Jim Walter Resources, Inc. v. Secretary of Labor, Mine Safety and Health Admin., 95-1554

• Decision Date: 17 January 1997
• Docket Number: No. 95-1554,95-1554
• Citation: 103 F.3d 1020
• Parties: , 1997 O.S.H.D. (CCH) P 31,215 JIM WALTER RESOURCES, INC., Petitioner, v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION and Federal Mine Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1020

103 F.3d 1020

322 U.S.App.D.C. 314, 1997 O.S.H.D. (CCH) P 31,215

JIM WALTER RESOURCES, INC., Petitioner, v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION and Federal Mine Safety and Health Review Commission, Respondents.

No. 95-1554.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 13, 1996.

Decided Jan. 17, 1997.

Petition for Review of an Order of the Federal Mine Safety and Health Review Commission.

David M. Smith, Washington, DC, with whom Warren B. Lightfoot, Jr., Birmingham, AL, was on the briefs, argued the cause, for petitioner.

Colleen A. Geraghty, Attorney, Arlington, VA, U.S. Department of Labor, with whom J. Davitt McAteer, Acting Solicitor of Labor, Sheperds Town, WV, and W. Christian Schumann, Counsel, Washington, DC, were on the brief, argued the cause, for respondents. Elizabeth Ebner, Washington, DC, and Norman M. Gleichman, Takoma Park, MD, entered appearances, for respondents.

Before HENDERSON and RANDOLPH, Circuit Judges, and BUCKLEY, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge BUCKLEY.

BUCKLEY, Senior Circuit Judge:

Petitioner Jim Walter Resources, Inc. seeks review of the Federal Mine Safety and Health Review Commission's Decision and Order finding that Jim Walter violated the mandatory health standards established in 30 C.F.R. § 72.630(a) and that the violation constituted an "unwarrantable failure" to comply with the standards. We uphold the Commission's determination that Jim Walter violated section 72.630(a) but reject its finding that the violation constituted an unwarrantable failure to comply with the regulation.

I. BACKGROUND

A. Legal Framework

The Federal Mine Safety and Health Act of 1977 ("Act"), 30 U.S.C. § 801 et seq. (1994), was enacted to improve and promote health and safety in the Nation's mines. See id. § 801. Section 104(a) of the Act directs the Secretary of Labor ("Secretary") or his authorized representative to issue a citation to a mine operator if, upon inspection or investigation, he believes that the operator has violated a mandatory health or safety standard established under the Act. Id. § 814(a).

The health standard at issue in this case is 30 C.F.R. § 72.630, which provides, in its entirety, as follows § 72.630 Drill dust control at underground areas of underground mines.

(a) Dust resulting from drilling in rock shall be controlled by use of permissible dust collectors, or by water, or water with a wetting agent, or by ventilation, or by any other method or device approved by the Secretary that is as effective in controlling the dust.

(b) Dust collectors. Dust collectors shall be maintained in permissible and operating condition. Dust collectors approved under Part 33--Dust Collectors for Use in Connection with Rock Drilling in Coal Mines of this title or under Bureau of Mines Schedule 25B are permissible dust collectors for the purpose of this section.

(c) Water control. Water used to control dust from drilling rock shall be applied through a hollow drill steel or stem or by the flooding of vertical drill holes in the floor.

(d) Ventilation control. To adequately control dust from drilling rock, the air current shall be so directed that the dust is readily dispersed and carried away from the drill operator or any other miners in the area.

30 C.F.R. § 72.630 (1996).

A violation of section 72.630 occurs when a miner is located downwind of a drilling operation that fails to employ one of the three alternative methods of dust suppression specified in the regulations: approved dust collectors, water, and ventilation. Because workable dust collectors were not available for Jim Walter's pneumatic drills, it had to rely on either water or ventilation to control rock dust.

B. Events Relating to the Violation of Section 72.630(a)

Jim Walter owns and operates an underground coal mine, known as the "Number 4 mine," in Birmingham, Alabama. The coal is extracted through "longwall mining," which we have described as follows:

A longwall panel is created by digging two parallel, vertical tunnels (the headgate and tailgate entries) and a third horizontal connector (the longwall). The ceiling of the longwall exposes the face of rock from which coal will be extracted by a shearer moving back and forth across the face. Mining begins at the bottom of the parallel entries and progresses back towards ground level.

