# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2005 Decided July 22, 2005

No. 04-1126

S ECRETARY OF L

ABOR

, M INE S AFETY AND H EALTH

A DMINISTRATION

, P ETITIONER

v.

S PARTAN M INING C OMPANY AND

F EDERAL M INE S AFETY AND H EALTH R

EVIEW C OMMISSION

, R ESPONDENTS

On Petition for Review of an Order of the

Federal Mine Safety and Health Review Commission

Jerald S. Feing old , Attorney, Mine Safety & Health

Administration, argued the cause for p etitioner. With him on the

briefs was W. Christian Schumann , Counsel.

Jam es S. Crockett, Jr. argued the cause for respondent.

With him on the brief was David J. Hardy

.

Before: E

DWARDS , R

OGERS , and G

ARLAND

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge G ARLAND

.2

G ARLAND

, Circuit Judge : This case concerns dueling

interpretations of Department of Labor regulations that require

coal mine operators to ex amine their mines for hazardous

conditions b e fore they send miners underground. Although in

this c ase the outcome of the duel is not particularly close, it

would no t matter if it were. The standard of review that governs

interpretive dueling before this court compels us to defer to the

Secretary of Labor’s interpretation of her ow n regulations unless

it is plainly erroneous or inconsis tent with the regulations.

Because the Secretary’s interpretation is neither, we grant her

petition to vacate a Federal Mine Safety and Health Review

Commission decision that adopted a conflicting construction.

I

Section 201 of the Federal Mine Safety a nd Health Act of

1977 (the “Mine Act”) directs the Secretary of Labor to issue

“improved mandatory health or safety standards for the

protection of life and p revention of injuries in coal or other

mines. ” 30 U.S.C. § 811(a). Acting through the Mine Safety

and Health Administration (MSHA), see 29 U.S.C. § 557a, the

Secretary has promulgated a wide array of such standards, which

MSHA enforces b y inspecting mines and issuing citations for

violations, see 30 U.S.C. § 814(a). A mine operator can contest

a citation before the Federal Mine Safety and Health Review

Commission (FMSH

RC), an adjudicative agency independent

of the Department o f Labor. S ee id. § 815(d). After a hearing,

FMSHRC can affirm, modify, or vac a te the citation. S ee id.

Under the statutory scheme, howeve r, the Commission is

required to accord deference to “‘the Secretary’s interpreta t ions

of the law and regulations.’” S ecretary of Labor v. Canne lton

Indus., Inc.

, 867 F.2d 1432, 14 35 (D.C. Cir.1989) (quoting S.

R EP

. N O . 95-181, at 49 (1977)); see RAG Cumberland Res. LP

v. FMSHRC , 272 F.3d 590, 595 (D.C. Cir. 2001).3

Cann elton Industries idled its Shadrick Mine on May 3,

2002. C annelto

n Indus., Inc. v. Secretary of Labor , 24

FMSHRC 707, 707 (2002) (“ ALJ Decision ”). Because the

company contemplated reactivating the mine at a later date, it

needed to keep its ele ctric pumps running to prevent the mine

from flooding. The mine’s electrical system, including a

network of trolley wires that ran throughou t the mine, was kept

ener gized. On May 6, 2002, Cannelton began sending

“pumpers”

-- miners who maintain an d repair pumps -- into the

mine to work on the pumps. Id. at 708.

On May 15, 2002 , a MSHA inspector issued Cannelton a

citation for violating 30 C.F.R. § 75.360(a)(1), a mandatory

safety standard that requires certified examiners to con duct a

“preshift examination” before a mine operator may send miners

undergro u nd. In particular, the citation charged that Cannelton

had failed to have examiner s inspect the energized trolley wires

before the pumpers entered the mine. S ee Secretary of Labor v.

Cannelton Indus., Inc.

, 26 FMSHRC 146, 148 (2004)

(“ FMSHRC Decision ” ). The company contested the citation

before a FMSHRC administrative law ju dge (ALJ), who vacated

the citation on the ground that the “pumpers’ exception” to the

preshift examin

ation requirement, 30 C.F.R. § 75.360(a)(2),

rendered such an exa mination unnecessary. S ee ALJ Decision

, 24 FMSHRC at 709-10. On the Secretary’s petition for review,

the Commission upheld the ALJ’s determination. S ee FMSHRC

Decision , 26 FMSHRC at 150-54. The Secretary then petitioned

for review by this court.

