Speed Mining v. Fed. Mine Saf. and Health Rev.
| Decision Date | 11 June 2008 |
| Docket Number | No. 07-2090.,07-2090. |
| Citation | 528 F.3d 310 |
| Parties | SPEED MINING, INCORPORATED, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; Secretary of Labor; Mine Safety and Health Administration, Respondents. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Daniel William Wolff, Crowell & Moring, LLP, Washington, DC, for Petitioner. Robin Ann Rosenbluth, United States Department of Labor, Washington, DC, for Respondents.
ON BRIEF:
Timothy M. Biddle, Natalia R. Medley, Crowell & Moring, LLP, Washington, DC, for Petitioner. Gregory F. Jacob, Solicitor of Labor, Edward P. Clair, Associate Solicitor, W. Christian Schumann, Counsel, Appellate Litigation, United States Department of Labor, Office of the Solicitor, Washington, DC, for Respondents.
Before WILKINSON and KING, Circuit Judges, and JACKSON L. KISER, Senior United States District Judge for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge KING and Senior Judge KISER joined.
Speed Mining, Inc. ("SMI"), an owner-operator of a coal mine in West Virginia, petitions for review of a final decision of the Federal Mine Safety and Health Review Commission. SMI argues that it was wrongly cited for violations committed by an independent contractor it had engaged, because the Secretary of Labor lacks the authority to cite an owner-operator for an independent contractor's violations. In the alternative, SMI contends that the Secretary abused her discretion in issuing the citations.
We reject both of SMI's arguments. It is settled law in this and other circuits that the Secretary possesses the discretionary authority to cite owner-operators, independent contractors, or both for safety violations committed by independent contractors. Moreover, there are no manageable standards in the Mine Act that enable us to review the Secretary's discretionary exercise of her enforcement authority.
Congress enacted the Federal Mine Safety and Health Act, 30 U.S.C. §§ 801-964 (the "Mine Act"), in order to protect the mining industry's "most precious resource—the miner." 30 U.S.C. § 801(a) (2000). To that end, the Mine Act directs the Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"), to develop and promulgate "mandatory health and safety standards" for the mining industry. See id. § 811.
In order to ensure compliance with these safety standards, the Act further directs the Secretary to inspect mines, see id. § 813(a), and issue citations to any mine "operators" the Secretary believes have "violated [the Mine Act], or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to [the Mine Act]," id. § 814(a). The Secretary is also required to propose and assess civil penalties against any operators who violate the Act or MSHA standards. See id. §§ 815, 820(a).
An operator may contest a citation or civil penalty before the Federal Mine Safety and Health Review Commission (the "Commission"). See id. §§ 815(d), 823. The Commission is an independent agency responsible for adjudicating disputes arising under the Mine Act. See id. § 823. The Commission appoints administrative law judges ("ALJs") to review claims in the first instance in trial-like administrative hearings, see id. § 823(d)(1), and the Commission exercises discretionary appellate review over ALJ decisions, see id. § 823(d)(2)(A)(i). Any person "adversely affected or aggrieved" by the Commission's decision may then seek judicial review in the Court of Appeals of either the D.C. Circuit or the circuit where the violation is alleged to have occurred. Id. § 816(a)(1).
Speed Mining, Inc., owns and operates American Eagle Mine ("the Mine"), an underground coal mine in Dry Branch, West Virginia. In 2004, SMI engaged Cowin and Company, Inc. ("Cowin"), to sink an elevator shaft at the Mine. SMI did not check Cowin's history with regard to employee injuries or mine safety violations, even though such data was readily available on MSHA's website. In fact, Cowin's injury rate was substantially above—four to ten times higher than—the national average for the eight preceding years.
SMI's contract with Cowin gave the latter almost complete discretion to sink the shaft as it saw fit. To this end, the contract stated that Cowin was an "independent contractor" and not an "agent" of SMI, and that Cowin "maintain[ed] complete control at all times over its employees and any Subcontractors, Vendors, or others working under" Cowin's supervision. Moreover, the contract granted Cowin "full power and authority to select the means, manner, and method of [its performance] without control or direction by" SMI. Cowin was also responsible for complying with "all laws, rules, orders, and regulations, federal, state, and local," applicable to the sinking of the mine shaft.
In August 2004, Cowin began constructing the elevator shaft. On August 31, September 2, and September 13, a MSHA official inspected Cowin's shaft-sinking site. Each time, the inspector found violations of MSHA safety standards. Over this two week period, the inspector issued four citations to Cowin.
