Secretary of Labor v. Keystone Coal Min. Corp.
| Decision Date | 21 August 1998 |
| Docket Number | No. 95-1619,95-1619 |
| Citation | 151 F.3d 1096 |
| Parties | , 1998 O.S.H.D. (CCH) P 31,640 SECRETARY OF LABOR, Petitioner, v. KEYSTONE COAL MINING CORPORATION and Federal Mine Safety and Health Review Commission, Respondents, Southern Ohio Coal Company, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission.
Edward D. Sieger, Senior Appellate Attorney, United States Department of Labor, argued the cause for petitioner, with whom J. Davitt McAteer, Acting Solicitor, and Nathaniel I. Spiller, Deputy Associate Solicitor, were on the briefs.
R. Henry Moore argued the cause for respondent Keystone Coal Mining Corporation, with whom Heather A. Wyman was on the brief. Norman M. Gleichman, General Counsel, Mine Safety and Health Review Commission, and Elizabeth Ebner, Attorney Advisor, entered appearances.
Timothy M. Biddle, R. Timothy McCrum, H. Thomas Wells, J. Alan Truitt, Laura E. Beverage, L. Anthony George, R. Henry Moore and Heather A. Wyman were on the brief for intervenors Southern Ohio Coal Company, et al. Gail L. Simmons entered an appearance.
Before: WILLIAMS *, SENTELLE and RANDOLPH, Circuit Judges.
The Secretary of Labor ("Secretary"), on behalf of the Mine Safety and Health Administration ("MSHA"), asks us to reverse a November 1995 decision of the Federal Mine Safety and Health Review Commission ("Commission"), affirming rulings by an Administrative Law Judge ("ALJ") in a case involving citations for alleged tampering with coal dust samples. The ALJ and Commission agreed that the Secretary failed to prove (1) in general, that an "abnormal white center" ("AWC") on a coal dust sample filter warrants an inference of intentional tampering; and (2) in a specific test case, that defendant Keystone Coal Mining Corp. ("Keystone") intentionally tampered with its samples. The Secretary argues that the ALJ and Commission held it to an improperly high burden of proof in the first, common-issues proceeding, and that Keystone's exoneration in the second, case-specific proceeding was not supported by substantial evidence. We affirm the Commission's ruling.
The case involves over 5000 citations, issued to over 500 coal mines, alleging tampering with air filter samples. These citations arose from a nationwide investigation by the Secretary which began in August 1989. The citations issued between April 4 and June 7, 1991, and included 75 citations to Keystone's Urling No. 1 mine ("Urling"). Under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act"), coal mine operators must periodically sample the concentration of respirable coal dust in the mine atmosphere. The tests employ sampling devices and methods prescribed by the Secretary. The devices are all manufactured by the Mine Safety Appliance Company ("MSA"), and involve basically a pump and a filter cassette. The pump pulls air at a defined rate through the filter, where respirable coal dust is deposited. The filters are then sent to MSHA, within 24 hours of collection. In February 1989, MSHA noticed that some filters had unusual light areas in their centers which generally corresponded to the 6mm opening in the cassette. MSHA concluded that these abnormal white centers were likely caused by reverse air flow--specifically, by a person blowing through the cassette opening in order to dislodge dust from the filter and thereby decrease the sample weight. MSHA expanded the investigation to all mine operators in August 1989, thereafter examining all dust samples for AWCs. Hundreds of mines had no AWCs, but 3900 AWC samples (about 6.5% of all samples received) were discovered by March 19, 1990. On March 20, 1990, MSHA introduced the "AWC void code" which officially notified operators that AWC samples would no longer be accepted as sufficient to fulfill the operator's sampling obligations under the Act. Fewer than 1% of the samples submitted after that date exhibited AWCs.
In August 1992, the ALJ consolidated the citations in order to try common issues (the "common issues" proceeding). The relevant issue in this proceeding was whether deliberate conduct was the "only reasonable explanation" for the cited AWCs. After a 47-day hearing, the ALJ decided against the Secretary, finding that case-by-case inquiry into dust sampling and handling procedures was required to determine whether intentional tampering caused AWCs on samples received from each mine. The ALJ selected Keystone's Urling No. 1 mine for a case-specific trial regarding dust sampling and handling practices. After an 18-day hearing, the ALJ vacated the Urling citations, holding that the Secretary had failed to prove that Keystone intentionally altered the weight of the 75 cited filters.
