<DOC>
[DOCID: f:thunder.wais]

 
THUNDER BASIN COAL COMPANY
April 24, 1996
WEST 94-148-R

           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006

                            April 24, 1996

SECRETARY OF LABOR, :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :    Docket Nos. WEST 94-148-R
     v.                           :                WEST 94-303
                                  :
THUNDER BASIN COAL COMPANY        :

BEFORE:  Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners

                               DECISION

BY:  Jordan, Chairman; Doyle, Holen and Riley, Commissioners

     This consolidated contest and civil penalty proceeding, arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.  801
et. seq. (1994) ("Mine Act or Act"), involves a citation issued by
the Department of Labor's Mine Safety and Health Administration
("MSHA") to Thunder Basin Coal Company ("Thunder Basin") alleging
a violation of section 109(a) of the Act, 30 U.S.C.  819(a), because
Thunder Basin failed to post an order of temporary reinstatement on
the mine bulletin board.[1]  After receiving cross-motions for summary
decision, Administrative Law Judge Arthur J. Amchan issued a Summary
Decision in favor of Thunder Basin and vacated the subject citation.
16 FMSHRC 1142 (May 1994) (ALJ).  For the reasons that follow, we
affirm, in result, the judge's determination that section 109(a) of
the Act was not violated.

                                  I.

                  Factual and Procedural Background

     On November 2, 1993, Judge Amchan issued an order of temporary
reinstatement requiring Thunder Basin to temporarily reinstate three
discharged miners at its Black Thunder Mine, located in Campbell
County, Wyoming.  On November 22, 1993, in response to a complaint
written pursuant to section 103(g), 30 U.S.C.  813(g), MSHA Inspector
James Beam conducted an inspection of the mine to determine whether
the November 2 temporary reinstatement order had been posted on the
mine bulletin board. 16 FMSHRC at 1142-43.  When he found that the
order had not been posted, the inspector issued a citation alleging a
violation of section 109(a) of the Act.  Id. at 1143. Thunder Basin
concedes that the order had not been posted but claims the Act does
not require posting of such orders.

     The judge determined that no violation occurred.  He concluded
that the language of section 109(a) is not clear on its face.  Id.
In analyzing the statutory language, the judge determined that the
last sentence of section 109(a) must be read in context with the rest
of the section: . . . "[h]ad Congress intended that all decisions
. . . be posted, it would not have modified the second sentence . . .
with the phrase `required by law or regulation to be posted.'"  Id.
at 1143-44, quoting 30 U.S.C.  819(a).  The judge therefore concluded
"that what must be posted under the last sentence of section 109(a)
are documents, that are required to be posted pursuant to another
statutory provision or by a regulation . . . ."  Id. at 1144. The
judge reasoned that the documents referred to in section 109(a) do
not include temporary reinstatement orders from the Commission.  Id.

     The judge declined to accord deference to the Secretary's
interpretation of section 109(a) that the requirement to post
Commission decisions is implicit.  Id. at 1146.  He found no written
agency policy or interpretation regarding posting of Commission
decisions.  Id. at 1145.  Thus, he concluded, "[a] subjective
understanding of what the statute requires, which is not obvious
and has never been communicated to the public, is not an agency
interpretation entitled to deference under Chevron."  Id. at 1146,
citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-43 (1984).  The judge also determined that, even if
section 109(a) requires posting of Commission decisions, a temporary
reinstatement order, which "is in the nature of an interim order" need
not be posted.  Id.

                                 II.

                             Disposition

     On review, the Secretary maintains that the second and third
sentences of section 109(a) have separate and distinct meanings, and
that the decisions of the Commission are implicitly included among
the documents referred to in the third sentence of section 109(a).
S. Br. at 5-6.  The Secretary argues that his interpretation of
section 109(a) is consistent with the language and purpose of the Act,
and should be accorded deference.  Id. at 4.  The Secretary assigns
error to the judge's determination that posting was not required because
the subject temporary reinstatement order was only an "interim order,"
asserting that the subject order is a conclusive, substantive, appealable
order.  Id. at 12.  Finally, the Secretary states that, unless section
109(a) is interpreted to include decisions issued by the Commission,
the word "decision" in the third sentence is rendered meaningless.  Id.
at 5-6 n.1.  Thunder Basin argues that the only orders, citations, notices
or decisions that are required to be given to an operator under the Act
are those issued by the Secretary.  T.B. Br. at 7-8, 12.

