Northshore Mining Co. v. Sec'y of Labor

• Decision Date: 08 March 2013
• Docket Number: No. 12–2249.,12–2249.
• Citation: 709 F.3d 706
• Parties: NORTHSHORE MINING COMPANY, Petitioner v. SECRETARY OF LABOR; Mine Safety and Health Administration; Federal Mine Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

709 F.3d 706

NORTHSHORE MINING COMPANY, Petitioner

v.SECRETARY OF LABOR; Mine Safety and Health Administration; Federal Mine Safety and Health Review Commission, Respondents.

No. 12–2249.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 13, 2012.

Filed: March 8, 2013.

Ralph Henry Moore, II, argued, Patrick W. Dennison, on the brief, Pittsburgh, PA, for petitioner.

Edward Waldman, U.S. Department of Labor, Office of the Solicitor, argued, W. Christian Schumann, U.S. Department of Labor, on the brief, Arlington, VA, for Respondents Secretary of Labor and Mine Safety and Health Administration.

Before SMITH, BEAM, and GRUENDER, Circuit Judges.

BEAM, Circuit Judge.

Northshore Mining Company (Northshore) petitions for review of a final decision of the Federal Mine Safety and Health Review Commission (Commission) affirming a citation by the Secretary of Labor's Mine Safety and Health Administration (hereinafter Secretary or MSHA) charging a violation of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 801 et seq. Because we conclude that MSHA erred in relying upon 30 C.F.R. § 56.12016, we vacate the Commission's decision and set aside the citation.

I. BACKGROUND

This case arises under the Mine Act, wherein the Secretary of Labor sets mandatory safety and health standards for coal and other mines in order to reduce and, ideally, eliminate accidents, injuries and fatalities. 30 U.S.C. § 811. Representatives of the Secretary, in this case from MSHA, inspect mines to determine whether the conditions and practices they encounter comport with established standards. Id. § 813. The Mine Act provides that the Secretary may issue citations and orders for violations of the Mine Act or any rule, order, or regulation promulgated thereunder. Id. § 814. A mine operator can contest a citation or order issued under the Mine Act, as Northshore did here, before the Commission, an independent adjudicatory body that provides administrative hearings and appellate review. Id. §§ 815(d), 823. After an order is contested, an Administrative Law Judge (ALJ) appointed by the Commission conducts an administrative hearing and renders a decision. Id. § 823(d)(1). An aggrieved party may seek discretionary review of this decision before the full Commission. Id. § 823(d)(2)(A)(i). If the Commission declines to exercise such authority, as it did here, the ALJ's decision becomes the Commission's final decision. Id. § 823(d)(1). That decision is appealable to a United States Court of Appeals. Id. § 816(a)(1).

In January 2010, an inspector for MSHA visited Northshore's surface mine in St. Louis County, Minnesota. During his visits, the inspector observed Northshore's operation of a P & H Model 2800XPC Electric Cable Shovel—a mammoth, sophisticated piece of equipment (approximately fifty-five to sixty feet in height) used for mining. On January 19, 2010, the inspector issued a citation against Northshore for an alleged violation of 30 C.F.R. § 56.12016. The citation described the violative condition as follows:

Company # 103, P & H Model 2800 Electric Cable Shovel: On 1/11/10 a bull gang mechanic was observed working on the “Dutchman” portion of the shovel bucket. A spot-check of the shovel lock-out indicated that he had locked out the “control supply circuit breaker” and the “relay supply circuit breaker” as per company procedure. Subsequent investigation revealed that only control power was de-energized and locked out versus main power. This condition exposed personnel to moving machine hazards. Company personnel involved in developing this procedure, reportedly were un-aware of the hazard of locking out only control power. This company shovel lockout procedure has reportedly been in effect for about 1 year.

The “dutchman” referenced in the citation is the mechanism that permits the shovel bottom, or “dipper door,” to open and dump material. Maintenance on the shovel bucket may occur three times a day, or ten to twenty times a week. As for the procedure employed by Northshore during the maintenance work at issue, MSHA took the position that the lockout for power to the main transformer must be done at the knife switches for the main transformer and not at the circuit breakers for the main transformer, as Northshore's method proscribed. As noted in its text, MSHA issued the citation because of a concern regarding hazards created by mechanical movement of the shovel.

