Secretary of Labor, Mine Safety and Health Admin. v. Federal Mine Safety and Health Review Com'n, No. 96-1164

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: TATEL
• Citation: 111 F.3d 913
• Parties: , 65 USLW 2738, 1997 O.S.H.D. (CCH) P 31,312 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, Petitioner v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION and Jim Walter Resources, Inc., Respondents
• Docket Number: No. 96-1164
• Decision Date: 02 May 1997

Page 913

111 F.3d 913 324 U.S.App.D.C. 154, 65 USLW 2738,
1997 O.S.H.D. (CCH) P 31,312 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, Petitioner
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION and Jim
Walter Resources, Inc., Respondents No. 96-1164. United States Court of Appeals,
District of Columbia Circuit. Argued Jan. 28, 1997.
Decided May 2, 1997.

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[324 U.S.App.D.C. 155] On Petition for Review of an Order of the Federal Mine Safety and Health Administration.

Robin A. Rosenbluth, Attorney, U.S. Department of Labor, argued the cause, Washington, DC, for petitioner. With her on the brief were J. Davitt McAteer, Acting Solicitor of Labor, Mount Hope, WV and W. Christian Schumann, Counsel.

Warren B. Lightfoot, Jr. argued the cause, Birmingham, AL, for respondents. With him on the brief was David M. Smith. J. Alan Truitt and Norman M. Gleichman, Takoma Park, MD, entered appearances.

Before: GINSBURG, HENDERSON and TATEL, Circuit Judges.

TATEL, Circuit Judge.

Under the Federal Mine Safety and Health Act, violations of mine safety and health standards that contribute "significantly and substantially" to a coal mine hazard and that result from an "unwarrantable failure" of the mine operator to comply with applicable standards may lead to orders requiring mine operators to remove workers from unsafe areas. In this case, the Secretary of Labor petitions for review of a Federal Mine Safety and Health Review Commission decision holding that, in making "significantly and substantially" and "unwarrantable failure" determinations, mine inspectors must confine their assessments to conditions that violate health and safety standards and may not consider nearby nonviolative conditions. Because we conclude that the Commission's exclusion of nonviolative conditions from the "significantly and substantially" assessment is required by the plain language of the Mine Safety Act, we deny the Secretary's petition for review on this point. However, because the language

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[324 U.S.App.D.C. 156] of the "unwarrantable failure" provision is ambiguous, and because the Secretary, to whom we owe Chevron deference, permissibly interprets the Act to allow consideration of conditions that do not violate health and safety standards, we reverse and remand the unwarrantability portion of the Commission's decision. I

The Mine Safety Act directs the Secretary of Labor or the Secretary's authorized representatives to inspect coal mines frequently. 30 U.S.C. § 813(a) (1994). If an inspection reveals a violation of mandatory mine health and safety regulations, the inspector issues a citation. Id. § 814(a). If the inspector determines that the violation is both "of such nature as could significantly and substantially contribute to the cause and effect of a coal ... mine safety or health hazard" and "caused by an unwarrantable failure of [the mine] operator to comply with such mandatory health or safety standards," that finding must be included in the citation. Id. § 814(d)(1).

Mine operators cited for violations that both contribute "significantly and substantially" to a mine hazard and result from an "unwarrantable failure," and who receive another "unwarrantable failure" citation within ninety days, receive what are known as section 814(d)(1) withdrawal orders. Id.; see also International Union, United Mine Workers v. Kleppe, 532 F.2d 1403, 1407 (D.C.Cir.1976). Withdrawal orders require mine operators to remove most workers from the area affected by the cited violation until the violation is corrected. 30 U.S.C. § 814(d)(1). Once an operator receives a section 814(d)(1) withdrawal order, any "similar" violations lead automatically to additional withdrawal orders under section 814(d)(2). Mine operators receiving section 814(d)(2) withdrawal orders are not again measured against the more lenient section 814(d)(1) standards until subsequent inspections find no "similar" violations. Id.

Because the parties debate the precise meaning of section 814(d), we quote its key provisions in full:

(1) If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause or effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this chapter. If, during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area affected by such violation ... to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated.

(2) If a withdrawal order with respect to any area in a coal or other mine has been issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent inspection the existence in such mine of violations similar to those that resulted in the issuance of the withdrawal order under paragraph (1) until such time as an inspection of such mine discloses no similar violations. Following an inspection of such mine which discloses no similar violations, the provisions of paragraph (1) shall again be applicable to that mine.

Id. § 814(d).

Appellee Jim Walter Resources operates the Number 7 coal mine in Birmingham, Alabama. Because at the time of the January 31, 1994 inspection at issue here Jim

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[324 U.S.App.D.C. 157] Walter Resources had already received a section 814(d)(1) withdrawal order, it would receive a section 814(d)(2) withdrawal order if an inspector found a health and safety violation "similar" to the violation which prompted the section 814(d)(1) order. During the January 31 inspection, the inspector found a large pile of combustible trash, including paper bags, oily rags, wooden pallets, and a five-foot wide cable spool in the mine's Number 3 entry. Mine safety and health regulations prohibit the accumulation of combustible materials in "active workings," that is, "any place in a coal mine where miners are normally required to work or travel." 30 C.F.R. §§ 70.2(b), 75.400 (1996). A heavy ventilation curtain ran across the top of the pile, dividing the pile into two parts. The bulk of the trash lay on the "inby" side of the curtain--the side closer to the mine's interior. A smaller quantity of trash, including paper bags, cardboard boxes, and a torn garbage bag containing sandwich bags and oily rags, lay on the "outby" side of the curtain--the side closer to the mine shaft and entrance. Issuing a citation for the entire pile of trash, the inspector found the accumulation both "significant and substantial" and the result of an "unwarrantable failure" to comply with health and safety standards.

Jim Walter Resources contested the citation. Following a hearing, an Administrative Law Judge ruled that only the small portion of trash on the outby side of the ventilation curtain violated the regulation because only that portion lay in active workings. Having so determined, the ALJ found that the outby violation was neither "significant and substantial" nor the result of an "unwarrantable failure."

Before the Federal Mine Safety and Health Review Commission, the Secretary challenged the ALJ's "significant and substantial" and "unwarrantable failure" findings concerning the small outby pile as both legally erroneous and unsupported by substantial evidence. Although not contesting the ALJ's finding that the large inby pile of trash was not a violation, the Secretary argued that the ALJ erroneously failed to consider the inby trash when evaluating the seriousness of the outby violation. By a 3-2 vote, the Commission affirmed the ALJ. According to the Commission, it would be "impermissibl[e] [to] use the Secretary's evidence as to the seriousness of nonviolative conduct [the inby trash] to establish that the violative conduct [the outby trash] was [significant and substantial]." Jim Walter Resources, Inc. v. Secretary of Labor, 18 F.M.S.H.R.C. 508, 511 (1996). For the same reason, the Commission ruled that "[t]he operator's conduct in permitting [the] non-violative accumulation cannot ... support a finding of unwarrantable failure as to the violative accumulation." Id. at 512.

In his petition for review, the Secretary advances the same arguments he made before the Commission: the Commission should have considered the inby materials in determining whether the violation contributed "significantly and substantially" to a mine hazard and resulted from an "unwarrantable...