Western Fuels-Utah, Inc. v. Federal Mine Safety & Health Review Com'n, FUELS-UTA
| Decision Date | 24 March 1989 |
| Docket Number | FUELS-UTA,INC,No. 88-1313,88-1313 |
| Citation | 870 F.2d 711 |
| Parties | , 57 USLW 2573, 1989 O.S.H.D. (CCH) P 28,463 WESTERN, Petitioner, v. FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION and the Secretary of Labor, Mine Safety & Health Administration, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Karl F. Anuta, Boulder, Colo., with whom Frederick L. Miller, Jr. and Jeffery N. Luthi were on the brief, for petitioner.
Linda L. Leasure, Atty., Dept. of Labor, with whom George R. Salem, Sol. of Labor, and Dennis D. Clark, Counsel, Dept. of Labor, were on the brief, for respondents. L. Joseph Ferrara, General Counsel, Federal Mine Safety & Health Review Com'n, Washington, D.C., also entered an appearance for respondents.
Before MIKVA and D.H. GINSBURG, Circuit Judges, and ROSENN, * Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
Petitioner Western Fuels-Utah petitions for review of an order issued by respondent Federal Mine Safety and Health Review Commission requiring Western to pay a penalty pursuant to the Federal Mine Safety and Health Act of 1977 (the Mine Act). We deny the petition for review.
The facts are undisputed. On February 28, 1986, Austin Mullens, a miner, was killed in a mine operated by Western when an unsupported portion of the mine's roof fell on him. A sufficient understanding of the facts of this case therefore requires a brief digression into the esoterica of mine safety, as we understand it from the record in this case.
In order to keep an underground mine passage from collapsing, the roof of the passage must be supported. In the mine in which Mullens met with his accident, the support was provided by roof bolts, long steel rods forcibly inserted into holes drilled in the roof. The roof, which is divided into horizontal strata, is thus strengthened, both by the binding together of a number of different strata and by the anchoring of the thin, lower strata to a stronger stratum above.
The insertion of the bolts into the roof is accomplished by a roof-bolting machine. The particular type of roof-bolting machine in use at the time of the accident has two arms or booms. Standing under a supported portion of the roof, two miners (one on each boom) place a flat metal pan the width of the underground passage on the booms. The machine is then moved forward (whilst the miners stay under the supported part of the roof), and the booms raise the pan to the previously unsupported roof, thereby providing temporary support for it. The miners can then safely stand under the roof in order to drill the holes and insert the bolts that will constitute its permanent support.
On the day of the accident, Mullens and his section foreman, Carson Julius, were operating such a roof-bolting machine. In the course of their activities, they put the metal pan in place temporarily to support the roof and proceeded to drill. When Julius's hydraulic drill stopped working because of a kink in a water line attached to it, Mullens and Julius lowered the booms and moved the roof-bolting machine back under the permanently supported portion of the roof, which caused the metal pan to fall to the ground.
After correcting the problem with his drill, Julius, standing under the supported part of the roof, used a four foot long steel rod in an attempt to raise the pan so that it could be placed back on the booms. He soon realized that he would need a longer rod and went to get one, warning Mullens as he did so not to go under the unsupported portion of the roof.
Nonetheless, while Julius was nearby getting the longer rod, Mullens went out under the unsupported roof and attempted to raise the pan with his hands. When Julius noticed what Mullens had done, he twice yelled to Mullens to get out from under the unsupported portion of the roof. Before Mullens responded, a portion of the unsupported roof collapsed, and he was killed.
The Mine Safety and Health Administration investigated the accident and cited Western for a violation of Sec. 104(a) of the Mine Act, 30 U.S.C. Sec. 814(a) (1982). The basis for the citation was 30 C.F.R. Sec. 75.200, which provides in part:
No person shall proceed beyond the last permanent support unless adequate temporary support is provided or unless such temporary support is not required under the approved roof control plan and the absence of such support will not pose a hazard to the miners.
