Secretary of Labor, Mine Safety v. Spartan Min., 04-1126.

• Decision Date: 22 July 2005
• Docket Number: No. 04-1126.,04-1126.
• Citation: 415 F.3d 82
• Parties: SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, Petitioner v. SPARTAN MINING COMPANY and Federal Mine Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

415 F.3d 82

SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, Petitioner v. SPARTAN MINING COMPANY and Federal Mine Safety and Health Review Commission, Respondents.

No. 04-1126.

United States Court of Appeals, District of Columbia Circuit.

Argued March 18, 2005.

Decided July 22, 2005.

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

Jerald S. Feingold, Attorney, Mine Safety & Health Administration, argued the cause for petitioner. With him on the briefs was W. Christian Schumann, Counsel.

James S. Crockett, Jr. argued the cause for respondent. With him on the brief was David J. Hardy.

Before: EDWARDS, ROGERS, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

This case concerns dueling interpretations of Department of Labor regulations that require coal mine operators to examine their mines for hazardous conditions before they send miners underground. Although in this case the outcome of the duel is not particularly close, it would not matter if it were. The standard of review that governs interpretive dueling before this court compels us to defer to the Secretary of Labor's interpretation of her own regulations unless it is plainly erroneous or inconsistent with the regulations. Because the Secretary's interpretation is neither, we grant her petition to vacate a Federal Mine Safety and Health Review Commission decision that adopted a conflicting construction.

I

Section 201 of the Federal Mine Safety and Health Act of 1977 (the "Mine Act") directs the Secretary of Labor to issue "improved mandatory health or safety standards for the protection of life and prevention of injuries in coal or other mines." 30 U.S.C. § 811(a). Acting through the Mine Safety and Health Administration (MSHA), see 29 U.S.C. § 557a, the Secretary has promulgated a wide array of such standards, which MSHA enforces by inspecting mines and issuing citations for violations, see 30 U.S.C. § 814(a). A mine operator can contest a citation before the Federal Mine Safety and Health Review Commission (FMSHRC), an adjudicative agency independent of the Department of Labor. See id. § 815(d). After a hearing, FMSHRC can affirm, modify, or vacate the citation. See id. Under the statutory scheme, however, the Commission is required to accord deference to "`the Secretary's interpretations of the law and regulations.'" Secretary of Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1435 (D.C.Cir.1989) (quoting U.S.Code Cong. & Admin.News 1977, p. 3401 S. Rep. 95-181, at 49 (1977)); see RAG Cumberland Res. LP v. FMSHRC, 272 F.3d 590, 595 (D.C.Cir.2001).

Cannelton Industries idled its Shadrick Mine on May 3, 2002. Cannelton Indus., Inc. v. Secretary of Labor, 2002 WL 31696939, 24 FMSHRC 707 (2002) ("ALJ Decision"). Because the company contemplated reactivating the mine at a later date, it needed to keep its electric pumps running to prevent the mine from flooding. The mine's electrical system, including a network of trolley wires that ran throughout the mine, was kept energized. On May 6, 2002, Cannelton began sending "pumpers"—miners who maintain and repair pumps—into the mine to work on the pumps. Id. at 708.

On May 15, 2002, a MSHA inspector issued Cannelton a citation for violating 30 C.F.R. § 75.360(a)(1), a mandatory safety standard that requires certified examiners to conduct a "preshift examination" before a mine operator may send miners underground. In particular, the citation charged that Cannelton had failed to have examiners inspect the energized trolley wires before the pumpers entered the mine. See Secretary of Labor v. Cannelton Indus., Inc., 26 FMSHRC 146, 148 (2004) ("FMSHRC Decision"). The company contested the citation before a FMSHRC administrative law judge (ALJ), who vacated the citation on the ground that the "pumpers' exception" to the preshift examination requirement, 30 C.F.R. § 75.360(a)(2), rendered such an examination unnecessary. See ALJ Decision, 24 FMSHRC at 709-10. On the Secretary's petition for review, the Commission upheld the ALJ's determination. See FMSHRC Decision, 26 FMSHRC at 150-54. The Secretary then petitioned for review by this court.

