Clinchfield Coal Co. v. Federal Mine Safety and Health Review Com'n

• Decision Date: 12 April 1990
• Docket Number: No. 88-1873,88-1873
• Citation: 895 F.2d 773
• Parties: , 1990 O.S.H.D. (CCH) P 28,818 CLINCHFIELD COAL COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondent, United Mine Workers of America, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 773

895 F.2d 773

282 U.S.App.D.C. 368, 1990 O.S.H.D. (CCH) P 28,818

CLINCHFIELD COAL COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondent, United Mine Workers of America, Intervenor.

No. 88-1873.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 23, 1989.

Decided Feb. 9, 1990.

Rehearing Denied April 12, 1990.

John T. Scott, III, with whom Timothy M. Biddle, Washington, D.C., was on the brief, for petitioner.

Mary Lu Jordan, for intervenor.

L. Joseph Ferrara, Federal Mine Safety and Health Review Com'n and Dennis D. Clark, Counsel, Dept. of Labor, Washington, D.C., entered appearances for respondent.

Before MIKVA, EDWARDS and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

The Federal Mine Safety and Health Review Commission has directed the petitioner, a coal mine operator, to pay one week's salary, plus interest, to employees idled by a government-ordered shutdown later tied to the operator's health and safety violations. We uphold the Commission's rulings on both liability and interest.

A

Late in the evening of June 21, 1983, an explosion killed seven miners and injured three others at Clinchfield's McClure mine in Dickerson County, Virginia. At 3:42 a.m. on June 22, an inspector of the Department of Labor's Mine Safety and Health Administration ("MSHA") issued a "safety order" under Sec. 103(k) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. Sec. 813(k) (1982), restricting access to officials and others needed for investigation of the event. Eighteen minutes later, the same inspector issued a "withdrawal order" under Sec. 107(a), 30 U.S.C. Sec. 817(a), which authorizes shutdown of a mine upon discovery of an "imminent danger." MSHA terminated the Sec. 107(a) order on July 18 and the Sec. 103(k) order on August 8, 1983. The mine evidently then resumed full operations. In March 1984, after conducting an investigation, MSHA issued citations to Clinchfield under Sec. 104(d)(1), 30 U.S.C. Sec. 814(d)(1), for several safety violations that it found caused the explosion.

By that time the United Mine Workers had already filed a claim with the Commission under Sec. 111 of the Act, seeking compensation for the idled miners. The third and controlling sentence of Sec. 111 allows compensation of up to one-week's pay:

If a coal or other mine or area of such mine is closed by an order issued under Sec. 104 [30 U.S.C. Sec. 814] or Sec. 107 [30 U.S.C. Sec. 817] of this title for a failure of the operator to comply with any mandatory health or safety standards, all miners who are idled due to such order shall be fully compensated after all interested parties are given an opportunity for a public hearing, which shall be expedited in such cases, and after such order is final, by the operator for lost time at their regular rates of pay for such time as the miners are idled by such closing, or for one week, whichever is the lesser.

30 U.S.C. Sec. 821 (1982) (emphasis added). The Commission ruled in favor of the UMW, relying on its reasoning in a similar case decided the same day, UMWA v. Westmoreland Coal Co., 8 FMSHRC 1317 (1986). It concluded that this "one-week" provision of Sec. 111 may apply even where the Sec. 107 order is not the sole cause of the mine's closing, so long as the order had a "concurrent" mine-closing effect ("like 'a second padlock on the door' "). Further, even where the Sec. 107 order does not itself allege a safety violation, the Commission will award compensation if violations later cited by MSHA caused the imminent danger underlying the Sec. 107 order. UMWA v. Clinchfield Coal Co., 8 FMSHRC 1310 (1986). The parties stipulated the existence of the required causal relation between the violations and the shutdown, and the Commission reaffirmed its initial ruling in later ordering payment of a week's wages, plus interest. UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988). Clinchfield filed a timely appeal.

B

Clinchfield's first objection is that because the mine was initially closed with a Sec. 103 order, the claimants cannot meet Sec. 111's requirement that miners have been "idled due to" a Sec. 104 or Sec. 107 order. This contention we may dismiss out of hand. Except for the eighteen-minute interval separating MSHA action under the two sections, the miners were no less idled by the Sec. 107 order than by the corresponding action under Sec. 103. Perhaps the words could be taken to mean "idled initially and exclusively due to" a Sec. 104 or Sec. 107 order. But that is not what the statute says. It is at least ambiguous on the issue, and thus we must uphold the agency's decision so long as we find it a " 'reasonably defensible' construction[ ] of the Mine Act." Emerald Mines Co. v. FMSHRC, 863 F.2d 51, 53 (D.C.Cir.1988) (quoting Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C.Cir.1988)).

