoting Halverson v. Slater, 129 F.3d 180, 184 (D.C. Cir.
1997)). If “the statute is silent or ambiguous with respect to
the specific issue,” the court defers to the Secretary’s
interpretation provided the interpretation is “ ‘a permissible
construction of the statute.’ ” Cannelton Indus., 867 F.2d at
1435 (quoting Chevron, 467 U.S. at 843).
As we have previously held, the Mine Act clearly
provides that the “significant and substantial” designation is
limited to a violation of a “mandatory health or safety
standard.” 30 U.S.C. § 814(d)(1); see Cyprus Emerald, 195
F.3d at 44 (“[The Mine Act] unambiguously authorizes a
‘significant and substantial’ finding for violation only of a
mandatory health or safety standard.”). Whether a safeguard
notice issued pursuant to section 314(b) constitutes a
mandatory health or safety standard so that its violation can
support a “significant and substantial” finding is the issue
before us.
A. Section 314(b) Is “Interim Mandatory Safety Standard”
The text of the Mine Act unambiguously establishes that
section 314(b) constitutes an interim mandatory safety
standard. Section 3(l) defines a “mandatory health or safety
standard” as “the interim mandatory health or safety standards
established by [Titles] II and III of this [Act], and the
standards promulgated pursuant to [Title] I of this [Act].” 30
U.S.C. § 802(l). While section 314(b) is not a “standard[]
promulgated pursuant to [Title] I of [the Mine] Act,” it is
plainly an interim mandatory safety standard “established by
[Title] III.”
That section 314(b) constitutes an interim mandatory
safety standard is manifested by the text of section 301(a):
9
The provisions of sections [302] through [318]
of [the Act] shall be interim mandatory safety
standards applicable to all underground coal
mines until superseded in whole or in part by
improved mandatory safety standards . . . and
shall be enforced in the same manner and to
the same extent as any mandatory safety
standard promulgated under [section 101] of
this [Act].
30 U.S.C. § 861(a). As the Secretary has not issued improved
mandatory safety standards for transportation hazards in
underground coal mines, section 314(b) remains an “interim
mandatory safety standard . . . [that] shall be enforced in the
same manner and to the same extent as any mandatory safety
standard.” Id. And while section 314(b) itself does not set
forth specific safeguards, neither section 301(a) nor section
3(l) expressly requires such specificity. 30 U.S.C. §§ 802(l),
861(a).
Enforcing section 314(b) as an interim mandatory safety
standard is also consistent with other mine-specific safety
provisions of the Mine Act that are enforceable as mandatory
safety standards if they are required by, but not listed in, Title
III. United Mine Workers of Am., Int’l Union v. Dole, 870
F.2d 662, 667−70, 672 (D.C. Cir. 1989) (section 302(a) of
Mine Act covering mine-specific roof control plan provisions
required by, but not listed in, section 302(a) is enforceable as
an interim mandatory safety standard). Like the statutory
provision at issue in United Mine Workers, section 314(b)
does not list the specific safeguards that operators must
provide. Nevertheless, treating section 314(b) as an interim
mandatory safety standard, the court concluded, ensures that
the specific safeguards required under section 314(b) “are
enforceable as if they were mandatory standards.” Id. at 667
n.7 (quoting S. Rep. No. 95-181, at 22 (1977), reprinted in
10
1977 U.S.C.C.A.N. 3401, 3425)); see also Zeigler Coal Co. v.
Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976) (interpreting
language in 1969 Federal Coal Mine Safety Act identical to
sections 3(l) and 303(o) of Mine Act to mean mine-specific
plan provisions required by, but not listed in, Title III were
enforceable as “mandatory standard[s]”) (alteration added).