On the same dates, the MSHA inspector also visited an electrical substation at the Mine. SMI had retained American Electrical, Inc. ("AEI"), another independent contractor, to install equipment at the substation. On August 31, the inspector discovered that AEI had violated a MSHA regulation, and he thus issued AEI a citation. The inspector also twice determined that SMI had failed to provide hazard training for AEI employees, despite being compelled to do so under MSHA regulations. See 30 C.F.R. § 46.12 (2007). The inspector cited SMI for these violations.
On September 29, 2004, an accident occurred at Cowin's shaft-sinking site: a crane hoist failed and, as a result, a six-ton bucket fell and landed next to the mine shaft opening. Although no one was seriously injured during the accident, the free-falling bucket presented a severe safety risk. If the bucket had fallen a few feet to the side (over the mine shaft), it would have seriously injured, and possibly killed, the five Cowin employees working in the shaft at the time of the accident.
After investigating the accident, MSHA determined that six violations of MSHA safety standards had occurred: failure to correct defects in the crane; failure to adequately train the crane operator; failure to comply with the MSHA-approved shaft sinking plan (two separate violations); failure to remove the crane from service, despite the fact that two safety switches were not functional; and failure to perform an adequate pre-operational check on the crane. The Secretary thus issued both Cowin and SMI citations for each of these six violations. The citations received by Cowin and SMI were nearly identical in every respect, except for the fact that SMI was charged with a lower degree of negligence.
SMI subsequently contested the citations arising from the crane hoist accident. Before an ALJ, SMI claimed that the Secretary abused her discretion in citing SMI "for violations for which an independent contractor alone was responsible." SMI's arguments were largely based on the Commission's decision in Twentymile Coal Co., 27 FMSHRC 260 (2005). In Twentymile, the Commission held that the Secretary abused her discretion in citing an owner-operator for violations committed by an independent contractor.
Relying on this decision, the ALJ agreed with SMI and held that the Secretary had abused her discretion in citing SMI in connection with the September 29, 2004 accident. The Secretary subsequently appealed the ALJ's decision. The Commission granted the Secretary's appeal, and then stayed the case pending the D.C. Circuit's review of Twentymile.
In July 2006, the D.C. Circuit reversed the Commission's Twentymile decision. See Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C.Cir.2006). The D.C. Circuit held that the Secretary possessed discretionary authority to "cite owner-operators, their independent contractors, or both for safety violations committed by the independent contractors," and that the Commission lacked the authority to review these discretionary decisions made by the Secretary. Id. at 161.
In light of the D.C. Circuit's Twentymile decision, the Commission remanded SMI's case to the ALJ for reconsideration. Upon remand, the ALJ affirmed all of the Secretary's citations and assessed penalties for SMI's violations. The Commission declined review, and the ALJ's decision thus became a final order of the Commission and subject to judicial review. 30 U.S.C. § 823(d)(1) (2000).
On October 30, 2007, SMI filed a timely appeal to this court. In its appeal, SMI argues that the Mine Act bars the Secretary from citing an owner-operator for violations committed by an independent contractor. In the alternative, SMI contends that, even if the Secretary does have such discretionary authority, she abused her discretion in this case. We review each claim in turn.
We first consider SMI's argument that the Mine Act bars the Secretary from citing an owner-operator for violations committed by an independent contractor.
The Mine Act places the "primary responsibility" for preventing unsafe mining conditions on mine "operators." 30 U.S.C. § 801(e) (2000). The Act defines an "operator" as "any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine." Id. § 802(d).
In order to encourage operator compliance, the Act provides the Secretary with numerous regulatory tools. For example, the Mine Act grants the Secretary the following power to cite mine operators:
If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator . . . has violated [the Act], or any...
To continue reading
Request your trial
- Deese v. Esper
-
Cobra Natural Res., LLC v. Fed. Mine Safety & Health Review Comm'n
...administrative immunity conflicts with the “ ‘strong presumption’ in favor of judicial review of agency action.” Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 316 (4th Cir.2008) (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986)). By r......
-
Kravitz v. U.S. Dep't of Commerce
...at 674–75. There is a strong presumption favoring judicial review of agency action. See Speed Mining, Inc. v. Fed. Mine Safety and Health Review Com'n , 528 F.3d 310, 316–17 (4th Cir. 2008) (internal citations and quotation marks omitted); see also Lincoln v. Vigil , 508 U.S. 182, 191, 113 ......
-
Casa De Md. v. U.S. Dep't of Homeland Sec.
...is a ‘strong presumption’ in favor of judicial review of agency action," Speed Mining, Inc. v. Fed. Mine Safety & Health Review Comm’n , 528 F.3d 310, 316 (4th Cir. 2008) (quoting Bowen v. Mich. Acad. of Family Physicians , 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) ), the APA......