RAG Cumberland Resources LP v. Fed. Mine Safety & Health Review Comm'n

• Decision Date: 07 December 2001
• Docket Number: No. 00-1438,00-1438
• Citation: 272 F.3d 590
• Parties: (D.C. Cir. 2001) RAG Cumberland Resources LP, Petitioner v. Federal Mine Safety and Health Review Commission and Secretary of Labor, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 590

272 F.3d 590 (D.C. Cir. 2001)

RAG Cumberland Resources LP, Petitioner v. Federal Mine Safety and Health Review Commission and Secretary of Labor, Respondents

No. 00-1438

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2001

Decided December 7, 2001

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

Ralph Henry Moore II argued the cause and filed the briefs for petitioner.

Harold P. Quinn, Jr. and Michael F. Duffy were on the brief for amicus curiae National Mining Association.

Robin A. Rosenbluth, Attorney, U.S. Department of Labor, argued the cause for respondents. With her on the brief was W. Christian Schumann, Counsel. John T. Sullivan, Attorney, Federal Mine Safety and Health Review Commission, entered an appearance.

Before: Garland, Circuit Judge, Silberman and Williams,^* Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

Petitioner RAG Cumberland Resources LP, the owner and operator of a coal mine, challenges an order issued against it pursuant to § 104(d)(2) of the Federal Mine Safety and Health Act of 1977 (the "Mine Act"), 30 U.S.C. § 814(d)(2). The Secretary of Labor issued the order after a federal mine inspector discovered that, for the second time in four months, the petitioner had violated a mandatory mine safety standard through conduct constituting more than ordinary negligence. RAG Cumberland does not deny that it committed those violations, but asserts that the Mine Act bars the Secretary from issuing the order because its mine passed a "clean inspection" during the period between the two violations. An administrative law judge (ALJ) for the Federal Mine Safety and Health Review Commission (FMSHRC or the "Commission") agreed with the petitioner and vacated the order. On discretionary review, the Commission set aside the ALJ's conclusion and reinstated the order. For the reasons set forth below, we deny RAG Cumberland's petition for review of the Commission's decision.

I

The Mine Act requires the Secretary of Labor to promulgate mandatory health and safety standards for the nation's mines. Mine Act § 101(a), 30 U.S.C. § 811(a). To ensure compliance with those standards, the Act requires representatives of the Secretary to inspect each underground mine "in its entirety" at least four times per year and to develop guidelines for conducting additional inspections as appropriate. Mine Act § 103(a), 30 U.S.C. § 813(a). The Mine Safety and Health Administration (MSHA) conducts these inspections on behalf of the Secretary.

Section 104 of the Mine Act, 30 U.S.C. § 814, directs the Secretary to issue citations and orders to mine operators who are not in compliance with the Act or the regulations promulgated thereunder. A MSHA inspector who discovers a violation of a mandatory health or safety standard must issue a § 104(a) citation to the operator. The citation must describe the violation with particularity and fix a reasonable time for its abatement. 30 U.S.C. § 814(a).

Section 104(d) of the Act, 30 U.S.C. § 814(d), the principal section at issue here, creates a "chain" of increasingly severe sanctions for certain violations of mandatory standards. Nacco Mining Co. v. Sec'y of Labor, 9 F.M.S.H.R.C. 1541, 154546 (1987). If an inspector finds a violation of a mandatory standard that could "significantly and substantially" contribute to a mine safety or health hazard, and that was caused by an "unwarrantable failure" of the operator to comply with the standard,¹ MSHA issues what is commonly referred to as a § 104(d)(1) citation. 30 U.S.C. § 814(d)(1); see Sec'y of Labor v. Cyprus Cumberland Res. Corp., 21 F.M.S.H.R.C. 722, 725 (1999) ("Commission Decision I"). If, during the same inspection or any subsequent inspection within the next ninety days, an inspector discovers another violation of a mandatory standard caused by an unwarrantable failure to comply, MSHA issues a § 104(d)(1) withdrawal order--also known as a "predicate order." See Sec'y of Labor v. Wyoming Fuel Co., 16 F.M.S.H.R.C. 1618, 1622 n.7 (1994).² A withdrawal order requires the mine operator to remove all persons (except those needed to correct the problem) from the area until the violation has been corrected. 30 U.S.C. § 814(d)(1). When such an order is issued, production in the affected area of the mine must cease.

