Secretary of Labor, Mine Safety and Health Admin. v. Western Fuels-Utah, Inc.

Decision Date06 April 1990
Docket NumberNo. 89-1258,FUELS-UTA,INC,89-1258
Citation283 U.S. App DC 334,900 F.2d 318
Parties, 1990 O.S.H.D. (CCH) P 28,881 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, Petitioner, v. WESTERN, and Federal Mine Safety and Health Review Commission, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

Jerald S. Feingold, Atty., Dept. of Labor, for petitioner. Dennis D. Clark, Atty., Dept. of Labor, Washington, D.C., also entered an appearance for petitioner.

Karl F. Anuta, Boulder, Colo., for respondent, Western Fuels-Utah, Inc.

L. Joseph Ferrara, Atty., Federal Mine Safety and Health Review Com'n, entered an appearance, for respondents, Federal Mine Safety and Health Review Com'n.

Before WALD, Chief Judge, and MIKVA and EDWARDS, Circuit judges.

Opinion for the Court filed by Chief Judge WALD.

Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.

WALD, Chief Judge:

The Secretary of Labor, Mine Safety and Health Administration ("Secretary") petitions for review of a Federal Mine Safety and Health Review Commission ("FMSHRC" or "Commission") decision vacating an order and citation issued to Western Fuels-Utah, Inc. ("Western Fuels") for failure to task train one of its foremen in the operation of a roof bolting machine. We grant the petition and reverse the Commission's decision.

I. BACKGROUND
A. Statute and Regulations

Section 115(a) of the Federal Mine Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. Sec. 825(a), provides a comprehensive scheme for the training of miners. In general, Sec. 115(a) requires training for new miners, annual refresher training and task training. With regard to task training, Sec. 115(a) provides in relevant part:

(4) any miner who is reassigned to a new task in which he has had no previous work experience shall receive training in accordance with a training plan approved by the Secretary under this subsection in the safety and health aspects specific to that task prior to performing that task.

The Secretary of Labor's regulations implementing Sec. 115(a) are set forth at 30 C.F.R. Part 48. With regard to task training for miners working in underground coal mines, 30 C.F.R. Sec. 48.7(a) states in pertinent part:

Miners assigned to new work tasks as mobile equipment operators, drilling machine operators, haulage and conveyor systems operators, roof and ground control machine operators, and those in blasting operations shall not perform new work tasks in these categories until training prescribed in this paragraph and paragraph (b) of this section has been completed.

Task training is required under Sec. 48.7(a) of any miner who has not been trained on the task in question within the preceding 12 months.

The training requirements of Sec. 48.7(a), are applicable to "miners" working in the underground mines. 30 C.F.R. Sec. 48.1. 30 C.F.R. Sec. 48.2(a)(1) provides in relevant part:

"Miner" means, for purposes of Secs. 48.3 through 48.10 of this Subpart A [Training and Retraining of Underground Miners], any person working in an underground mine and who is engaged in the extraction and production process, or who is regularly exposed to mine hazards, or who is a maintenance or service worker contracted by the operator to work at the mine for frequent or extended periods. This definition shall include the operator if the operator works underground on a continuing, even if irregular basis.... This definition does not include:

(ii) Supervisory personnel subject to MSHA approved State certification requirements.

B. Facts

While working as a section foreman at Western Fuels' Deserado Mine, an underground coal mine in Colorado, Carson Julius ordered one of two workmen operating a two-man roof bolting machine to go to lunch. Julius took over for the departing workman. While Julius and the other worker, Austin Mullens, were operating the roof bolting machine, an accident occurred and Austin Mullens was killed.

After investigating the accident, the Mine Safety and Health Administration ("MSHA") determined that Julius had not been task trained to operate the roof bolting machine during the 12 months preceding the accident. Consequently, the MSHA inspector issued an order pursuant to Secs. 104(a) and 104(g)(1) of the Act alleging a violation of 30 C.F.R. Sec. 48.7. Western Fuels abated the order by task training Julius to operate a roof bolting machine.

C. Procedural History

Western Fuels contested the order and citation before the FMSHRC. The Secretary filed a petition with the FMSHRC for a civil penalty for the violation set forth in the order and citation. The Administrative Law Judge ("ALJ") found for the Secretary, holding that the "supervisory personnel" exception to task training of 30 C.F.R. Sec. 48.2(a)(1)(ii) does not apply to a person who may otherwise be assigned to supervisory activities when that person is engaged in the operation of mine equipment machinery, such as a roof bolting machine.