We have no trouble doing so here. No party has adduced any legislative history even arguably constraining the open-ended tenor of the statutory language. Although the contrary conclusion might be defensible, the Commission's ruling seems not only reasonable but in fact the better reading. Where fault is found with the mine operator, workers whose mines are shut under Sec. 103(k) because a danger has already been partly realized (i.e., an accident has happened) should not be any less entitled to a week's pay than those kept home by a danger that is only "imminent" under Sec. 107. But whenever MSHA uses Sec. 103 to take immediate and full control of a mine in emergency circumstances, that is exactly what would result from Clinchfield's view. See UMWA v. Westmoreland Coal Co., 8 FMSHRC 1317, 1326 & n. 4 (1986).

Clinchfield's second objection is that the Sec. 111 claim must fail because the Sec. 107 order itself specified no safety violation on the mine operator's part. This issue turns on the meaning of "issued ... for a failure of the operator to comply with any mandatory health or safety standards." 30 U.S.C. Sec. 821 (emphasis added). The language itself does not settle the matter, as even Clinchfield seems to concede. See Clinchfield Brief 4 ("All it [the UMWA] offers ... is a dictionary definition of 'for' to mean 'because or by reason of; on account of.' This begs the issue, for the definition can just as easily be read to mean that the order must itself allege a violation.") (emphasis added). Nor has any party produced illuminating legislative history.

We can see nothing unreasonable in the Commission's reading of the word "for" to require one-week compensation where there is a "causal nexus" between a Sec. 107(a) withdrawal order and a health or safety violation that is cited later. As with the concurrent causation issue, Clinchfield's position would work odd results. Mine inspectors have the most difficulty in ascribing responsibility for a hazard where the "imminent danger" required by Sec. 107 has already materialized in an accident. As the Secretary of Labor explained to the Commission as an amicus in this case:

MSHA often cannot, and should not, specify the operator's violations on a withdrawal order issued immediately following a mine disaster. Most importantly, immediately after the disaster, it frequently is too dangerous for anybody to enter the mine to determine exactly what happened. Further, MSHA usually must devote its resources to rescuing miners and recovering the affected areas of the mine before it can even begin its accident investigation.

Labor Amicus Brief 13, Joint Appendix ("J.A.") 115. Requiring an initial Sec. 107(a) order to specify violations would thus "penalize miners in just those cases where safety violations are so severe that they result in a disaster." Id. at 14, J.A. 116. Not only is the Secretary's argument reasonable, but the very fact of the Commission's acting in agreement with the Secretary heightens the deference due the Commission. See Emerald Mines, 863 F.2d at 53.

Even where disaster has yet to occur, the Commission's construction of Sec. 111 makes sense. Confining compensation to cases where violations are so obvious as to allow immediate citations might deter miners from reporting imminent dangers, and inspectors from issuing withdrawal orders, where the blame is less apparent. Cf. Rushton Mining Co. v. Morton, 520 F.2d 716, 720 (3rd Cir.1975) (relying on similar incentive effects on miners and inspectors in construing predecessor to Sec. 111); S.REP. No. 95-181, 95th Cong., 1st Sess. 47 (1977) (noting that Sec. 111 compensation will "remove any possible inhibition on the inspector in the issuance of closure orders"), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977, at 635 (1978). Or it might lead inspectors to include pro forma findings of violation in withdrawal orders, so as to protect miners' Sec. 111 entitlements even where no citation is then warranted.

Clinchfield might respond that these dis-incentives are not a serious concern, as a Sec. 107 order can be modified. 30 U.S.C. Sec. 817(d). Thus miners could call attention to ambiguous violations, knowing that if an imminent danger order were issued and later modified to include a finding of violation, they would receive Sec. 111 compensation. But the power to modify evidently ceases after an order has been terminated, see Labor Brief 14 n. 10, J.A. 116, so one can readily understand why Clinchfield refrained from making the argument. If this were the only means of awarding compensation in the case of post-order discovery of a violation, MSHA might delay terminations of withdrawal orders in order to be able to modify them in accordance with later findings of violations, increasing operators' shutdown costs.

Petitioner notes that the critical sentence of Sec. 111 allows compensation only after interested parties have been given "an opportunity for a public hearing, which shall be expedited in such cases, and after such [...