     The first inquiry in statutory construction is "whether Congress
has directly spoken to the precise question at issue."  Chevron, 467
U.S. at 842.  If a statue is clear and unambiguous, effect must be
given to its language.  Id. at 842-43.  Deference to an agency's
interpretation of the statute may not be applied "to alter the clearly
expressed intent of Congress."  K Mart Corp, v.  Cartier, Inc., 486
U.S. 281, 291 (1988) (citations omitted).  Traditional tools of
construction, including examination of a statute's text and legislative
history, may be employed to determine whether "Congress had an intention
on the precise question at issue," which must be given effect.  Coal
Employment Project v. Dole, 889 F. 2d 1127, 1131 (D.C. Cir. 1989)
(citations omitted).  "In ascertaining the plain meaning of the statute,
the court must look to the particular statutory language at issue, as
well as the language and design of the statute as a whole."  K Mart,
486 U.S. at 291. (citations omitted).  The examination to determine
whether there is such a clear Congressional intent is commonly referred
to as a "Chevron I" analysis.  Coal Employment Project, 889 F. 2d at
1131.[2]

     Section 109(a), together with the three other subsections[3]
of section 109, entitled "Posting of Orders and Decisions," sets
forth specific requirements as to where, how, and to whom documents
are to be conveyed and how they are to be posted at mines.  In section
109(a), Congress required operators to post "any order, citation, notice
or decision required  by this Act to be given to an operator."  The
question to be answered is whether Congress intended to include documents
issued by the Commission when it referred to "order[s] . . . or decision[s]
required by this Act to be given to an operator. "  No provision in the
Mine Act specifically requires Commission decisions or orders to be given
to an operator.  The orders, citations, notices and decisions issued by
the Secretary, however, are subject to this explicit requirement.  See
sections 101(c), 104(a), (b), (d)  and (e), 105(d) and 107(d) of the Mine
Act, 30 U.S.C.  811(c), 814(a), (b), (d) and (e), 815(d) and 817(d).
This distinction in itself would appear to provide a sufficiently compelling
indication that the decisions and orders referenced in section 109(a) were
intended by Congress to include only those issued by the Secretary, and
not the rulings issued by the independent adjudicative body Congress
established in section 113 of the Act, 30 U.S.C.  823.[4]

     Any remaining doubt on this issue, however, is removed by
reference to the service requirement contained in section 109(b).
That provision states:  "The Secretary shall (1) cause a copy of
any order, citation, notice or decision required by this Act to be
given to an operator to be mailed immediately to a representative of
the miners in the affected coal or other mine, and (2) cause a copy
thereof to be mailed to the public official or agency of the State
charged with administering State laws, if any, relating to health or
safety in such mine."  (emphasis added).

     The Secretary did not attempt to distinguish the application
of section 109(a) from the application of section 109(b).  If, as
the Secretary urges, the phrase "any order, citation, notice or
decision required by this Act to be given to an operator" includes
orders and decisions issued by the Commission, not only would the
operator be required to post those documents on the bulletin board,
as required by the last sentence of section 109(a), but the Secretary
would be required, in accordance with section 109(b), to "immediately"
mail those same documents to the representative of the miners, and
appropriate state officials.[5]  That Congress did not intend such result
is clear and the statute must be construed to effectuate that intent.
The reference to decisions and orders in the last sentence of section
109(a) unambiguously includes only those decisions and orders "required
by this Act to be given to an operator."  (emphasis added).  The only
provisions of the Act that require decisions and orders to be given to the
operator pertain to the decisions and orders issued by the Secretary.[6]
The second sentence of section 109(a), which refers to "orders, citations,
notices and decisions," does not impose a posting requirement but specifies
the manner in which posting is to be effectuated (i.e., "There shall be a
bulletin board . . . located at a conspicuous place . . . protected against
damage by weather . . . ).  Id. (emphasis added).  Accordingly, we conclude
that section 109(a) is clear on its face and does not require the posting
of temporary reinstatement orders on mine bulletin boards.

