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12/06/88 Emerald Mines Co., v. Federal Mine Safety and

December 6, 1988

EMERALD MINES CO., PETITIONER

v.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION AND THE SECRETARY OF LABOR, RESPONDENTS AND UNITED MINE



Ruth B. Ginsburg, Silberman and Douglas H. Ginsburg, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

WORKERS OF AMERICA, INTERVENOR 1988.CDC.447

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

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GINSBURG

Petitioner Emerald Mines Company (Emerald) seeks review of a Federal Mine Safety and Health Review Commission (FMSHRC or Commission) decision interpreting section 104(d) of the Federal Mine Safety and Health Act of 1977 (Mine Act or 1977 Act). The Secretary of Labor (Secretary) issued a citation to Emerald under that section. Emerald challenges the citation on the ground that section 104(d) applies only when an inspector actually observes a violation, not when the inspector investigates a site after the violation has occurred. We find the Commission's decision upholding the citation rational and consistent with the statute; accordingly, we deny the petition for review. I. BACKGROUND

The 1977 Mine Act amended the Federal Coal Mine Health and Safety Act of 1969 (Coal Act or 1969 Act). Section 104 of this legislation, designed to check violations of health and safety standards, directs and controls the issuance of citations to mine operators. Section 104(a) of the 1977 Act provides: "If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine . . . has violated this Act, . . . he shall, with reasonable promptness, issue a citation to the operator." 30 U.S.C. § 814(a) (1982). Section 104(d)(1) provides further instructions for certain grave violations caused by "unwarrantable failures":

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 imminent danger, such violation is of such nature as could significantly and substantially contribute to . . . 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 Act. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation . . . to be also caused by an unwarrantable failure . . ., he shall forthwith issue an order requiring the operator to cause all persons in the area affected . . . to be withdrawn . . . until . . . such violation has been abated.

Id. § 814(d)(1). Once a withdrawal order issues pursuant to the above-quoted instruction, section 104(d)(2) comes into play, and any subsequent "unwarrantable failure" results in another withdrawal order until "an inspection of such mine discloses no similar violations" and thereby returns the mine clean to the section 104(d)(1) regime. Id. 814(d)(2). Section 107(a) compatibly prescribes that if "upon any inspection or investigation of a coal or other mine . . . an authorized representative of the Secretary finds that an imminent danger exists," the representative shall issue a withdrawal order. Id. § 817(a).

Section 103 provides for inspections by authorized representatives of the Secretary; section 103(g), in particular, a calls for "an immediate inspection" whenever a miner or representative of the miners "has reasonable grounds to believe that a violation . . . or an imminent danger exists." Id. § 813(g). On July 30, 1985, an inspector received a section 103(g) request, which alleged that there had been an accumulation of methane at an Emerald mine and that the foreman had failed to take appropriate action. Joint Appendix at 145. On July 31 and August 1, the inspector visited the mine, tested the methane monitor, reviewed the methane detector records, and interviewed miners. He determined that on July 29, following the detection of excessive methane levels at Emerald Mine No. 1, the "continuous miner" equipment was not "immediately de-energized." Under the applicable safety standard, 30 C.F.R. § 75.308 (1988), the power to the equipment should have been cut off at once. For Emerald's July 29 violation of the safety standard, the inspector, on August 8, issued a section 104(a) citation. J.A. at 7.

On August 23, the inspector amended the citation to place it under section 104(d). J.A. at 8. Emerald contested this change. An administrative law judge sustained Emerald's objection. The ALJ concluded that an unwarrantable failure finding must rest on an actual observation of the violation, rather than on an investigation performed after the fact. Emerald Mines Corp. v. Secretary of Labor, 8 F.M.S.H.R.C. 324, 328 (A.L.J. 1986). Intervenor United Mine Workers of America filed a petition for review, and the Commission reversed. 9 F.M.S.H.R.C. 1590 (Rev. Comm'n 1987). For the reasons stated in Nacco Mining Co. v. Secretary of Labor, 9 F.M.S.H.R.C. 1541 (Rev. Comm'n 1987), issued the same day, the Commission held that section 104(d) permitted an unwarrantable failure citation under the circumstances presented here. Emerald petitions this court for review. II. ARGUMENT

Emerald challenges an agency decision that is entitled to the deference described in Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). As this court stated in Simpson v. FMSHRC, 268 U.S. App. D.C. 457, 842 F.2d 453 (D.C. Cir. 1988):

Where the Mine Act is "silent or ambiguous with respect to the specific issue," . . . we generally need ask only whether the FMSHRC's interpretation is "rational and consistent with the statute," . . . according deference to "reasonably defensible" constructions of the Mine Act by the Commission. *fn1

The respect due to FMSHRC is heightened in this case because the Secretary agrees with the Commission. See id. at 462-63; S. Rep. No. 181, 95th Cong., 1st Sess. 49 1977 (Secretary's interpretation of the Mine Act should be given weight by the courts).

Emerald plausibly demonstrates no more than that the statutory text is ambiguous, and the legislative history, inconclusive. It appears that Congress did not advert specifically to this particular issue, i.e., whether an unwarrantable failure finding under section 104(d) can be based upon an abated violation. In reviewing agency interpretations of the legislation in question, however, this court has been guided by Congress' broad safety-forcing goals. United Mine Workers v. Mine Safety and Health Admin., 262 U.S. App. D.C. 200, 823 F.2d 608, 617 (D.C. Cir. 1987); United Mine Workers v. Kleppe, 174 U.S. App. D.C. 328, 532 F.2d 1403, 1406 (D.C. Cir.) (discussing the unwarrantable failure provision in particular), cert. denied, 429 U.S. 85897 S. Ct. 157, 50 L. Ed. 2d 135 (1976); see S. Rep. No. ...


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