Secretary of Labor v. Twentymile Coal Co.

• Citation: 411 F.3d 256
• Decision Date: 10 June 2005
• Docket Number: No. 04-1292.,No. 04-1312.,04-1292.,04-1312.
• Parties: SECRETARY OF LABOR, Mine Safety And Health Administration, Petitioner/Cross-Respondent, v. TWENTYMILE COAL COMPANY and Federal Mine Safety and Health Review Commission, Respondent/Cross-Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

411 F.3d 256

SECRETARY OF LABOR, Mine Safety And Health Administration, Petitioner/Cross-Respondent, v. TWENTYMILE COAL COMPANY and Federal Mine Safety and Health Review Commission, Respondent/Cross-Petitioner.

No. 04-1292.

No. 04-1312.

United States Court of Appeals, District of Columbia Circuit.

Argued May 16, 2005.

Decided June 10, 2005.

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

Jerald S. Feingold, Attorney, Secretary of Labor, argued the cause for petitioner/cross-respondents. With him on the brief was W. Christian Schumann, Counsel.

Ralph Henry Moore, II argued the cause for respondent/cross-petitioner. With him on the brief were Karen L. Johnston and Trisha L. Culp.

Before: SENTELLE, RANDOLPH and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge.

This case comes before us on cross-petitions for review of an order of the Federal Mine Safety and Health Review Commission wherein the Commission ruled that Twentymile Coal Co. ("Twentymile") violated the mandatory training standard set forth at 30 C.F.R. § 48.7(c) (2002), but that the proposed penalty assessment was not issued within a reasonable time. Sec'y of Labor v. Twentymile Coal Co., 26 F.M.S.H.R.C. 666 (Aug. 12, 2004) ("Commission Order"). Because we agree with the Commission that Twentymile did violate the mandatory training standard, we deny Twentymile's petition for review. But because we disagree with the Commission and hold that the proposed penalty assessment was issued within a reasonable time, we grant the Secretary of Labor's petition for review, vacating the order of the Commission and remanding the matter to the Commission for further proceedings not inconsistent with this opinion.

I. BACKGROUND

A. The Accident & Investigation

Twentymile operates the Foidel Creek Mine ("the mine"), a large underground coal mine in Colorado. Among its three hundred miners was Kyle Webb, who had worked on the crew of Matthew Winey for more than four years. 26 F.M.S.H.R.C. at 668. Winey, in turn, worked under Kevin Olson, acting shift supervisor. Id.

The geological conditions at the mine required that rock sometimes be extracted with the coal. The rock-coal mix was transported away from pure coal extract to prevent accidental commingling. A chute was designed to facilitate the process. The 45-to-50-foot chute, five feet square, was placed in a vertical shaft twelve feet in diameter. The rock-coal mix was dumped into the chute from a conveyer belt, where it fell from one level of the mine to the level below. Id at 667. The chunks falling through the chute ranged in diameter from one to eight inches; baffles slowed the fall of the chunks and prevented damage to the box or conveyer belt at the lower level. Miners could maintain the chute by climbing the ladder alongside the chute and opening one of four doors that accessed the inside of the chute. Id.

This particular chute was a new addition to the mine at the time of the accident, and differed from pre-existing chutes in that it was "slightly slanted ... instead of [ ] complete[ly] vertical," ALJ Tr. 171 (May 29, 2002), but the clearing of chutes in general was nothing new to Twentymile. Other chutes clogged. According to one mine employee, the clogging of chutes was a "recurring problem," happening every four to six months. 26 F.M.S.H.R.C. at 677.

On June 6, 2000, after only ten days of operation, the vertical chute in the mine clogged. Id. at 667. Olson assigned Winey to unplug the chute; at some point after this team began working to clear the chute, Webb climbed the ladder and attempted to unclog it. Id. at 668. Neither Winey nor beltman Rick Fadely instructed Webb to climb the ladder, and Winey did not ask Webb what he was doing. Id.

The material in the chute began to move; Webb fell from the ladder and landed on a platform, and the chute's rock-coal mixture fell upon him. Id. Webb was airlifted to a local hospital where he was treated for "serious, but non-fatal, head injuries." Id.

R. Lincoln Derick, the mine's safety manager, was apprised of the incident: he contacted MSHA Inspector Philip Gibson. Both went to the mine with various law-enforcement and mine officials. Id. Following a week's investigation, Gibson issued an order, pursuant to Mine Act section 104(g)(1), 30 U.S.C. § 814(g)(1), charging Twentymile with a violation of 30 C.F.R. § 48.7(c), which provides that "[m]iners assigned a new task ... shall be instructed in the safety and health aspects and safe work procedures of performing such task." Six months later, on January 4, 2001, MSHA issued an accident investigation report. After another seven months had passed, on July 31, 2001, the report and an accompanying assessment report were sent to the U.S. Department of Labor's Assessment Office. On November 9, 2001, MSHA proposed a specific penalty assessment and the case proceeded to trial before an administrative law judge ("ALJ"). 26 F.M.S.H.R.C. at 669-70.