Wolf Run relies on our Cyprus Emerald decision to argue
that a violation of a safeguard notice issued pursuant to
section 314(b) cannot be designated “significant and
substantial.” Neither our decision nor the Commission’s
decision in Cyprus Emerald, however, answers the question
sub judice. Cyprus Emerald dealt with the violation of a
regulation that was promulgated under section 508 of the
Mine Act and therefore did not come within section 3(l)’s
definition of a mandatory health or safety standard because it
was neither promulgated pursuant to Title I nor established by
Title II or Title III of the Mine Act. Cyprus Emerald, 195
F.3d at 43-45; Cyprus Emerald Res. Corp., 20 FMSHRC 790,
799−800 & n.10 (1998). In contrast, this case does involve
the violation of a mandatory safety standard because Wolf
Run, in failing to provide the required safeguard, violated
section 314(b) which is an interim mandatory safety standard
pursuant to sections 301(a) and 3(l) of the Mine Act. Section
314(b) authorizes the Secretary “to create what are, in effect,
mandatory safety standards on a mine-by-mine basis.”
S. Ohio Coal Co. (SOCCO I), 7 FMSHRC 509, 512 (1985)).
Wolf Run’s concerns regarding section 314(b)’s lack of
notice and/or pre-enforcement review are overstated because
section 314(b) itself—as well as the safeguard notice
procedures—give an operator ample notice of what is
required of it. The safeguard notice describes the safeguard
the operator must provide and specifies the time the operator
is given to do so. 30 C.F.R. § 75.1403-1(b); see also
Bethenergy Mines, Inc., 14 FMSHRC 17, 24 (1992) (operator
11
is not bound by criteria guiding issuance of safeguard notice
pursuant to section 314(b) “unless, and until[] that operator is
given notice, in a written safeguard from an authorized
representative of the Secretary, that one or more of the criteria
are applicable to its mine”). Additionally, in order to
minimize the risk of arbitrary enforcement of section 314(b),
the Commission has through adjudication interpreted the
criteria so as to ensure that an operator has adequate notice of
what safeguard is required. S. Ohio Coal Co. (SOCCO II), 14
FMSHRC 1, 12 (1992); SOCCO I, 7 FMSHRC at 512. 8
Moreover, the Congress chose to allow the Secretary to
regulate transportation hazards in underground coal mines on
a mine-by-mine basis; it did not require that such regulation
be subject to formal pre-enforcement review or notice-and-
comment. Compare 30 U.S.C. § 811(a), (d) (providing for
notice-and-comment rulemaking and pre-enforcement judicial
review of mandatory health or safety standards issued
pursuant to Title I) with id. § 874(b) (authorizing Secretary to
impose additional “safeguards” in her discretion). As Wolf
Run did in this case, an operator can seek meaningful review
of a safeguard notice issued pursuant to section 314(b) in the
citation proceeding. See id. § 815. The review process
mirrors that for the review of roof and ventilation plans that,
like safeguard notices issued pursuant to section 314(b), are
8
The Commission requires a safeguard to “identify with specificity
the nature of the hazard at which [the safeguard] is directed and the
conduct required of the operator to remedy such hazard” and
interprets a safeguard based upon “a narrow construction of the
terms of the safeguard and its intended reach.” SOCCO I, 7
FMSHRC at 512. Also, the inspector must issue a safeguard
“based on his evaluation of the specific conditions at a particular
mine and on his determination that such conditions create a
transportation hazard in need of correction.” SOCCO II, 14
FMSHRC at 12.
12
required by, but not listed in, Title III of the Mine Act.
Carbon Cnty. Coal Co., 7 FMSHRC 1367, 1371 (1985)
(review of operator’s challenge to ventilation plan “may be
obtained by the operator’s refusal to adopt the disputed
provision, thus triggering litigation before the Commission”
pursuant to section 109, 30 U.S.C. § 820); see also Zeigler
Coal, 536 F.2d at 406−07 (operator may obtain review of
proposed ventilation plan in citation proceeding after failing
to adopt proposed plan). 9
As the Commission has previously acknowledged, it may
well be that “the safety of underground coal miners would be
better advanced by the promulgation of mandatory safety
standards” that ensure uniform regulation of transportation
hazards for all underground coal mines. SOCCO II, 14
FMSHRC at 16; see also Wolf Run Mining Co., 32 FMSHRC
at 1239−43 (Duffy, Comm’r, dissenting). And as the
dissenting commissioner here observed, “[h]aulage accidents
consistently rank at or near the top of causes for mine
fatalities and serious injuries” and “surface coal miners and
both surface and underground hardrock miners are
protected . . . by comprehensive mandatory transportation and
materials handling standards.” Id. at 1241 (emphasis
added). 10 Nonetheless, section 314(b) is an “unusually broad
9
Wolf Run cites one instance in which an operator allegedly sought
pre-enforcement review of roof control and ventilation plan
provisions but in that case, the operator was not allowed to
challenge the provisions until the citation proceeding. Prairie State
Generating Co., 32 FMSHRC 602, 602 (2010) (MSHA and
operator entered into agreement that allowed operator to begin
operation without approved ventilation plan so long as operator
challenged ventilation plan provisions in citation proceeding
following MSHA inspector’s issuance of citations).