In September 200 4, Cannelton’s parent company was the

subject of a bankruptcy order, pursuant to which the parent of

Spartan Mining Company purchased Canne lton’s assets. S ee

Pet’r Br. at 35-38. Spartan now owns the Shadrick mine. S ee

Resp’t Br. at 5. On January 12, 2005, we granted Spartan’s

unopposed motion to substitute itsel f for Cannelton as4

1 We agree with the parties that Cannelton’s inadv e rtent payment

of the $259 fine imposed by the contested citation did not moot this

case. As the Secretary observes, FMSHRC precedent indicates that if

Spartan prevails in t his proceeding, the company will be able to

recover the money paid to the Secretary. See, e.g.

, Secretary of Labor

v. Phelps Dodge Sierrita, Inc. , 24 FMSHRC 661, 662 (2002). respondent. 1

II

It is well-settled that this court must defer to the Secretary’s

interpretation of a MSHA standard as long as that interpretation

is not “plainly erroneous or inconsistent w ith the regulation.”

Akzo Nobel Salt, Inc. v. FMSHRC

, 212 F.3d 1301, 1303 (D.C.

Cir. 2000) (quoting Thomas Jefferson University v. Shalala , 512

U.S. 504, 512 (1994)); see Secretary of Labor v. Excel Mining,

LLC

, 334 F.3d 1, 6 (D.C. Cir. 2003). It is equally well-settled

that we owe the Secretary this deference even if FMSHRC

interprets the standard differently. See id. ; Akzo Nobel Salt

, 212

F.3d at 1303; Energy W. Mining Co. v. FMSHRC , 40 F.3d 457,

462-63 (D.C. Cir. 1994); Cannelton Indus. , 867 F.2d at 1435.

The regulations at issue in t his case are contained in

subsections (a) and (b) of 30 C.F.R. § 75.360. The preshift

examination

requirement is set forth in paragraph (a)(1), which

states:

Except as provided in paragraph (a)(2) of this section

,

a certified person designated by the operator mu s t

make a preshift examination withi n 3 hours preceding

the beginning of any 8-hour interv al during which any

person is scheduled to work or travel underground. No

person other than cert

i fied examiners may enter or

remain in any underground area unless a preshift5

examination has been completed for the established 8-

hour interval.

30 C.F.R. § 75.360(a)(1) (emphasis added). The substance of

the required preshift examination is contained in subsection (b),

which provides in relevant part:

The person conducting the preshift examinatio n shall

examine for hazardous conditions

. . . at the following

locations:

(1) Roadways, travelwa

y s and track haulageways

where persons are scheduled

. . . to work or travel

during the oncoming shift.

. . . . (3) Working sections and areas where mechanized

mining equipment is being installed or removed, if

anyone i s scheduled to work on the section or in the

area during the oncoming shift.

. . . . (7) Areas where trolley wires or t rolley feeder

wires are to be or will remain energized during the

oncoming shift.

Id. § 75.360(b). Finally, the pumpers’ exception -- referenced

by the phrase in par agraph (a)(1) italicized above -- is set forth

in paragraph (a)(2):

Preshift examinations of areas where pumpers are

scheduled to work o r travel shall not be required prior

to the pumper entering the areas if the pumper is a

certified per son and the pumper conducts an

examination for hazardou

s conditions . . . where the

pumper works or travels. The examination of the area

must be completed before the pumper performs any

other work.6

Id. § 75.360(a)(2).

The Secretary interprets these interconnected provisions as

follows. Paragraph (a)(1) requires certified persons to conduct

a preshift examination before anyone e lse may enter a mine.

Subsection (b) d escribes the specific areas of the mine in which

this examination must be conducted. These include certain

areas, such as “roadways” and sections wher e “equipment is

bein g installed,” i d. § 75.360(b)(1), (b)(3), that must be

examined only if persons are schedu led to work or travel there.