                                 III.

                              Conclusion

     For the foregoing reasons, the judge's summary decision is
affirmed in result.[7]

                                      ______________________________
                                      Mary Lu Jordan, Chairman

                                      ______________________________
                                      Joyce A. Doyle, Commissioner

                                      ______________________________
                                      Arlene Holen, Commissioner

                                      ______________________________
                                      James C. Riley, Commissioner

Commissioner Marks, dissenting:

     The majority has concluded that the meaning of section 109(a)
of the Act, 30 U.S.C.  819(a) is clear and that the Secretary's
interpretation is wrong.  I disagree and therefore dissent.

     I agree with the Secretary's view, that section 109(a) is
ambiguous.  I also agree with the Secretary's view, that the
Commission should defer to the Secretary's interpretation if
the Commission concludes that his interpretation is reasonable.
Accordingly, for the reasons that follow, I conclude that section
109(a) requires the posting of Commission issued temporary reinstatement
orders. However, for reasons to be discussed, I believe the Secretary's
failure to provide Thunder Basin with sufficient notice of his
interpretation requires that the citation be vacated.

                     Section 109(a) is ambiguous

     In determining that no violation occurred, my colleagues
conclude that section 109(a) is clear, and that it does not
require posting of Commission temporary reinstatement orders.
In so doing, they do not address the question of deference to
the Secretary.

     In parsing the terms of section 109(a), the Secretary
contends that the second sentence reference to documents
that are specifically "required by law or regulation to be
posted," relates to: notices of proposed rulemaking under
section 101(e) of the Act, 30 U.S.C.  811(e); the designation
of miners' representatives specified under 30 C.F.R.  40.4 (1995);
or petitions for modification filed pursuant to 30 C.F.R.  44.9.
S. Br. at 5.  Whereas, sentence three refers to different documents,
ie., the Act "explicitly requires that documents referred to[,]
be posted if they are `required by this Act to be given to the
operator.'" Id.  The Secretary suggest that this third sentence
reference includes all citations and orders issued by the Secretary
and given to the operator pursuant to 30 U.S.C.  814(a), (b),
(d), (e), and 817(a).  Significantly, the Secretary also contends
that, by implication, the provisions of the Act relating to the
issuance of decisions by the Commission are also included,  (30 U.S.C.
 815(c)(2) and (c)(3), 823(d)(1), 823(d)(2)(B), and (d)(2)(C),
and 823(e)).  Id.

     After rejecting the Secretary's interpretation of section
109(a) the judge offered his own interpretation of that section
and in doing so effectively provided no independent meaning or
purpose to the third sentence.  16 FMSHRC at 1143-44; see S. Br.
at 3, 6-7.  He failed to distinguish the limitation contained in
sentence two, requiring the posting of documents . . .  required
by law or regulation to be posted, from the condition set forth
in sentence three, requiring the posting of documents . . .  required
by this Act to be given to an operator.  In analyzing section 109(a)
as a whole, he effectively combined the two sentences and determined
that the third sentence is limited in the same way as the second
sentence.  "Thus, I conclude that what must be posted under the
last sentence [third] of section 109(a) are documents, that are
required to be posted pursuant to another statutory provision or
by a regulation."  16 FMSHRC at 1144.

     Contrary to the judge and my colleagues (see slip op. at 5-
6) , both parties seem to agree that the second and third sentences
have distinct and separate scopes.  S. Br. at 3, 5-7; T.B. Br. at
11-12.  However, the principle distinction between their respective
positions is that the Secretary construes the third sentence, i.e.,
documents required to be given to the operator, to include, by
implication, Commission decisions.  Because the Act does not expressly
provide that such decisions be given to the operator, Thunder Basin
rejects the Secretary's interpretation and urges a strict construction
of the terms in section 109(a).