The Commission reversed the ALJ, stating that the ALJ's decision could not be squared with what it viewed as "the plain, unambiguous language of section 48.2(a)(1)(ii).... The exclusion of 'supervisory personnel' from the definition of 'miner' in section 48.2(a)(ii) has a plain meaning apparent from any reasonable reading of the regulation. The term 'supervisory personnel' means individuals who are supervisors." Thus, the Commission held that such supervisors are exempted from the task training requirements regardless of whether they are acting in a supervisory capacity or are merely performing operations in lieu of ordinary miners.

II. ANALYSIS

The Secretary argues that the Commission erred in holding that the meaning of the supervisory personnel exception of Sec. 48.2(a)(ii) is plain. She contends that the scope of the regulatory exemption is not clear from the regulatory language and that since her interpretation is reasonable we must defer to it. We agree.

As the Tenth Circuit explained in Emery Mining Co. v. Secretary of Labor, Mine Safety and Health Administration, 744 F.2d 1411, 1414 (10th Cir.1984), "a regulation must be interpreted so as to harmonize with and further and not to conflict with the objective of the statute it implements. [Courts] must construe [regulations] in light of the statutethey] implement[ ], keeping in mind that where there is an interpretation of an ambiguous regulation which is reasonable and consistent with the statute, that interpretation is to be preferred." (Citations omitted.) The Secretary's interpretation of Sec. 48.2's "supervisory personnel" exception as applying only to supervisors when they are functioning as such and not when they are working as miners harmonizes with the Mine Act's objective as it pertains to the training of miners.

Section 115(a) of the Mine Act is intended to insure that miners will be effectively trained in matters affecting their health and safety, with the ultimate goal of reducing the frequency and severity of injuries in mines. 43 Fed.Reg. 47,454 (October 13, 1978). Indeed, Congress considered training to be of such great importance that it specifically empowered inspectors to withdraw untrained miners from the mines and to prohibit their reentry until they received proper training. 30 U.S.C. Sec. 814(g).

Moreover, the affidavit of John C. English, former Director of MSHA's Office of Education and Policy Development, attests to the fact that supervisors untrained as miners but doing miners' work are responsible for a majority of mine fatalities. According to English, data analysis shows that the average fatality rate for supervisors exceeded that for miners in general by 0.13 to 0.09, respectively, per 200,000 employee hours worked from 1972 to 1977 and 0.10 to 0.06 from 1978 to 1980. Additionally, of the coal mine supervisory fatalities from 1973 through 1983, about 59% of them occurred while the victim was performing nonsupervisory tasks. Appendix ("App.") at 37. English concludes by noting that "[i]nstances where 'supervisors' spend a significant amount of time mining rather than supervising continue to come to MSHA's attention.... In the first half of 1986, supervisors were in the most hazardous mining occupation group, accounting for more than 25% of the total fatalities; once again of the supervisory fatals, the majority had been performing nonsupervisory tasks." App. at 41. These statistics make clear that the Secretary's interpretation of Sec. 48.2's "supervisory personnel" exemption from task training harmonizes with the objective of Sec. 115 of the Act; Western Fuels' interpretation does not. 1

But even if Western Fuels' interpretation were equally consistent with the statutory objectives of Sec. 115, we would still be compelled to defer to the Secretary. Indeed while Western Fuels' facial reading of Sec. 48.2's "supervisory personnel" exemption is reasonable, so is the Secretary's, and we have explained that "when the Secretary and the Commission disagree on the interpretation of ambiguous provisions of the Mine Act, and both present plausible readings of the legislative text, this court owes deference to the Secretary's interpretation." Secretary of Labor, Mine Safety and Health Administration, on behalf of Bushnell v. Cannelton, 867 F.2d 1432, 1433 (D.C.Cir.1989). And we added that "[t]he Secretary is emphatically due this respect when she interprets her own regulations." Id. at 1435. Moreover, it is well-settled that an agency's interpretation of its own regulation is "of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). See also United States v. Larionoff, 431 U.S. 864, 872-73, 97 S.Ct. 2150, 2155-56, 53 L.Ed.2d 48 (1977) (since agency's interpretation is not plainly inconsistent with the wording of the regulation it is due deference even though the regulation "contains a number of...

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