195 F.3d 42 (D.C. Cir. 1999), 98-1442, Cyprus Emerald Corp v. Fed. Mine Safety & Health Comm'n

Docket Nº:98-1442 and 98-1548
Citation:195 F.3d 42
Party Name:Cyprus Emerald Resources Corporation, Petitioner v. Federal Mine Safety and Health Review Commission and Secretary of Labor, Respondents
Case Date:November 05, 1999
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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195 F.3d 42 (D.C. Cir. 1999)

Cyprus Emerald Resources Corporation, Petitioner

v.

Federal Mine Safety and Health Review Commission and Secretary of Labor, Respondents

Nos. 98-1442 and 98-1548

United States Court of Appeals, District of Columbia Circuit

November 5, 1999

Argued September 17, 1999

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

R. Henry Moore argued the cause for the petitioner. Heather A. Wyman entered an appearance.

Colleen A. Geraghty, Attorney, United States Department of Labor, argued the cause for the respondents. W. Christian Schumann, Counsel, United States Department of Labor, was on brief. Norman M. Gleichman, General Counsel, Mine Safety and Health Review Commission, and Robin A. Rosenbluth, Attorney, United States Department of Labor, entered appearances.

Before: Ginsburg, Henderson and Randolph, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Concurring opinion filed by Circuit Judge Randolph.

Karen LeCraft Henderson, Circuit Judge:

Section 104(d)(1) of the Federal Mine Safety and Health Act of 1977 (Act) provides in part:

If, upon any inspection of a coal or other mine, an authorized representative of the Secretary [of Labor] 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 causeimminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of 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 chapter.

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. See 30 U.S.C. § 814(d), (e).1 RAG Emerald Resources Corp. (Emerald), formerly known as Cyprus Emerald Resources Corp., petitions for review of a Federal Mine Safety Health Review Commission (FMSHRC, Commission) decision upholding a finding that Emerald's violation of 30 C.F.R. § 50.11(b) (50.11(b)) was "significant and substantial." Secretary of Labor v. Cyprus Emerald Resources Corp., 20 F.M.S.H.R.C. 790 (1998). Emerald had challenged the finding on the ground that the plain language of section 104(d)(1) precludes designation of the 50.11(b) violation as "significant and substantial" because 50.11(b) is not "a mandatory health or safety standard" as section 104(d)(1) requires.2 The Commission determined that

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the statute is ambiguous on the subject and that the Commission could therefore reasonably construe the statutory language to permit such a finding. The Commission was wrong. Section 104(d) unambiguously authorizes a "significant and substantial" finding for violation only of a mandatory health or safety standard. We therefore hold that a "significant and substantial" finding is permissible in a citation charging violation of a mandatory safety or health standard only3 and, accordingly, grant Emerald's petition for review.

I.

Emerald operates a coal mine and processing plant in Greene County, Pennsylvania. Refuse from the plant is ordinarily used to build up a nearby impoundment embankment pursuant to a disposal plan approved by the Mine Safety and Health Administration (FMSHA) in 1983. When road or weather conditions prevent hauling refuse to the impoundment, Emerald takes it to a "short-haul" area closer to the processing plant. On April 2, 1993 FMSHA received a complaint that part of a short-haul refuse pile had collapsed and slipped into a "slurry pond."4 An FMSHA inspector issued an "imminent danger" withdrawal order pursuant to section 107(a) of the Act, 30 U.S.C. § 817(a),5 and upon a subsequent inspection issued three citations charging "significant and substantial" and "unwarrantable" violations of mandatory safety standards (30 C.F.R. §§ 77.215(f), 77.215(h) and 77.1608(b)) under section 104(d)(1) for improperly construct-ing and using vehicles in the refuse pile. During his investigation, the inspector learned of a previous refuse pile collapse on December 27, 1992, for which the inspector also issued citations alleging "significant and substantial" and "unwarrantable" violations of the same standards. In addition, he issued citations for violating two additional regulations that are not mandatory standards: 30 C.F.R. § 50.10, for failing to notify FMSHA of the earlier collapse, and 30 U.S.C. § 50.11(b), for failing to investigate the collapse. The inspector designated the 50.11(b) violation as "significant and substantial."

After conducting a hearing, the administrative law judge issued a decision dated November 29, 1995 upholding each of Emerald's citations. Secretary of Labor v. Cyprus Emerald Resources Corp., 17 F.M.S.H.R.C. 2086 (1995). In the decision, the judge specifically concluded that violation of a regulation such as 50.11(b), which is not a mandatory standard, may be designated "significant and substantial."6

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Emerald petitioned the Commission to review the judge's decision.

In a decision dated August 24, 1998 the Commission, inter alia, upheld the Secretary's designation of the 50.11(b) violation as "significant and substantial." The three-commissioner majority concluded that section 104 was ambiguous on the issue and could therefore be construed to permit "significant and substantial" designation of such a violation.7 Emerald petitioned for review of the Commission's decision.

II.

The outcome of this proceeding rests on the interpretation of the single statutory sentence quoted above and repeated here:

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 the cause and effect of 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 chapter.

30 U.S.C. § 814(d)(1) (emphasis added). If in drafting this provision " 'Congress has directly...

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