     In my opinion, the Secretary's interpretation is reasonable.
It gives effect to each sentence in disputed paragraph (a), and is
consistent with the overall purpose of section 109 to ensure that
miners, as well as operators, are informed about the health and
safety conditions of their work environment, and to ensure that the
miners' participation in that process is facilitated by informing
them of the rights and protections provided to them under the law.
See S. Br. at 8; T.B. Br. at 12.

     When distilled to its essence, Thunder Basin's assertions
that the Secretary's interpretation is ambiguous and unreasonable
fall into two arguments.  First, Thunder Basin asserts that adoption
of the Secretary's interpretation that Commission decisions are among
the documents "required . . . to be given to an operator," would
impose an affirmative duty upon the Commission to "give" and to
"deliver" those documents, and that such duty is a usurpation of the
Commission's power to fashion "appropriate relief."  T.B. Br. at 8-9.

     In my opinion, adoption of a construction of section 109(a)
consistent with the Secretary's interpretation would in no way
diminish or "usurp" the independence of the Commission or its judges.
Id. at 8.  In fact, all decisions and orders presently issued by
the Commission and its judges are routinely "given" and "delivered"
to the operator either directly, or to its legal representative.
See 16 FMSHRC at 1144.  This is the established practice of the
Commission, notwithstanding the absence of express statutory authority,
or the existence of a procedural rule requiring such practice.[8]
Thus, one could conclude that the statutory authority for such
practice is implicit.[9]  Moreover, a recognition that such documents
are to be routinely posted would not affect the content of the
document, or in any way limit the Commission's authority under
section 113, 30 U.S.C.  823, to direct "other appropriate relief,"
including an order that a notice be posted.  See T.B. Br. at 8-9 n.14.
It merely would ensure that whatever the judge or Commission decide,
will be posted and made available to the miners.

     Secondly, Thunder Basin argues that adoption of such an
interpretation requiring the posting of the temporary reinstatement
order would not satisfy the two objectives underlying the statutory
posting requirements, which it asserts are to "notify miners . . .
of proceedings . . . in which they have a right to intervene and
participate; and . . . to provide immediate notice . . . of present
mining conditions that may pose a risk of danger or harm through
exposure."  T.B. Br. at 12; see also S. Br. at 8.  In asserting that
the posting of the temporary reinstatement order is "unnecessary and
superfluous" to satisfying the statutory objectives noted above, Thunder
Basin argues that those objectives are secured "where there is a miners'
representative, whose duty it is to provide miners with such notice."
T.B. Br. at 13, 15.

     Given Thunder Basin's unrelenting resistance to the miner
representative rights mandated by the Act, its attempt to draw
support for its position by describing the benefit of having a
miners' representative is an astonishing display of cynicism.  It
also is unpersuasive.  The argument makes no provision for miners
who work in mines where there is no representative.  Obviously, any
"reasonable" statutory construction must apply to all miners.
Furthermore, the posting of a temporary reinstatement order may also
serve to alert miners to an existing safety or health risk.  As we
have observed over the years, the garden variety discharge occurs
after a miner has reported the existence of an unsafe/unhealthy
condition, or has refused to work in such conditions.  Because of
the brief statutory time requirements, temporary reinstatement orders
ordinarily will be issued fairly close in time to the discharge.  Thus,
it is possible that at the time temporary reinstatement is ordered,
the conditions giving rise to the discharge will have continued to exist
and pose a risk to other miners.  Moreover, there can be no question
that the posting of such an order vividly demonstrates the reach of the
law, and reaffirms to the miners the government's commitment to provide
representation and relief to those who may have suffered retaliation or
discrimination because they have engaged in a protected activity.

     Thus, Thunder Basin's arguments fail to demonstrate that the
Secretarial interpretation of section 109(a) is unreasonable, or
inconsistent with Congressional intent.

  The Secretary's reasonable interpretation is entitled to deference

     In declining to accord deference to the Secretary's
interpretation of section 109(a), the judge found that there was
no written agency policy or interpretation regarding the posting of
Commission decisions.  Indeed he concluded that "there is no agency
`interpretation' to which deference must be paid."  16 FMSHRC at 1146.
Thus, he concluded that a "subjective understanding of what the statute
requires, which is not obvious and has never been communicated to the
public, is not an agency interpretation entitled to deference under
Chevron."  Id. at 1146, citing Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984).