Once a § 104(d)(1) withdrawal order has been issued, if "upon any subsequent inspection" an inspector finds a violation caused by an unwarrantable failure, the inspector issues a § 104(d)(2) withdrawal order.³ The chain of sanctions continues, with each new unwarrantable violation generating a § 104(d)(2) withdrawal order "until such time as an inspection of such mine discloses no similar violations." 30 U.S.C. § 814(d)(2) (emphasis added); see United Mine Workers v. FMSHRC, 768 F.2d 1477, 1478-79 (D.C. Cir. 1985); Nacco Mining Co., 9 F.M.S.H.R.C. at 1545.⁴ The "inspection of such mine" necessary to end the sanctions chain is known as a "clean inspection." See Sec'y of Labor v. Kitt Energy Corp., 6 F.M.S.H.R.C. 1596, 1596 (1984). To sustain a § 104(d)(2) withdrawal order, the Secretary has the burden of proving, by a preponderance of the evidence, that a clean inspection has not occurred since the issuance of the previous withdrawal order. Id. at 1600.

II

RAG Cumberland owns and operates the Cumberland Mine, an underground bituminous coal mine near Waynesburg, Pennsylvania.⁵ Each year, MSHA conducts four regular health and safety inspections of the entire Cumberland Mine. The inspections are conducted quarterly by two MSHA inspectors who are assigned to the mine on a full-time basis. An inspection usually takes a full quarter to complete. Other inspectors from MSHA's Waynesburg field office periodically visit the mine to assist the two full-time inspectors. See Commission Decision I, 21 F.M.S.H.R.C. at 723.

On June 18, 1997, during a regular quarterly inspection, a MSHA inspector issued the Cumberland Mine a § 104(d)(1) withdrawal order for a significant and substantial and unwarrantable violation of a mandatory safety standard. Id. On September 24, 1997, during the next quarterly inspection, the mine was issued a § 104(a) citation for a violation of MSHA's mandatory roof control standard. In response the mine installed a hydraulic jack to support the roof, which temporarily abated the violation, and placed two warning signs in the area. The next day, however, the inspector discovered that the jack and signs had been removed and that miners had been working beneath the unsupported roof. This, he determined, constituted a significant and substantial and unwarrantable violation of the roof control standard. In light of the predicate June 18 order, MSHA issued RAG Cumberland a § 104(d)(2) withdrawal order on September 25. Id. at 724.

RAG Cumberland filed a challenge to the September 25 order with FMSHRC. The company stipulated to the validity of the June 18 predicate order, and further stipulated both that it had violated the roof control standard on September 25 and that the violation was significant and substantial and had been caused by an unwarrantable failure. The sole basis for RAG Cumberland's challenge was its contention that a § 104(d)(2) withdrawal order was unjustified because MSHA had conducted a clean inspection of the Cumberland Mine during the period between June 18 and September 25. The Secretary, in turn, stipulated that MSHA had, in fact, thoroughly inspected all areas of the mine between those dates-with the exception of the 60 West Mains haulage, a 4200-foot passage that serves as the primary route into and out of the mine. Thus, the only question affecting the validity of the September 25 order was whether MSHA had conducted a clean inspection of the 60 West Mains haulage itself between June 18 and September 25. Id.

RAG Cumberland's challenge to MSHA's September 25 withdrawal order made two complete trips through the FMSHRC adjudicatory process before arriving at this court. The challenge was initially heard before an ALJ, who concluded that MSHA had conducted an intervening clean inspection of the haulage and therefore downgraded the § 104(d)(2) withdrawal order to a § 104(d)(1) citation. Cyprus Cumberland Res. Corp. v. Sec'y of Labor, 20 F.M.S.H.R.C. 285, 295 (1998) ("ALJ Decision I"). The ALJ based his conclusion on the Secretary's stipulation that, during the relevant period, MSHA inspectors traveled through the 60 West Mains haulage "many times," in both open and closed vehicles, en route to conduct inspections in other areas of the mine. Id. at 294. The ALJ disagreed with the Secretary's view that such travel was insufficient to constitute a clean "inspection of such mine" within the meaning of § 104(d)(2). The ALJ did not dispute the reasonableness of the Secretary's statutory interpretation: that to constitute an "inspection," inspectors must leave their vehicles and conduct a detailed examination for non-obvious hazards. Id. at 289. Rather, he simply "decline[d] to defer to the Secretary's interpretation," id., holding instead that the inspectors' "opportunity to observe" the mine's conditions was enough to represent a clean inspection under the Act, id. at 294.

On discretionary review, the Commission vacated the ALJ's decision. It concluded that the ALJ had erred in relying on the inspectors' repeated travel through the haulage, rather than examining evidence of actual inspection activity. Commission Decision I, 21 F.M.S.H.R.C. at 727. The Commission explained that under controlling precedent, the physical presence of an inspector in each area of the mine is insufficient to constitute a clean inspection. To the contrary, such an inspection requires inspectors to conduct a "thorough and complete" examination for all potential hazards, not only those that are visible or obvious. Id. at 726. Since RAG Cumberland's own safety manager...