In September 2004, Cannelton's parent company was the subject of a bankruptcy order, pursuant to which the parent of Spartan Mining Company purchased Cannelton's assets. See Pet'r Br. at 35-38. Spartan now owns the Shadrick mine. See Resp't Br. at 5. On January 12, 2005, we granted Spartan's unopposed motion to substitute itself for Cannelton as respondent.¹

II

It is well-settled that this court must defer to the Secretary's interpretation of a MSHA standard as long as that interpretation is not "plainly erroneous or inconsistent with the regulation." Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1303 (D.C.Cir.2000) (quoting Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994)); see Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C.Cir.2003). It is equally well-settled that we owe the Secretary this deference even if FMSHRC interprets the standard differently. See id.; Akzo Nobel Salt, 212 F.3d at 1303; Energy W. Mining Co. v. FMSHRC, 40 F.3d 457, 462-63 (D.C.Cir.1994); Cannelton Indus., 867 F.2d at 1435.

The regulations at issue in this case are contained in subsections (a) and (b) of 30 C.F.R. § 75.360. The preshift examination requirement is set forth in paragraph (a)(1), which states:

Except as provided in paragraph (a)(2) of this section, a certified person designated by the operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground. No person other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed for the established 8-hour interval.

30 C.F.R. § 75.360(a)(1) (emphasis added). The substance of the required preshift examination is contained in subsection (b), which provides in relevant part:

The person conducting the preshift examination shall examine for hazardous conditions ... at the following locations:

(1) Roadways, travelways and track haulageways where persons are scheduled... to work or travel during the oncoming shift.

....

(3) Working sections and areas where mechanized mining equipment is being installed or removed, if anyone is scheduled to work on the section or in the area during the oncoming shift.

....

(7) Areas where trolley wires or trolley feeder wires are to be or will remain energized during the oncoming shift.

Id. § 75.360(b). Finally, the pumpers' exception — referenced by the phrase in paragraph (a)(1) italicized above — is set forth in paragraph (a)(2):

Preshift examinations of areas where pumpers are scheduled to work or travel shall not be required prior to the pumper entering the areas if the pumper is a certified person and the pumper conducts an examination for hazardous conditions... where the pumper works or travels. The examination of the area must be completed before the pumper performs any other work.

Id. § 75.360(a)(2).

The Secretary interprets these interconnected provisions as follows. Paragraph (a)(1) requires certified persons to conduct a preshift examination before anyone else may enter a mine. Subsection (b) describes the specific areas of the mine in which this examination must be conducted. These include certain areas, such as "roadways" and sections where "equipment is being installed," id. § 75.360(b)(1), (b)(3), that must be examined only if persons are scheduled to work or travel there. They also include other areas, such as those "where trolley wires or trolley feeder wires ... remain energized," id. § 75.360(b)(7), that must be examined even if no one is scheduled to work or travel there. Compare id. (not containing a "scheduled to work" caveat), with, e.g., id. § 75.360(b)(1), (3), (4), (5), (6) (all containing the caveat). Finally, the introductory clause of paragraph (a)(1) — "[e]xcept as provided in paragraph (a)(2)" — directs the reader to the sole exception to this preshift examination requirement. That exception, which permits pumpers to conduct their own examinations, applies only in "areas where pumpers are scheduled to work or travel." Id.

It is undisputed that Cannelton's pumpers properly conducted all required examinations of the areas where they worked or traveled, but that other areas went unexamined. In particular, no one examined areas where trolley wires remained energized, as subsection (b)(7) requires for preshift examinations. Spartan offers a series of reasons — each of which FMSHRC accepted — for reading § 75.360 to include the trolley wire areas within the pumpers' exception.

First, Spartan contends that the opening clause of paragraph (a)(1) — "[e]xcept as provided in paragraph (a)(2)" — means that the pumpers' exception is a complete exemption from the preshift examination requirement, and thus eliminates the obligation to examine non-work areas like those where energized trolley wires are found. The plain language of paragraphs (a)(1) and (a)(2), however, gives the Secretary the better of this argument. The opening clause creates an exception only "as provided in" paragraph (a)(2), and that paragraph does not dispense with the preshift examination requirement altogether. To the contrary, it permits a pumpers' examination to substitute for a preshift examination only in "areas where pumpers are scheduled to work or travel." Id. § 75.360(a)(2). Because the preshift examination requirement otherwise remains applicable, energized trolley wires must be examined before pumpers may enter a mine. See id. § 75.360(b)(7).

Second, Spartan notes paragraph (a)(1)'s declaration that "[n]o person other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed." Id. § 75.360(a)(1) (...