Consolidation Coal Co. v. Federal Mine Safety and Health Review Com'n, 97-1100

• Decision Date: 27 February 1998
• Docket Number: No. 97-1100,97-1100
• Citation: 136 F.3d 819
• Parties: , 1998 O.S.H.D. (CCH) P 31,523 CONSOLIDATION COAL COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION and the Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 819

136 F.3d 819

329 U.S.App.D.C. 79, 1998 O.S.H.D. (CCH) P 31,523

CONSOLIDATION COAL COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION and the Secretary of Labor, Respondents.

No. 97-1100.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 14, 1998.

Decided Feb. 27, 1998.

Elizabeth S. Chamberlin, Pittsburgh, PA, argued the cause and filed the briefs for petitioner.

Yoora Kim, Attorney, U.S. Department of Labor, Washington, DC, argued the cause for respondents, with whom W. Christian Schumann, Counsel, was on the brief. Norman M. Gleichman, General Counsel, Mine Safety and Health Review Commission, entered an appearance.

Before: ROGERS and GARLAND, Circuit Judges, and BUCKLEY, Senior Circuit Judge.

ROGERS, Circuit Judge:

Consolidation Coal Company petitions the court for review of a decision of the Mine Safety and Health Review Commission upholding a citation by the Mine Safety and Health Administration (MSHA) for failure to ensure that any of its miners could at all times see a warning signal mounted on a methane monitor in one of its mines, in contravention of 30 C.F.R. § 75.342(b)(2). Consolidation concedes that its miners could not see the warning signal at all times, but contends that because its mine automatically shut down whenever the methane levels reached the point where the warning signal was to be triggered, it was in compliance with the regulation. Mindful of the substantial deference we owe the Secretary in the interpretation of her own regulations, we deny the petition for review.

I.

In the Federal Mine Safety and Health Act of 1977 (the "Mine Act"), 30 U.S.C. §§ 801 et seq. (1988), Congress directed the Secretary of Labor to "develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal ... mines." 30 U.S.C. § 811(a) (1988). Concerned about the accumulation of methane gas and ignition sources that could spark explosions, Congress directed the Secretary to require that mine operators install monitors "for detecting concentrations of methane" on "any electric face cutting equipment," including "longwall face equipment." 30 U.S.C. § 863(l). Pursuant to this congressional delegation, the Secretary of Labor has promulgated regulations requiring the installation of methane monitors on, inter alia, "all ... longwall face equipment." 30 C.F.R. § 75.342(a)(1) (1997). The Secretary requires each of the methane monitors to include a warning signal. In 1994, the regulations provided:

(1) When the methane concentration at any methane monitor reaches 1.0 percent the monitor shall give a warning signal.

(2) The warning signal device of the methane monitor shall be visible to a person who can deenergize the equipment on which the monitor is mounted.

30 C.F.R. § 75.342(b) (1994). ¹ The Secretary at that time also required all longwall machinery to shut down when the methane concentration in the mine reached 2.0%. 30 C.F.R. § 75.342(c) (1994). ²

Consolidation uses the longwall mining system to extract coal from its Robinson Run No. 95 mine in West Virginia. A longwall is created by digging two parallel, vertical tunnels and a third horizontal connector tunnel. See International Union, United Mine Workers v. FMSHA, 931 F.2d 908, 910 (D.C.Cir.1991). The horizontal connector is the longwall; its ceiling "exposes the face of rock from which coal will be extracted by a shearer moving back and forth across the face." United Mine Workers v. Dole, 870 F.2d 662, 675 (D.C.Cir.1989). The shearing process not only cuts coal, but releases methane contained in the coal seams. Methane is an odorless, colorless, tasteless, and highly explosive gas that emanates naturally from the seams. S.Rep. No. 95-181, at 41 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3441.

Longwall face 2-D in Consolidation's West Virginia mine contains two methane sensors, placed at the middle and one end (the "tailgate") of the longwall. These sensors are connected to a methane monitor located at the other end of the longwall (the "headgate"). The monitor contains a panel with a yellow warning light that flashes when methane reaches a level of 1.0% of the atmosphere as well as a red "trip light" that will activate at the same time. It also contains two digital displays that provide readouts of the methane levels along the longwall face. Whenever the warning lights are triggered, the lighting on petitioner's longwall face goes out and all the equipment electrically connected to the longwall automatically deenergizes, with the exception of the methane monitors and face telephone system. ³ In this way, Consolidation's mine automatically shuts down before federal regulations require it to do so, at 1.0% methane, rather than at 2.0% methane. See 30 C.F.R. § 75.342(c)(1) (1997).