The Secretary sought review of both the common issues and Keystone decisions before the Commission. A divided Commission affirmed on November 29, 1995. In re: Contests of Respirable Dust Sample Alteration Citations, Keystone Coal Mining Corp. v. Secretary of Labor, 17 F.M.S.H.R.C. 1819 (1995). Dissenting Commissioner Marks argued that the ALJ had improperly interpreted MSHA regulations to require proof of intentional alteration (an interpretation not challenged here), and further contended that the ALJ had improperly "required the Government to prove that the only cause of the AWCs was intentional conduct, to the exclusion of all other causes! " (emphasis in original). Commissioner Marks would have held that the Secretary had presented sufficient evidence to prevail in both the common-issues and the Keystone proceedings, and that the ALJ's conclusions to the contrary were not supported by substantial evidence. We review the Commission's legal conclusions de novo, Donovan ex rel. Anderson v. Stafford Constr. Co., 732 F.2d 954, 958 (D.C.Cir.1984), and its findings of fact for substantial evidence, 30 U.S.C. §§ 816(a)(1), (b).
The Secretary argues that in the common issues proceeding, the Commission and the ALJ erred as a matter of law by requiring a standard of proof higher than a preponderance of the evidence for the proposition that the presence of an AWC allowed an inference of intentional tampering. With respect to the Keystone mine-specific proceeding, the Secretary asserts that the Commission and the ALJ applied an improperly strict burden of proof and that the findings were not supported by substantial evidence.
In the common issues proceeding, the Secretary attempted to prove via statistical evidence that the presence of an AWC, without more, established intentional tampering with the sampling device. Such a finding would have led to a presumption that illegal tampering occurred whenever an AWC was found, perhaps subject to rebuttal by an individual operator who could show that other factors (for example, its handling of filters) caused the AWC in a specific case.
The ALJ held that to prevail the Secretary must prove by a preponderance of the evidence that (1) the AWC definition had a coherent meaning and was consistently applied; (2) the cited AWCs could only result from intentional acts; and (3) the AWCs resulted in weight losses in the cited filters. Although concluding that any inconsistencies in applying the AWC definition were insignificant and that an AWC did result in weight loss, the ALJ found several potential causes of AWCs and received a wide range of expert opinion on the likelihood of each possibility. For example, AWCs could be caused by tampering, by impact to the cassette, by impact to the air hose, or by snapping together the cassette. The ALJ also found that the likelihood of generating an AWC by nonintentional causes depended upon filter manufacturing characteristics (filter-to-foil distance and filter floppiness), hose pliability, mine and dust characteristics (including type of coal, humidity, weight of dust on the filter, size and shape of particles, and quantity of rock dust or diesel dust on the filter), and cassette population (certain batches of cassettes manufactured by MSA had a greater likelihood of experiencing AWCs, as did all cassettes manufactured before Jan. 1, 1990). Thus, the non-random distribution of AWCs across the mining industry could have been related to tampering at certain mines, but also could have been related to characteristics of certain mine environments or operators' handling techniques.
Therefore, even though the Secretary's statistical evidence demonstrated that AWCs did not occur randomly, the ALJ held that the Secretary had failed to prove that those AWCs were indeed caused by intentional tampering. The Secretary's analysis failed to account for potential accidental causes, manufacturing variables, and mine environment variables. Further, even though the Secretary introduced evidence showing a sharp decline in the number of cited AWCs in late March, 1990, a date which correlated with the announcement of the "AWC Void Code," the ALJ held that the Secretary had failed to prove that the decline was caused by mine operators responding to that announcement. Thus, the ALJ concluded that the Secretary had "failed to carry [her] burden of proving by a preponderance of the evidence that an AWC on a cited filter establishes that the mine operator intentionally altered the weight of the filter."
The Secretary first contends, as she did before the Commission, that the ALJ imposed an improper burden of proof in this ruling, despite the "preponderance of the evidence" language in both opinions. The Secretary argues that the ALJ erred by requiring proof that "the cited AWCs can only have resulted from intentional acts," Brief for the Secretary of Labor ("Petitioner's Brief") at 41 (emphasis added), or that deliberate conduct "is the only reasonable explanation for the cited AWCs," id. (emphasis added). Instead, she contends that she "should...
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