Northshore challenged the citation. As relevant here, the ALJ rejected Northshore's arguments and held that Northshore's method of opening and locking/tagging out of circuit breakers, rather than opening and locking/tagging out the knife switches as insisted on by MSHA, violated 30 C.F.R. § 56.12016. The parties also challenged whether the cited regulation covered the violative condition sought to be abated by the inspector in the citation—i.e., whether § 56.12016 was drafted to abate mechanical movement at all. On that issue, the ALJ held that 30 C.F.R. § 56.12016 and 30 C.F.R. § 56.14105¹ (the regulation Northshore claimed was more suited to the citation conditions, if any violations existed) are not mutually exclusive and that MSHA did not err in proceeding under the former regulation. The Commission denied discretionary review. Northshore petitions for review, seeking reversal of the final decision.

II. DISCUSSION

This dispute involves the interpretation of MSHA regulations, a matter of law that we review de novo. Pattison Sand Co. v. Fed. Mine Safety and Health Review Comm'n, 688 F.3d 507, 512 (8th Cir.2012). “When Congress has delegated authority to an administrative agency to interpret and implement a federal statute, we give the agency's interpretation deference pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).” Beeler v. Astrue, 651 F.3d 954, 959, 960 (8th Cir.2011) (reviewing both an agency's interpretation of its own regulations and additionally whether the regulations at issue were based on a permissible construction of the relevant statute and finding “no latent ambiguity” in the former), cert. denied,––– U.S. ––––, 132 S.Ct. 2679, 183 L.Ed.2d 62 (2012). In the usual review, we are guided by the maxim that where “Congress has not ‘directly spoken to the precise question at issue,’ we must sustain the Secretary's approach so long as it is ‘based on a permissible construction of the statute.’ ” Auer v. Robbins, 519 U.S. 452, 457, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quoting Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778). But, to be accurate, the parties do not challenge the meaning of the Mine Act's statutory language here, nor whether MSHA's regulations are a reasonable interpretation of the enacted statute, both of which considerations directly invoke the Chevron rubric. Rather, we are only faced with reviewing MSHA's interpretation of its own regulatory language, including the force and reach of the language itself, as promulgated by the Secretary in the first instance under a general congressional charge in the Mine Act.²While this means that we do not concern ourselves with the interpretation of the language in the Mine Act, it ultimately changes our analysis only slightly.

At least as they are relevant to the instant analysis, the facts of this case are not in dispute. Nor do the parties dispute that the inspector's concern underlying the issued citation was hazards created by mechanical movement of the shovel. Thus, Northshore's challenge on appeal is twofold. First, Northshore challenges whether § 56.12016 was the appropriate regulation to apply in these circumstances. Alternatively, assuming that the Secretary cited the appropriate regulation, Northshore claims that the procedure it employed complied with the standard set out in the first sentence of § 56.12016. If we agree that the Secretary erred in issuing the citation under § 56.12016 we need not address Northshore's second claim. We hold that MSHA erred in relying upon 30 C.F.R. § 56.12016 under the circumstances at issue here.

When reviewing a challenged interpretation of regulatory language, the Secretary's interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905 (internal quotation omitted). “Nonetheless, ‘Auer deference is warranted only when the language of the regulation is ambiguous.’ ” Fast v. Applebee's Int'l, Inc., 638 F.3d 872, 878 (8th Cir.2011) (quoting Christensen v. Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)), cert. denied,––– U.S. ––––, 132 S.Ct. 1094, 181 L.Ed.2d 977 (2012). The starting point in this case, then, is determining the plain meaning of § 56.12016.

The citation at issue charged Northshore of violating § 56.12016, which provides in part:

Electrically powered equipment shall be deenergized before mechanical work is done on such equipment. Power switches shall be locked out or other measures taken which shall prevent the equipment from being energized without the knowledge of the individuals working on it.

The question now before us is whether § 56.12016 addresses the violative condition sought to be abated by this citation. The text of § 56.12016 is ambiguous as to the crucial interpretive question regarding whether the section applies to abate the hazard of mechanical movement. In light of this ambiguity, we consider its title, as well as its context, or placement, in the subchapter and regulatory scheme as a whole to discern the reach and application of this regulation. United States v. May, 535 F.3d 912, 918 (8th Cir.2008) (“At the very least, [an additional possible meaning of the statutory language] creates an ambiguity, and triggers the permissible reference to the title.”), abrogated on other grounds by Reynolds v. United States, ––– U.S. ––––, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012). To resolve the ambiguity, in addition to...