The approved roof control plan at Western's mine permits a miner to go beyond the last permanent support only if he is installing temporary support. Therefore, Western does not dispute that Mullens was in fact not in compliance with Sec. 75.200 when he was killed.
Western contested the citation on legal grounds, but an Administrative Law Judge held that Western was liable for violating Sec. 75.200. The ALJ also found, however, that the resulting accident was due to Mullens's negligence, which Western could not have foreseen; that Western had properly supervised Mullens; that Western's record for training and disciplining miners who failed to comply with safety standards was adequate; and that Western was not negligent in connection with Mullens's death.
In finding Western liable nonetheless, the ALJ reasoned that the Mine Act contemplated liability without regard to whether the operator was at fault, and that the absence of any negligence on Western's part, while relevant to the amount of the penalty to be assessed, was irrelevant to the finding of whether a violation had occurred. The ALJ therefore upheld the citation. The Commission, in turn, affirmed the ALJ. Western then petitioned this court for review of the Commission's decision.
Western's argument is straightforward: properly interpreted, the Mine Act does not authorize the imposition of any penalty upon an operator who has not been at least negligent. The Commission, with equal directness, contends that the Mine Act imposes a regime of strict operator liability, reflected in the terms, the legislative history, and the purposes of that statute. We conclude that the Commission is clearly correct insofar as it interprets the Mine Act to make an operator liable for the acts of another. Because the actor in this case, Mullens, was at fault, however, we need not and do not resolve the issue of whether an operator is liable for the act of another where neither was at fault.
As the parties argue this case, we are presented with the question whether the Mine Act imposes strict (as opposed to negligence) liability. That characterization of the issue is not entirely accurate, however. The narrower question actually presented is whether an operator may be held vicariously liable for the willful violation of the Mine Act by a rank and file miner.
The general rule of both civil and criminal responsibility is that a person is not liable for a harm done unless he caused it by his action (actus reus ), and did so with a certain intent (mens rea ). Strict liability alters this general rule by eliminating the requirement of mens rea; one may then be punished for acting in a forbidden way, even if one was without any particular intent, such as willfulness or negligence. A familiar example is the strict liability of an enterprise for the consequences of its ultrahazardous activity, such as the use of explosives. Vicarious liability, on the other hand, alters the general rule by holding a person liable for the act of another--that is, by attenuating the requirement of an actus reus. A familiar example here is the liability of one coconspirator for the act of another within the scope of the conspiracy.
Vicarious liability may be imposed with or without regard to the intent of the actor; in the latter case, which combines strict and vicarious liability, one person is held liable for an act of another who was not at fault. An innkeeper, for example, may be liable, both civilly and criminally, for serving an alcoholic beverage to a minor even if he has taken action to ensure that minors not be served in his establishment, was unaware that a minor was being served, and could not, in the exercise of reasonable care, have stopped the minor from being served. See W. LaFave and A. Scott, Criminal Law 224-25 (1972). To be sure, in such circumstances the innkeeper may receive a lesser criminal penalty because he is not at fault (just as Western was assessed a lower civil penalty in this case because it was not at fault), but that does not change the fact that he has violated the law.
The Commission argues that the Mine Act creates just such a regime of strict, vicarious liability, and as we will discuss, it does appear that the Commission is correct. Nevertheless, the strict liability question is not presented here, and we do not decide it. See International Union, United Mine Workers v. FMSHRC, 840 F.2d 77, 84 n. 14 (D.C.Cir.1988). For it is undisputed that Mullens did take a forbidden action (actus reus ), and that he did so with the requisite mens rea (negligence). See above at p. 712. Whether Western can be held vicariously responsible for Mullens's act is therefore the narrow issue properly before us.
When faced with a challenge to an agency's interpretation of its enabling statute, the office of this court is to determine whether the statute in question is ambiguous, and only if so, whether the interpretation put forward by the agency "is based on a permissible construction of the statute." Chevron U.S.A. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Because we conclude that the statute unambiguously requires a regime of vicarious liability, we end our analysis there and affirm the Commission's interpretation of the Mine Act without recourse to Chevron's second step.
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