10
The dissenting commissioner reasoned that safeguard notices are
not analogous to the mine-specific safety provisions at issue in
13
grant of regulatory power,” SOCCO I, 7 FMSHRC at 512,
that “manifests a legislative purpose to guard against all
hazards attendant upon haulage and transport in coal mining,”
Jim Walter Res. Inc., 7 FMSHRC 493, 496 (1985).
B. Safeguard Notice Violation Constitutes Violation of Section
314(b)
As discussed supra, section 314(b) is included in Title III
of the Mine Act and Title III establishes interim mandatory
safety standards for underground coal mines that are
enforceable “to the same extent as any mandatory safety
standard promulgated under [Title I].” 30 U.S.C. § 861(a).
Section 314(a) sets forth specific standards for the
transportation of persons in underground coal mines, 30
U.S.C. § 874(a); section 314(b) then provides that “[o]ther
safeguards, adequate in the judgment of an authorized
representative of the Secretary, to minimize hazards with
respect to transportation of men and materials shall be
provided,” 30 U.S.C. § 874(b) (emphasis added). “Other”
plainly refers to the specific safeguards set forth in section
314(a). Wolf Run also argues that the omission of the word
“operator” in section 314(b) means that section 314(b) only
Zeigler Coal because the safeguard notice procedure is different
from the adoption procedures applicable to roof control and
ventilation plans. 32 FMSHRC at 1240−41 (relying on Cyprus
Emerald). He also stresses that regulating the transportation of
persons and materials in underground coal mines through safeguard
notices rather than mandatory safety standards applicable to all
underground coal mines was detrimental to the safety of
underground coal miners. Id. at 1241−42. While his concerns
about the safety of underground coal miners are legitimate, they
relate to a policy choice made by the Congress. The text of the
Mine Act plainly authorizes the Secretary, through MSHA
inspectors, to regulate the transportation of persons and materials in
underground coal mines through safeguard notices.
14
delegates authority to the Secretary through the MSHA
inspectors without also imposing any duty on the operator.
But other subsections of section 314 impose on the operator
the duty to provide safeguards and they also omit the word
“operator.” See, e.g., 30 U.S.C. § 874(a) (“Every hoist used
to transport persons at a coal mine shall be equipped with . . .
stop controls.”); 30 U.S.C. § 874(c) ( “An accurate and
reliable indicator of the position of the cage, platform, skip,
bucket, or cars shall be provided.”); 30 U.S.C. § 874(e)
(“Each locomotive and haulage car used in an underground
coal mine shall be equipped with automatic brakes . . . .”).
And contrary to Wolf Run’s reading, section 314(b) does not
merely “delegate[] authority to individual mine inspectors to
issue notices to provide safeguards.” Appellant’s Br. at 24.
Section 314(b) imposes on the operator the duty to “provide”
those safeguards the inspector deems “adequate . . . to
minimize hazards with respect to transportation of men and
materials.” 30 U.S.C. § 874(b) (emphasis added).
We conclude that section 314(b) is an interim mandatory
safety standard, the violation of which can be designated
“significant and substantial,” Cyprus Emerald, 195 F.3d at 44;
we further conclude that the violation of a safeguard notice
issued pursuant to section 314(b) amounts to a violation of
section 314(b). Accordingly, we deny the petition for review.
So ordered.