After promulgating section 75.342(b), MSHA inspectors notified Consolidation seven times that its mine did not comply with the regulation. In 1993, MSHA sent two letters to Consolidation discussing the regulation's visibility requirements. The company took no action in response to the letters and warnings. On April 19, 1994, a MSHA inspector visited Consolidation's West Virginia mine. The inspector could not see the warning lights on the system's methane monitor from the position of the "headgate operator," who was the miner closest to the monitor. The monitor was located approximately thirty feet from the place where the headgate operator would shovel spilled coal onto the conveyor belt that took the coal to the surface. Accordingly, the MSHA inspector issued a citation for failure to comply with section 75.342(b)(2).

Consolidation contested the citation, and an Administrative Law Judge vacated it. Although there was no doubt that the headgate operator could not see the warning lights of the methane monitor at all times, the judge concluded that the deenergization of the longwall mining equipment and nearby lighting when the methane level reached 1.0% constituted a "visible signal to the headgate operator and other miners authorized to deenergize the longwall ... that methane may have reached 1.0%," as required by section 75.342(b)(2). Consolidation Coal Co. v. Secretary of Labor, 16 FMSHRC 1241, 1246 (1994). The automatic shut down met this warning function because

the headgate operator [then] must return to the master control box to restart the power. When the operator arrives at the control box after a methane shutdown, he will be confronted by computer [sic] display that will advise him in plain english [sic] that there has been a "methane monitor fault."

Id. at 1243-44 (citations omitted).

The Secretary appealed to the Commission, arguing that the "evidence was undisputed that the warning signal device on the methane monitor was not visible to a person who could deenergize the longwall," and that that fact was determinative of noncompliance with section 75.342(b)(2). Consolidation Coal Co. v. Secretary of Labor, 18 FMSHRC 1903, 1906 (1996). By a 2-1 vote, the Commission accepted the Secretary's interpretation of the regulation and reinstated the citation. Id. at 1906. Regarding Consolidation's automatic deenergization at 1.0% methane, the Commission observed that "[t]he Secretary's regulatory scheme requires human intervention when methane levels reach 1 percent and automatic deenergization of equipment at 2 percent methane. Consol[idation] has, in effect, eliminated the requirement for human intervention" in contravention of section 75.342(b)(2). Id.

II.

Whether Consolidation's methane monitoring system complies with section 75.342(b)(2) turns on the Secretary's analysis of the regulation that was accepted by the Commission. "We accord great deference to interpretations ... advanced by the Secretary and accepted by the Commission." Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 462 (D.C.Cir.1994). The court "must defer" to their interpretations "unless an 'alternative reading is compelled by the regulation's plain language or by other indications of the Secretary's intent at the time of the regulation's promulgation.' " Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386-87, 129 L.Ed.2d 405 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S.Ct. 1306, 1314-15, 99 L.Ed.2d 515 (1988)). Likewise, if the administrative interpretation of the regulation is "clearly erroneous," the court must reject it. See, e.g., Jim Walter Resources, Inc. v. Secretary of Labor, 103 F.3d 1020, 1024 (D.C.Cir.1997).

Contrary to Consolidation's contention, we conclude, first, that the Secretary's interpretation of section 75.342(b) does not conflict with its plain meaning. Under the Secretary's interpretation, the monitor warning signal at all times must be visible to a miner who could respond if the light is triggered by a concentration of 1.0% methane on the longwall face. The interpretation requires not just a warning signal, but a signal that is a "device of" the methane monitor and a signal that is visible at all times to a miner who can react to increasing methane levels and, if necessary, deenergize the mining equipment. Through this interpretation, the Secretary has appropriately construed section 75.342(b) to give effect to all of its provisions. Cf. Otis Elevator Co. v. Secretary of Labor, 921 F.2d 1285, 1289 (D.C.Cir.1990). It is an interpretation that requires a visible signal that would be triggered whenever methane levels exceed 1.0%, regardless of what other safety measures may be activated by the rise in methane. Consolidation does not have such a signal in its West Virginia mine. Its methane warning device is the longwall equipment. Thus, if Consolidation's equipment fails to deenergize when methane reached 1.0%, its miners might never know, because the methane monitor warning lights are not always visible to the headgate operator.

Consolidation contends that its methane...