     Notwithstanding the record evidence indicating no prior
enforcement of this interpretation, the Secretary contends that in
citing Thunder Basin it was permissibly exercising its delegated
rulemaking powers as sanctioned by the Supreme Court and therefore
its interpretation is entitled to deference.  S. Br. at 9-10, citing
Martin v. OSHRC, 499 U.S. 144, 156-58 (1991) ("As we have indicated,
the Secretary's interpretation is not undeserving of deference merely
because the Secretary advances it for the first time in an administrative
adjudication").  I find that the Secretary is correct in that position,
and I therefore conclude that deference should not be withheld.  Deference
should be accorded to a reasonable Secretarial interpretation, i.e.,
"a permissible construction of the statute," even one the Commission
might not choose.[10]  Chevron, 467 U.S. at 843. "`When the Secretary
and the Commission disagree on the interpretation of ambiguous provisions
of the Mine Act, and both present plausible readings of the legislative
text, [the] court owes deference to the Secretary's interpretation.'"
Secretary of Labor on behalf  of Wamsley v. Mutual Mining, Inc., Nos.
95-1130 & 95-1212, slip op. at 7 (4th Cir. April 3, 1996), quoting
Secretary of Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1433
(D.C. Cir. 1989).  Thus, my colleagues should have determined that the
Secretary's interpretation is reasonable and entitled to deference.

         Thunder Basin did not receive adequate notice of the
                      Secretary's interpretation

     Notwithstanding the deference that I accord to the Secretary's
interpretation of section 109(a), the issue of whether the operator
was accorded adequate notice remains.  "[T]he decision to use a citation
as the initial means for announcing a particular interpretation may bear
on the adequacy of notice, to regulated parties."  Martin, 499 U.S. at 158.
In Gates & Fox Co. v. OSHRC, 790 F.2d 154 (D.C. Cir. 1986), the court,
citing to no less than five other circuits, indicated its agreement that
agency interpretations, to which deference is owed, and for which a penal
sanction is at issue, must still pass constitutional due process muster
in providing "fair warning of the conduct it prohibits or requires."
Id. at 156.

     Given the absence of any rule, regulation, or written policy
articulating the Secretary's interpretation, as well as, the lack
of any evidence that prior enforcement of the asserted "unwritten
policy" ever occurred, and in consideration of the precise wording of
the statutory provision, I conclude that Thunder Basin was not afforded
fair notice of the Secretary's interpretation of section 109(a).

     Accordingly, I would decide this case as the court recently
did in the matter of General Electric Co. v. EPA, 53 F.3d. 1324
(D.C. Cir. 1995).  There the court determined that the agency's
interpretation of its regulations was entitled to deference, even
"where the agency's reading of the statute would not be obvious to
`the most astute reader.'"  Id. at 1327, quoting Rollins Envtl.
Servs. v. EPA, 937 F.2d 649, 652 (D.C. Cir. 1991).  However, because
"the interpretation is so far from a reasonable person's understanding
of the regulations that they could not have fairly informed [the
regulated] of the agency's perspective," the finding of liability
was reversed.  Id. at 1330.

                              _____________________________
                              Marc Lincoln Marks,
                              Commissioner

**FOOTNOTES**

     [1]:  Section 109(a) provides:

          At each coal or other mine there shall be maintained
     an office with a conspicuous sign designating it as the
     office of such mine.  There shall  be  a  bulletin board
     at such office or located at a conspicuous place near an
     entrance of such mine, in such manner that orders, citations,
     notices and decisions required by law or regulation to be
     posted, may be posted  thereon,  and be easily visible to
     all  persons desiring to read them, and be protected against
     damage  by  weather and against unauthorized removal.  A copy
     of any order, citation, notice or decision required by this
     [Act] to be given to an operator shall be delivered to the
     office of the affected mine, and a copy shall be immediately
     posted on the bulletin board of such mine by the operator
     or his agent.