B. Proceedings Before the ALJ

Twentymile filed a notice of contest; on August 1, 2000, the contest was stayed pending issuance of the penalty assessment. Once MSHA issued its proposed penalty assessment in November 2001, the stay was lifted. See Commission Order, 26 F.M.S.H.R.C. at 670.

The ALJ held that the clearing of the rock chute constituted a "new task" under 30 C.F.R. § 48.7(c) such that the mine was required to train the workers for the matter prior to engaging the chute. Twentymile Coal Co. v. Secretary of Labor, 25 F.M.S.H.R.C. 373 (July 14, 2003) ("ALJ Order"). The clearing of the chute was a "task" under section 48.7(c) because it fit the definition provided at section 48.2(f): A "task" is "a work assignment that includes duties of a job that occur on a regular basis and which requires physical abilities and job knowledge." 30 C.F.R. § 48.2(f). The ALJ held that the clearing of the chute was a matter that would occur on a "regular" basis even though it had not occurred previously at that ten-day-old chute and was not subject to a fixed schedule. See Commission Order, 26 F.M.S.H.R.C. at 670; ALJ Order, 25 F.M.S.H.R.C. at 383-84.

The violation was deemed "significant and substantial" based on the ALJ finding that there was a reasonable likelihood that the hazard would result in an injury or severe illness. ALJ Order, 25 F.M.S.H.R.C. at 385-86. The ALJ ordered a penalty despite the seventeen-month span of time between the Inspector's June 16, 2000 order and the November 9, 2001 MSHA penalty assessment. Id. at 386-88. He held that the reasons for delay — to wit, a shift in personnel in MSHA offices and "a failure by the new employee to understand his duties" — were "understandable" and that Twentymile suffered no prejudice from the delay. Id. at 387-88. The ALJ reduced the proposed $6,000 penalty to $1,500. Id. at 389.

C. Proceedings Before the Commission

Twentymile appealed the ALJ's decision to the Commission. Before the Commission, Twentymile again argued, inter alia, that the unclogging of the chute was not a "new task" under sections 48.7(c) and 48.2(f) because it was not a process performed on a regular basis. The Commission accepted the Secretary's argument that substantial evidence supported the ALJ's findings regarding the recurring nature of unclogging the chute. Commission Order, 26 F.M.S.H.R.C. at 677. The fact that "[j]ams, clogs, or other failures are, of course, not scheduled events," id. at 678, was not fatal to the finding that "the rock chute would reasonably be anticipated to clog or jam on a recurring basis," id. The Commission held that

[w]here a task cannot be scheduled, but is reasonably foreseeable as a recurring duty with discrete health and safety concerns, an operator is expected to provide proper planning and communication to ensure that workers performing the task receive appropriate training. To hold otherwise would be to defer training necessary to guard against the hazards associated with the job until an unfortunate experience ratifies the need for task training.

Id.

On the question of unreasonable delay between the close of the investigation and the issuance of the civil penalty, however, the Commission reversed the decision of the ALJ. The Commission held that the Secretary failed to show "adequate cause for the delay so as to render it `reasonable.'" Id. at 682-83. The Commission held that "the bulk of the delay" was due to "unexplained delays" and "outright neglect" on the part of the Secretary's personnel. Id. at 684. While the Commission admitted that it "could possibly excuse delay in either the preparation of the accident report or the processing of the proposed penalty, the cumulative effect of the two significant delays" exceeded "reasonable" limits. Id. (emphasis in original). Therefore, the Commission "invoke[d] the extraordinary remedy of vacating the civil penalty." Id. at 685.

At the oral argument, the Commission raised sua sponte the question of whether the section 104(g) order met the requirements of the Mine Act despite its lack of specific identification of the miners subject to its coverage. In the order, the Commission concluded that the miner-specific order issued on June 16, 2000, pursuant to section 104(g) of the Mine Act, 30 U.S.C. § 814(g), was not sufficiently specific; the Commission held that the order was void ab initio. Commission Order, 26 F.M.S.H.R.C. at 672-75. But instead of vacating the order, the Commissioners elected to "modify" the section 104(g) order to a section 104(a) citation. Id. at 675.

The Secretary requested reconsideration of the Commission's decision, but the request was denied. Twentymile and the Secretary both filed timely petitions for review of the Commission's decision. Those petitions are consolidated before us.

II. ANALYSIS

A. "New Task"

As noted above, the mine safety regulation at issue requires that "[m]iners assigned a new task ... be instructed in the safety...