They also include other areas, such as those “where trolley wires

or trolley feeder wires

. . . remain energized,” id. § 75.360(b)(7),

that must be examined even if no one is scheduled to work or

travel there. C ompare id. (not cont a ining a “scheduled to work”

caveat), with

, e.g.

, id. § 75.360(b)(1), (3), (4), (5) , (6) (all

containing the caveat). Finally, the introductory clause of

paragraph (a)(1)

-- “[e]xcept as provided in paragraph (a)(2)”

--

directs the reader to the sole exception to this preshift

examination requirement. That exception, which permits

pumpers to conduct their own exa minations, applies only in

“areas where pumpers are scheduled to work or travel.” Id.

It is undisputed that Cannelton’s pumpers properly

conducted all required examination s of the areas where they

worked or traveled, but that other areas went unexamined. In

particular, no one examined areas where trolley wires remained

energized, as subsection (b)(7) requires for preshift

examinations. Spartan offers a series of reasons -- each of

which FMSHRC accepted

-- for reading § 75.360 to include the

trolley wire areas within the pumpers’ exception.

First, Spartan contends that the opening clause of paragraph

(a)(1)

-- “[e]xcept as provided in paragraph (a)(2)”

-- means that

the pumpers’ exception is a complete exemption from th e

preshift examination requirement, an d thus eliminates the7

obligation to examine non-work areas like those where

energized trolley wires are found. The plain language of

paragraphs (a)(1) and (a)(2), however, gives the Secretary the

better of this argument. The opening clause creates an exception

only “ as provided in” paragraph (a)(2), and that paragraph does

not dispense with the preshift examination requirement

altogether. To the contrary, it permits a pumpers’ examination

to substitute fo r a preshift examination only in “areas where

pumpers are scheduled to w ork or travel.” I d. § 75.360(a)(2).

Because the preshift examination requirement otherwise remains

applicable, energized trolley wires must be examined before

pumpers may enter a mine. See id. § 75.360(b)(7).

Second, Spartan notes paragraph (a)(1)’s declaration that

“[n]o person other than certified examiners may enter or remain

in any underground area unless a preshift examination has been

completed.” I

d

. § 75.360(a)(1) (empha sis added). Reading this

as permitting “certified examiners” to enter without a preshift

e xamination, and further noting that the pumpers’ exception

applies only “if the pumper is a certified pe rson,” i d. §

75.360(a)(2), Spartan concludes that no preshift examination is

required before a (certified) pumper begins his or her work.

The Secretary disagrees. In her view, the quoted sentence

-- which c omes immediately after the sentence that imposes the

preshift examina tion requirement -- merely means that a

certified examiner may enter the mi ne before a preshift

examination in ord er to conduct that examination. The quoted

s entence thus serves an important purpose: it avoids the Catch22 that would result if an examiner coul d not enter an area to

conduct a preshift examination until an examiner had conducted

such an examination. Spartan’s reading of the sentence, by

contrast, would render the pumper s’ exception superfluous. If

paragraph (a)(1) wholly exempted pumpers from the preshift

examination requi

rement, there would be no need for the8

2 See also Safety Standards

, 61 Fed. Reg. at 9792 (“[T]he final

rule provides an option for pumpers t o perform examinations for

themselves if they are certified.”); id. (“The pumper may only perform

an examination in lieu of a preshift for himself or herself.”). pumpers’ exception of paragraph (a)(2). The Secretary’s

contrary reading is thus perfectly reasonable.

Next, Spartan turns for support to the Federal Regis ter

preamb le that accompanied the 1996 revision of § 75.360.

“While this issue is not express ly resolved by the preamble or

any other regulatory comments to the rule,” Spartan contends,

“the preamble contains nu merous references that the pumpers’

examination ma

y be performed ‘in lieu of,’ rather than in

addition to, a pre-shift examina t ion.” Resp’t Br. at 14.

Spartan’s introductory disclaimer signals the uphill climb it

faces in relying on

the preamble, and the course indeed proves

too stee p. The preamble does state, as Spartan notes, that

“ either a preshift examination must be made in accordanc e with

paragraph (a)(1) before a pumper enters an area, o r certified

pumpers must conduct an examination under paragraph (a)(2).”