30 U.S.C.  819(a).

[2]:   If  the  statute is ambiguous or silent on a point in
question, a second  inquiry,  a  "Chevron  II"  analysis, is
required to determine whether an agency's interpretation  of
the  statute  is a reasonable one.  Coal Employment Project,
889 F. 2d at 1131.

[3]:  Section 109(b) provides:

          The Secretary shall (1) cause a copy of any order,
     citation, notice, or decision  required  by  this [Act]
     to be given to an operator to be mailed immediately  to
     a representative of the miners in the affected coal or
     other mine, and (2) cause a copy thereof  to  be mailed
     to the public official or agency of the State charged
     with administering State laws, if any, relating to health
     or  safety in such mine.  Such notice, order, citation,
     or decision shall be available for public inspection.

30 U.S.C.  819(b).

Section 109(c) provides:

          In  order  to  insure  prompt compliance with  any
     notice, order, citation, or decision issued under this
     [Act],  the  authorized representative of the Secretary
     may deliver such notice, order, citation, or decision
     to an agent of the operator, and such agent shall
     immediately take appropriate measures to  insure
     compliance with such notice, order, citation, or decision.

30 U.S.C.  819(c).

Section 109(d) provides:

          Each operator of a coal or other mine subject to this
     [Act] shall file with the Secretary the name and address of
     such mine and the name and address of the person who controls
     or  operates  the  mine.  Any  revisions  in  such  names or
     addresses shall be promptly filed with the Secretary.  Each
     operator of a coal or other mine subject to this [Act] shall
     designate a responsible official at such mine as the principal
     officer in  charge of health and safety at such mine, and such
     official shall receive a copy of any notice, order, citation,
     or decision issued under this [Act] affecting such mine.  In
     any  case where the mine is  subject  to the  control of  any
     person not directly  involved in the daily operations of the
     coal or other mine, there shall  be  filed with the Secretary
     the name and address of such  person and the name and address
     of a principal official of such person who shall have overall
     responsibility for  the conduct  of  an  effective health and
     safety program at  any  coal  or other  mine  subject to the
     control of such  person,  and  such official shall  receive a
     copy  of  any  notice, order,  citation,  or decision issued
     affecting  any such mine.   The mere designation of a health
     and safety  official under  this  subsection  shall  not be
     construed  as  making such  official subject to any penalty
     under this [Act]. 

30 U.S.C.  819(d).

     [4]:  Contrary to the Secretary's assertion, decisions under
the  Mine  Act are not limited to those issued by the Commission.
In  certain  instances,   the  Secretary  is  required  to  issue
decisions.  30 U.S.C.  811(c).

     [5]:  We are reminded  of  the  maxim,  "be careful what you
wish  for."  During FY 1995, the Commission's Administrative  Law
Judges issued 4,837 final dispositions.

     [6]:   This  is  not  to  say that an operator will never be
required to post a Commission temporary  reinstatement order.  As
Thunder Basin points out in its brief, the  Secretary can seek to
incorporate the posting of the order as part  of the relief to be
granted under 30 U.S.C.  815(c).  T. B. Br. at 8-9 n.14.

     [7]:    In  light  of  our  conclusion  that  the  statutory
provision is clear, we do not reach the question of  whether  the
Secretary's  interpretation  of  section  109(a)  of  the  Act is
reasonable.

     [8]:  The Commission's procedural rules do, however, contain
specific  service requirements  regarding a judge's issuance  of:
an order on application for temporary reinstatement (Rule 45(e));
a subpoena (Rule 60(a)); and a summary disposition of proceedings
(Rule 66(a)).

     [9]:    Beyond   the   legal   arguments   asserted,  it  is
inconceivable to not draw that implication.  The  Act  is replete
with  narrowly  drawn  time frames for filing actions and appeals
which could not be effected unless the Commission, like any other
adjudicatory body in this  country,  promptly issued and conveyed
its determinations to the affected parties.

     [10]:   "The  court  need  not  conclude   that  the   agency
 construction was the only one it permissibly could  have  adopted
 to  uphold  the construction, or even the reading the court would
 have reached  if  the question initially had arisen in a judicial
 proceeding."  Chevron, 467 U.S. at 843 n.11 (citations omitted).