Walker Stone Co., Inc. v. Secretary of Labor, 97-9528

• Decision Date: 22 September 1998
• Docket Number: No. 97-9528,97-9528
• Citation: 156 F.3d 1076
• Parties: 1998 O.S.H.D. (CCH) P 31,663, 98 CJ C.A.R. 5128 WALKER STONE COMPANY, INC., Petitioner, v. The SECRETARY OF LABOR; Federal Mine Safety and Health Review Commission, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1076

156 F.3d 1076

1998 O.S.H.D. (CCH) P 31,663, 98 CJ C.A.R. 5128

WALKER STONE COMPANY, INC., Petitioner, v. The SECRETARY OF LABOR; Federal Mine Safety and Health

Review Commission, Respondent.

No. 97-9528.

United States Court of Appeals, Tenth Circuit.

Sept. 22, 1998.

Katherine Shand Larkin, of Jackson & Kelly, Denver, CO (Keith R. Henry of Weary, Davis, Henry, Struebing & Troup, Junction City, KS, with her on the briefs), for Petitioner.

Jerald S. Feingold, of U.S. Dept. of Labor, Office of Solicitor, Arlington, VA (J. Davitt McAteer, Acting Solicitor of Labor, Edward P. Clair, Associate Solicitor, W. Christian Schumann, Counsel, Appellate Litigation, with him on the brief), for Respondent.

Before SEYMOUR, Chief Judge, and McWILLIAMS and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Walker Stone Company, Inc. ("Walker Stone") appeals the assessment of a civil penalty under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. This court exercises jurisdiction pursuant to 30 U.S.C. § 816(a)(1) and holds that breaking up rocks which are obstructing a crusher constitutes "repairs" or "maintenance" of machinery for purposes of 30 C.F.R. § 56.14105. This court affirms both the Federal Mine Safety and Health Review Commission's ("Commission") determination that Walker Stone violated § 56.14105 and the penalty assessed for that violation.

BACKGROUND

The facts are generally undisputed. On June 25, 1993, the primary impact crusher at Walker Stone's Kansas Falls Plant became clogged by several large rocks, stalling the crusher's engine. Walker Stone employees undertook to break up the rocks and remove them from the crusher. Initially, Dan Robert Boisclair and another employee went inside the crusher to dislodge a boulder by breaking it up with a sledgehammer. After they exited, the crusher operator, Roy Brooner, jogged the rotor by pressing the start button on the engine with the clutch still engaged to see whether the impeller would rotate. The crusher still was not operational.

After conferring with Brooner, employee Bill Scott then went below the impact rotor to check for additional rocks which could be causing the obstruction. While Scott was under the crusher, Boisclair climbed back inside the crusher to remove some smaller rocks with his hunting knife. Employee Frank Esterly knew that Boisclair had re-entered the crusher but did not inform Brooner. Scott told Esterly that he thought he had removed the rock causing the obstruction. Esterly warned Boisclair to hurry out of the crusher because Scott was almost finished. Before Boisclair was able to fully exit the crusher, however, Scott left the bottom of the crusher and told Brooner that he thought all was clear. Brooner again jogged the rotor. This time the impeller turned and Boisclair was caught between the impeller drum and the crusher wall, resulting in his death.

An investigation of the accident by the Mine Safety and Health Administration ("MSHA") led to the issuance of two citations for violations of mandatory safety standards promulgated by the Secretary of Labor ("Secretary") pursuant to the Federal Mine Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. § 801 et seq. ¹ The citation which is the subject of this appeal was issued for a violation of a mandatory safety standard, 30 C.F.R. § 56.14105, ² which provides:

Repairs or maintenance of machinery or equipment shall be performed only after the power is off, and the machinery or equipment blocked against hazardous motion. Machinery or equipment motion or activation is permitted to the extent that adjustments or testing cannot be performed without motion or activation, provided that persons are effectively protected from hazardous motion.

Walker Stone contested the citation and proposed penalty before an administrative law judge of the Federal Mine Safety and Health Review Commission. Following an evidentiary hearing, the administrative law judge vacated the citation on the ground that breaking up the rocks did not constitute repairs to or maintenance of the crusher and therefore the mandatory safety standard, 30 C.F.R. § 56.14105, was inapplicable. See Secretary of Labor v. Walker Stone Co., 17 F.M.S.H.R.C. 600, 604-05 (1995) [hereinafter Walker Stone I ]. The judge noted that "[t]he only thing [employees] were actually working on were the rocks" and concluded that the safety standard "was written to apply to repair or maintenance evolutions, as those terms are commonly used and not [to] relatively minor annoyances that arise during the on-line production usage of the machinery or equipment, that do not involve any adjustments, maintenance or repairs to the equipment itself." Id. Because the administrative law judge held that the safety standard was inapplicable, he did not address whether Walker Stone violated the standard by failing to effectively protect its employees from hazardous motion.

