Utah Power & Light Co. v. Secretary of Labor

Citation897 F.2d 447
Decision Date26 February 1990
Docket NumberNos. 88-1655,88-1659,s. 88-1655
Parties, 1990 O.S.H.D. (CCH) P 28,835 UTAH POWER & LIGHT COMPANY, Substituted for Emery Mining Corporation, Petitioner, v. SECRETARY OF LABOR, Federal Mine & Safety Review Commission, Respondents, United Mine Workers of America, Intervenor. American Mining Congress, Amicus Curiae.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

John A. Macleod, Thomas C. Means, and Ellen B. Moran, Crowell & Moring, Washington, D.C., for petitioner.

George R. Salem, Solicitor of Labor, Edward P. Clair, Associate Sol., Dennis D. Clark, Counsel, Appellate Litigation, and Barry F. Wisor, Atty., U.S. Dept. of Labor, Arlington, Va., for respondent.

Michael H. Holland, and Mary Lu Jordan, Washington, D.C., for intervenor.

Charles W. Newcom, and Susan K. Grebeldinger, Sherman & Howard, Denver, Colorado, Edward M. Green, and Mark G. Ellis, American Mining Congress, Washington, D.C., filed an amicus curiae Brief for American Min. Congress.

Before TACHA, BALDOCK, and BRORBY, Circuit Judges.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cases are therefore ordered submitted without oral argument.

These cases present two issues of first impression in this circuit:

1. Whether walkaround rights established in Sec. 103(f) of the Federal Mine Health and Safety Act of 1977 (Act), 30 U.S.C. Sec. 813(f), extend to miners' representatives who are not employees of the mine operator?

2. Whether a miners' representative seeking to exercise walkaround rights under Sec. 103(f) of the Act must first comply with the requirements of 30 C.F.R., Part 40?

The Federal Mine Safety and Health Review Commission (Commission) answered the first question in the affirmative and the second in the negative. We affirm on the first issue and reverse on the second.

On the morning of April 15, 1986, Vern Boston, a Mine Safety and Health Administration (MSHA) inspector, arrived at the Deer Creek Mine, an underground coal mine in Utah, to conduct an inspection. Deer Creek Mine was owned by Utah Power & Light Co. (UPL) and operated by Emery Mining Corporation (Emery). Inspector Boston was met at the gates of the mine by Tom Rabbitt, a member of the International Health and Safety Department of the United Mine Workers of America (UMWA), who introduced himself to the inspector and asked to accompany him on the inspection.

Boston agreed that Rabbitt could accompany him on the inspection, and he and Rabbitt entered the premises to get clearance for Rabbitt. The mine manager, Earl White, met with Rabbitt and told him he could enter the mine pursuant to the collective bargaining agreement with the UMWA but for the fact that he had not given the twenty-four hour advance notice required by Emery. Rabbitt then said he was seeking entrance under Sec. 103(f) of the Act, which provides for walkaround rights. 1

White, Rabbitt, and Boston discussed the scope of walkaround rights under Sec. 103(f). White was of the opinion that since Rabbitt was not an Emery employee, he had no walkaround rights under the Act. Boston disagreed, saying that Rabbitt had walkaround rights because he was a member of the UMWA International. Boston then wrote White a citation under Sec. 104(a) of the Act, 30 U.S.C. Sec. 814(a), for violating Sec. 103(f). He gave White ten minutes to abate the violation.

White, fearing that Boston might issue a withdrawal order if White did not abate the violation, agreed to let Rabbitt participate in the inspection, but said he must first sign a hazard recognition and waiver of liability form that Emery required nonemployees to sign before entering the mine. Rabbitt refused to sign the form. Boston then called his supervisor, who was not familiar with Emery's waiver form. Based on his belief that a representative of the UMWA International had an unlimited right of access to a mine under Sec. 103(f), the supervisor instructed Boston to proceed with Rabbitt on the inspection. Boston then informed White that his refusal to permit Rabbitt to participate in the inspection unless Rabbitt signed a waiver of liability was in violation of Sec. 103(f). Boston added a second violation of Sec. 103(f) to the original citation.