International Union, United Mine Workers of America v. FMSHA, 931 F.2d 908, 910 (D.C.Cir.1991) (internal quotation marks and citations omitted). After the miners have finished mining a section, they engage in longwall recovery, that is, removal of longwall equipment from one area so that they can begin mining another longwall panel at a different location. During this process, it is necessary to install roof bolts to support the mine roof so that the equipment may be removed.

The Jim Walter miners work three shifts: an "owl shift" that runs from 11:00 p.m. to 7:00 a.m.; a "day shift" from 7:00 a.m. to 3:00 p.m.; and an "evening shift" from 3:00 p.m. to 11:00 p.m. During the day shift on July 21, 1994, an inspector from the Mine Safety and Health Administration ("MSHA"), Gary Don Greer, conducted an inspection of the Number 4 mine while the miners were engaged in longwall recovery. Greer was accompanied on his inspection by a representative of management and Glynn Loggins, the United Mine Workers of America's ("UMWA") representative on the Number 4 mine safety committee. Loggins told Greer that the union was having problems with management concerning the drilling of rock along the longwall face upwind of miners. Greer replied that he would look into the problem. Loggins also informed the inspector that it was likely that a "section 103(g)" complaint would be filed concerning the conditions faced by the downwind miners. Section 103(g) enables a miner or a representative of the miners to obtain an "immediate inspection" by notifying the Secretary or his authorized representative of a violation that he "has reasonable grounds to believe ... exists." 30 U.S.C. § 813(g).

During the course of his inspection, Greer discussed the three approved ways of complying with section 72.630(a) with the longwall foreman and saw him connect one of Jim Walter's drills to water. After observing the water-equipped drill in operation, the inspector asked the operator whether he had encountered any problems with it. He answered that he had not.

When Greer reached the surface of the mine, he received a message directing him to call the MSHA Sub-District office. When he called, he was told that the MSHA had received a section 103(g) complaint asking for an inspection of the Number 4 mine. The complaint stated that on July 20-21, 1994, drills were operated upwind of other miners without the use of any method of dust suppression. The complaint also reported that management and some drill operators were concerned that problems encountered with the use of water in the drilling would create a hazard; and it requested that, in the event Jim Walter decided to drill with water, an inspection of the "roofbolting" be made to determine whether the use of water presented an imminent danger. 103(g) Complaint (July 21, 1994), reprinted in App. Tab 9.

The next day, July 22, 1994, Greer gave a copy of the 103(g) complaint to Jim Walter officials and interviewed persons who had information regarding the July 21 owl shift (i.e., 11:00 p.m. on July 20 to 7:00 a.m. on July 21). Greer testified that, in the course of these interviews, he was informed that the miners had used drills to install roofbolts; that they had as many as four drills in operation at a time; that they would have used more drills had they not kept breaking down; and that broken drills were being sent out to be repaired and then returned so as to maintain as many drills in operation as possible. He also stated that he had asked Jeffrey Maddox, the longwall manager, whether he knew that the drills should be provided with water, and that Maddox replied that he did, but that "they were in a hurry, due to bad roofing conditions, and they thought that [the use of] water would create a [safety] hazard." Transcript of Hearing held January 31, 1995 Before Administrative Law Judge ("Tr.") at 96. Finally, Greer testified that when he observed drilling during the July 21 day shift, the use of water did not appear to be creating a hazard. Id.

Immediately following these conversations, Greer issued an order, pursuant to section 104(d)(2) of the Act ("(d)(2) order"), 30 U.S.C. § 814(d)(2), in which he found that Jim Walter had violated 30 C.F.R. § 72.630(a). He determined that

dust resulting from drilling in rock was not being controlled by use of permissible dust collectors or by water, or water with a wetting agent, or by ventilation controls. Employees who were drilling the No.1 longwall section roof with pneumatic rotation drills on 7-21-94 owl shift were exposed to this dust while installing permanent roof supports. As many as four (4) drills were in operation at any one time and none of the drills were equipped with dust suppression devices.

Mine Citation/Order No. 3184217 (July 22, 1994), reprinted in App. Tab 10. The (d)(2) order also indicated that injury or illness was "highly likely"; that the injury or illness could reasonably be expected to be "permanently disabling"; that the violation affected eight people; and that the violation was "significant and substantial." Id.

Jim Walter contested the (d)(2) order; and on January 31, 1995, a hearing was held before an administrative law judge ("ALJ"). On August 23, 1995, the ALJ found that Jim Walter had violated section 72.630(a), Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, 17 F.M.S.H.R.C. 1423, 1446 (1995); that the violation, albeit serious, was not "significant and substantial," id. at 1448; and that it was the result of Jim Walter's "unwarrantable failure to comply" with the...