The Commission reversed the administrative law judge's determination that the mandatory safety standard was inapplicable. See Secretary of Labor v. Walker Stone Co., 19 F.M.S.H.R.C. 48 (1997) [hereinafter Walker Stone II ]. Relying on dictionary definitions of the words "repair" and "maintenance," the Commission held that the language of § 56.14105 "clearly and unambiguously reaches ... the breakup and removal of rocks clogging [a] crusher." Id. at 51. The Commission reasoned that "the effect of removing the rock was to eliminate the malfunctioning condition and enable the crusher to resume operation," and that the work was therefore "covered by the broad phrase 'repairs or maintenance of machinery or equipment.' " Id. The Commission further found that "the record as a whole supports no other conclusion" than that Walker Stone violated § 56.14105 by failing to protect Boisclair from the hazardous motion of the crusher and that the violation was significant and substantial ("S & S"). ³ Id. at 52-53. The Commission remanded the case to the administrative law judge for assessment of a civil penalty. See id. at 53.

On remand, the administrative law judge assessed a $7500 civil penalty. See Secretary of Labor v. Walker Stone Co., 19 F.M.S.H.R.C. 741, 744 (1997) [hereinafter Walker Stone III ]. The Commission denied Walker Stone's petition for discretionary review of the administrative law judge's decision on remand. On appeal to this court, Walker Stone challenges both the Commission's determination that it violated 30 C.F.R. § 56.14105 and the administrative law judge's penalty assessment.

DISCUSSION

A. Applicability of 30 C.F.R. § 56.14105

At the threshold, this court must determine whether the applicable safety regulation is either clear or ambiguous. When the meaning of a regulatory provision is clear on its face, the regulation must be enforced in accordance with its plain meaning. See Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C.Cir.1990); Secretary of Labor v. AMAX Coal Co., 19 F.M.S.H.R.C. 470, 474 (1997). When a regulation is ambiguous, however, this court must give substantial deference to the interpretation given the regulation by the agency charged with its administration. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150-51, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). An agency's interpretation of its own regulations will be given effect "so long as it is reasonable, that is, so long as the interpretation sensibly conforms to the purpose and wording of the regulations." Martin, 499 U.S. at 150-51, 111 S.Ct. 1171 (citation and internal quotations omitted).

The administrative law judge and the Commission both relied on their own respective perception of the plain language of the applicable regulation but reached opposite results. Compare Walker Stone I, 17 F.M.S.H.R.C. at 605 with Walker Stone II, 19 F.M.S.H.R.C. at 51. The administrative law judge noted that the safety standard "speaks to 'repairs' to or 'maintenance' of the machinery or equipment." Walker Stone I, 17 F.M.S.H.R.C. at 604. He concluded that because the employees were not performing work on the crusher itself, working instead on the rocks, breaking them up and removing them from the crusher, the safety standard was inapplicable. See id. at 604-05.

The Commission, on the other hand, agreed with the Secretary's interpretation of the regulation and held that the removal of rocks constituted repairs or maintenance of the crusher. See Walker Stone II, 19 F.M.S.H.R.C. at 51. The Commission defined "repair" and "maintenance" as follows:

The term "repair" means "to restore by replacing a part or putting together what is torn or broken: fix, mend ... to restore to a sound or healthy state: renew, revivify...." Webster's Third New International Dictionary, Unabridged 1923 (1986). The term "maintenance" has been defined as "the labor of keeping something (as buildings or equipment) in a state of repair or efficiency: care, upkeep ..." and "[p]roper care, repair, and keeping in good order." Id. at 1362; A Dictionary of Mining, Mineral, and Related Terms 675 (1968).

Id. (ellipses and alteration in original). Relying on those definitions, the Commission reasoned that "the obstructing rock caused the crusher's drive motor to stall, rendering the crusher defective or inoperable until the rock was removed" and therefore the "removal of rock was necessary to 'restore [the crusher] to a sound state' or 'keep [it] in a state of repair or efficiency.' " Id. (alterations in original). Because "the effect of removing the rock was to eliminate the malfunctioning condition and enable the crusher to resume operation," the Commission concluded that "the removal of rock to restore the crusher to working condition is clearly covered by the broad phrase 'repairs or maintenance of machinery or equipment.' " Id.

Neither the administrative law judge's interpretation nor the contrary interpretation adopted by...