Thereafter, White agreed to abate the alleged violation by allowing Rabbitt to accompany the inspector without signing the waiver of liability. The inspection party, consisting of Boston, Rabbitt, Mark Larsen, a representative of miners from the safety committee, and Terry Jordan and Dixon Peacock, representatives of Emery, then proceeded underground.

On April 17, 1986, pursuant to Sec. 105(d) of the Act, 30 U.S.C. Sec. 815(d), Emery filed a notice of contest of the citation issued April 15, 1986. Shortly thereafter, the UMWA moved to intervene in the proceedings. On April 24, 1986, Emery's contract with UPL was terminated and UPL took over the operation of its mines, including the Deer Creek Mine. UPL subsequently received three more citations from the MSHA for violations of Sec. 103(f) similar to Emery's. UPL filed a timely notice of contest with respect to each citation. The parties agreed to try the citation issued to Emery and to have the administrative law judge's (ALJ) ruling on that citation control the disposition of the three citations issued to UPL.

The ALJ held an evidentiary hearing on May 14 and 15, 1986. The issues before him were the two under consideration in this appeal, as well as a third, concerning whether an operator can require a nonemployee representative of miners to sign a waiver of liability before exercising walkaround rights. On August 7, 1986, the ALJ ruled against Emery on all three issues. Emery Mining Corp., 8 F.M.S.H.R.C. 1192 (1986).

Thereafter, the Commission granted discretionary review of the ALJ's decision pursuant to 30 U.S.C. Sec. 823(d)(2)(A)(i). After briefing and oral arguments, the Commission issued its decision on Emery's citation on March 29, 1988. Emery Mining Corp., 10 F.M.S.H.R.C. 276 (1988). The Commission also issued a consolidated summary opinion on UPL's three citations the same day. Utah Power & Light Co., 10 F.M.S.H.R.C. 302 (1988). The Commission affirmed the ALJ on the first two issues and reversed him on the third issue concerning the waiver of liability.

Emery and UPL petitioned this court for review of the Commission's decisions pursuant to Sec. 106(a) of the Act, 30 U.S.C. Sec. 816(a). They challenge the Commission's rulings with respect to nonemployee walkaround rights and compliance with the requirements of 30 C.F.R., Part 40. We consolidated the petitions under the caption Utah Power & Light Co. v. Secretary of Labor. Since UPL has been substituted for Emery on appeal, we will refer to the arguments of UPL hereinafter.

I.

We first address UPL's contention that Sec. 103(f) walkaround rights do not extend to nonemployee representatives of miners. In reviewing the interpretation of Sec. 103(f) asserted by the Secretary of Labor (Secretary) and the Commission, we are mindful of the United States Supreme Court's directions in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Id. at 842-43, 104 S.Ct. at 2781-82 (footnotes omitted).

We have held that an agency's interpretation of a statute entrusted to that agency for administration should be accepted if it is a reasonable one, even if another interpretation may exist that is equally reasonable. Jones v. Federal Deposit Ins. Corp., 748 F.2d 1400, 1405 (10th Cir.1984); Brennan v. Occupational Safety and Health Comm'n, 513 F.2d 553, 554 (10th Cir.1975).

Congress did not speak to the precise issue before us when it drafted Sec. 103(f) of the Act. Nonetheless, we, like the Commission, find the language of Sec. 103(f) dispositive. See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980) ("[T]he starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive."); Colorado Property Acquisitions, Inc. v. United States, 894 F.2d 1173, 1174 (10th Cir.1990) ("When the meaning of a statute is clear from its face, resort to rules of statutory construction or legislative intent is unnecessary.").

The first sentence of Sec. 103(f) provides that "a representative authorized by [the operator's] miners shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any coal or other mine made pursuant to the provisions of subsection (a) of this section." This sentence confers upon the miners the right to authorize a representative for walkaround purposes without any limitation on the employment status of the representative. See Council of S. Mountains, Inc. v. Federal Mine Safety and Health Review Comm'n, 751 F.2d 1418, 1421 n. 18 (D.C.Cir.1985) ("The Mine Act,...

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