Emery Min. Corp. v. Secretary of Labor

• Citation: 744 F.2d 1411
• Decision Date: 26 September 1984
• Docket Number: No. 83-2046,83-2046
• Parties: 1984-1985 O.S.H.D. ( 27,069 EMERY MINING CORPORATION, Petitioner, v. SECRETARY OF LABOR, Mine Safety and Health Administration ("MSHA") and Federal Mine Safety and Health Review Commission, Respondents, and United Mine Workers of America, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1411

744 F.2d 1411

1984-1985 O.S.H.D. ( 27,069

EMERY MINING CORPORATION, Petitioner, v. SECRETARY OF LABOR, Mine Safety and Health Administration

("MSHA") and Federal Mine Safety and Health Review

Commission, Respondents,

and

United Mine Workers of America, Intervenor.

No. 83-2046.

United States Court of Appeals, Tenth Circuit.

Sept. 26, 1984.

Timothy M. Biddle, Thomas C. Means, and Adrienne J. Davis of Crowell & Moring, Washington, D.C., for petitioner.

Francis X. Lilly, Deputy Sol. of Labor, Cynthia L. Attwood, Associate Sol., Michael A. McCord, Counsel, Appellate Litigation, Washington, D.C., Linda L. Leasure, Atty., U.S. Dept. of Labor, Mine Safety and Health Dept., Arlington, Va., for Secretary of Labor.

Michael H. Holland, Mary Lucille Jordan, and Dennis D. Clark, Washington, D.C., for intervenor.

Before SETH, BREITENSTEIN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Emery Mining Corporation petitions this court for review of an order by the Federal Mine Safety and Health Review Commission. The Commission found that Emery violated the miner training requirements of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. Sec. 801 et seq. (1982) (the Act), and its implementing regulations by failing to provide refresher training to five miners within twelve months of their last received training. See 30 U.S.C. Sec. 825(a)(3); 30 C.F.R. Sec. 48.8(a) (1982). Emery contends the Commission's decision rests on an erroneous interpretation of the relevant statutes and regulatory provisions. Emery further contends that by its approval of Emery's training plan, the Secretary of Labor is estopped from asserting a violation of the Act. We disagree and affirm.

Section 115 of the Act, 30 U.S.C. Sec. 825, provides that each operator of a coal or other mine must have a health and safety training program that is approved by the Secretary of Labor. The statute specifies that each approved program must provide as a minimum that "all miners shall receive no less than eight hours of refresher training no less frequently than once each 12 months...." Id. Sec. 825(a)(3). The regulation in turn requires that "[e]ach miner shall receive a minimum of 8 hours of annual refresher training as prescribed in this section." 30 C.F.R. Sec. 48.8(a).

In September 1981, a Mine Safety and Health Administration (MSHA) inspector issued Emery a withdrawal order under section 104(g)(1) of the Act, 30 U.S.C. Sec. 814(g)(1). ¹ The order charged that five miners at Emery's Deer Creek Mine in Huntington, Utah had not received annual refresher training, as required by the regulation. The five had last received such training in June 1980, some fifteen months prior to the issuance of the order. Emery objected to the order as well as the proposed penalty, and the actions were consolidated for hearing before an administrative law judge. The ALJ vacated the order and dismissed the case, concluding that even though Congress may have intended that refresher training be conducted within twelve months of the previous training, "the regulation published by MSHA is controlling, and only requires refresher training during every calendar year." Rec., vol. I, at 49.

On appeal, the Commission rejected the ALJ's conclusion that calendar year retraining would satisfy the requirements of the regulation, holding that "when 'annual' is read, as it must be, in conjunction with the clear statutory mandate for refresher training at twelve-month intervals, ... [the regulation] requires refresher training to be given within twelve months of the last received training." Id. at 143. The Commission reversed the ALJ's decision and remanded the case for determination of an appropriate civil penalty. ² This appeal followed.

The issue before us is whether Emery violated the "annual refresher training" requirement of 30 C.F.R. Sec. 48.8(a) by conducting refresher training on a "calendar year" rather than an "anniversary date" basis. In Emery's view, it is in compliance if it conducts one refresher course in each calendar year, even if the course is conducted early in one year and late in the next year. Emery contends that the regulation plainly permits calendar year retraining, and that MSHA in fact intended and interpreted it to permit retraining in this fashion. Emery further argues that this contention is consistent with the language and intent of the underlying statute.

I.

We reject Emery's first contention that the Commission has erroneously interpreted the statute and the regulation. Although the "annual refresher training" language of the regulation by itself could be read to permit retraining on a calendar year basis, "a regulation must be interpreted so as to harmonize with and further and not to conflict with the objective of the statute it implements." Trustees of Indiana University v. United States, 223 Ct.Cl. 88, 618 F.2d 736, 739 (1980). We do not interpret this regulation in a vacuum. Rather, we must construe it in light of the statute it implements, keeping in mind that "[w]here there is an interpretation of an ambiguous regulation which is reasonable and consistent with the statute, that interpretation is to be preferred." United Telecommunications, Inc. v. Commissioner, 589 F.2d 1383, 1390 (10th Cir.1978), cert. denied, 442 U.S. 917, 99 S.Ct. 2839, 61 L.Ed.2d 284 (1979).

In the present case, any ambiguity in the regulation disappears immediately when the statute is consulted. The Act plainly states that "all miners shall receive no less than eight hours of refresher training no less frequently than once each 12 months ...." 30 U.S.C. Sec. 825(a)(3) (emphasis added). The meaning of these words hardly could be more clear. Each miner must receive refresher training every twelve months, that is, within twelve months of the last received training. The language simply admits of no other reasonable interpretation. Notably, Congress did not require that refresher training be provided once a year, or even once during each twelve month period, phrasing which arguably would permit calendar year retraining. Instead, Congress chose the specific words "once each 12 months," language which, as even the ALJ recognized, clearly expresses the Congressional intent "that refresher training be given at least once every twelve months." Rec., vol. I, at 48.

Viewed in light of the statute it implements, the term "annual refresher training" in the regulation must be construed as essentially a shorthand reference for this statutory language. ³ Under Emery's calendar year construction of the regulation, a miner could be trained one year in January and retrained the following year in December resulting in a lapse of as much as twenty-three months. Such an occurrence plainly is at odds with the language and objective of the statute, even if arguably consistent with the language of the regulation. Accordingly, Emery's construction of section 48.8(a) must be rejected. We "will not interpret an agency regulation to thwart a statutory mandate." Insurance Co. of North America v. Gee, 702 F.2d 411, 414 (2d Cir.1983). ⁴

II.

Emery next contends that MSHA officials knowingly approved and for two years acquiesced in Emery's calendar year retraining plan. Such approval, Emery asserts, amounts to a "contemporaneous construction" of the regulation and thus constitutes persuasive evidence of the meaning of the regulatory language. It is settled that an agency's interpretation of its enabling statute and its own regulations is entitled to deference, particularly "when the administrative practice at stake 'involves a contemporaneous construction of a statute [or regulation] by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.' " Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (quoting Power Reactor Development Co. v. International Union of Electrical, Radio & Machine Workers, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961) (quoting Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933))). In the present case, it is conceivable that the mere approval of Emery's training plan by MSHA officials could be viewed as a "contemporaneous construction" by the agency of the pertinent regulations. Cf. Standard Oil Co. v. Department of Energy, 596 F.2d 1029, 1056 (Temp.Emer.Ct.App.1978); Exxon Corp. v. Department of Energy, 91 F.R.D. 26, 41-42 (N.D.Tex.1981); Tenneco Oil Co. v. Department of Energy, 475 F.Supp. 299, 318 (D.Del.1979). But cf. American Motorcyclist Association v. Watt, 534 F.Supp. 923, 934 (C.D.Cal.1981), aff'd 714 F.2d 962 (9th Cir.1983).

On this record, however, we cannot conclude that in approving Emery's plan, MSHA construed 30 C.F.R. Sec. 48.8(a) to permit calendar year retraining. In support of its argument, Emery relies in particular on the words "By December 31st Annually," which Emery inserted in its training plan in response to the question "Predicted time when regularly scheduled refresher training will be given." Rec., vol. I, at 254. Emery's witnesses testified at the hearing that in choosing the words "By December 31st Annually," they sought and received approval from MSHA to conduct retraining on a calendar year basis. The MSHA officials who approved Emery's plan did not appear at the hearing, however, and the record contains no direct evidence as to their understanding of this provision. Indeed, the chief concern of MSHA officials during their meetings with Emery appears to have been that MSHA be notified of the dates when refresher training would...