Safety Standards for Underground Co a l Mine Ventilation

, 61

Fed. Reg . 9765, 9792 (Mar. 11, 1996) (“ S afety Standards ”)

(emphases added). But the Secretary reasonably construes this

alternative as applying only to the area the “pumper enters.”

Another sentence in the preamble confirms this construction:

“Paragraph (a)(2) of the final rule provides that preshift

examinations of areas where pumpers are scheduled to work or

travel are not required

. . . .” I d. (emphasis added). Similarly,

although Spartan stresses the preamble ’s statement that “the

pumper is conducting an exam ination in a limited area only for

himself or herself,” id

., 2 the Secretary reasonably explains that

this language mere ly means that the pumpers’ examination is a

substitute for the preshift examination th at would take place “in

the limited area” in which the pumper “himself or herself” is9

3 Spartan also notes the preamble’s statement that “areas where

persons are not scheduled to work or travel are not required to be

examined under the final rule.” Safety Standards , 61 Fed. Reg. at

9791 . But as the Secretary points out, this statement was not a

reference to the pumpers’ exception, but rather a response to a specific

comment suggesting that only a limited preshift examination be

required when miners are “to work in the shaft, slope, drif t, or . . .

bottom area.” I

d. There is no indication that the statement was

intended to contradict the text of § 75.360

-- which requires

examination of “[a]reas where trolley wires or trolley feeder wires are

to be or will remain energized,” 30 C.F.R. § 75.360(b)(7), regardles s

of whether anyone is scheduled to work there.

4 The language of subsection 863(d) is similar to that of 30 C.F.R.

§ 75.360 and does not undercut the Secretary’s interpretation of the

latter. S ee 30 U.S.C. § 8 63(d)(1) (“[B]efore any miner in [a] shift

enters the active workings of a coal mine, certified persons designated

by the operator of the mine shall examine such workings and any other

underground area

of the mine designated by the Secretary or his

authorized r epresentative.”); i d. § 863(d)(2) (“No person (other than

certified persons designated under this subsection) shal l enter any

underg round area, except during any shift, unless an examination of

such area as prescribed in this subsection has been made within eight

hours immediately pre ceding his entrance into such area.”). The

language of § 863(m) is similar to that of the preamble and is likewise

reasonably subject to the Secretary’s construction. S ee id. § 863(m) working. It is not a substitute for the broader examination

otherwise required. 3

Spartan also maintains that two subsections of the Mine

Act, 30 U.S.C. § 863(d) and § 863(m), “whe n reviewed

separately and together, clearly indicate that Congress did not

intend to require a pre-shi ft examination of an idle mine outside

the are a where pumpers are working and traveling.” Resp’t Br.

at 16. Although our own review reveals no such negative

intent, 4 exa m

ination of those sections is beside the point.10

(providing that “[p]ersons, such as pumpmen, who are required

regularly to enter [idle and abandoned] areas in the performance of

their duties . . . are authorized to make such examinations for

themselves”). Congress made quite clear that “[t]he provisions of sections 862

through 878 of this title shall be interim mandatory safety

standards applicable to all underground coal mines until

superseded in whole or in part by improved mandatory safety

standards promulgated

by the Secretary.” 30 U.S.C. § 861(a).

Whatever the import of those int erim provisions, they have now

been superseded by the Secretary’s safety standards , including

§ 75.360.

Switching its attention from reg ulatory interpretation to

p olicy, Spartan further contends that the Secretary’s

“interpretation is not entitled to d eference because it diminishes,

rather than promotes, safety.” Resp’t Br. at 10. That is so,

Spartan insists, because sending pre -shift examiners “to conduct

p re-shift examinations for areas far remote from those in which

the pump ers will work and travel . . . will unnecessarily expose

the preshift examiners to mine hazards, without measurably

improving the health and safety of the pumpers.” I

d. at 20. The

company is c ertainly correct that sending preshift examiners as

well as pumpers into a mine exposes the examiners to hazards

they would not experience if the pum pers went in alone. But the

Secretary believes that the preshift examiners’ risk is minimized

by the fact that they, unlike the pumpers, are fo cused on a single

ta s k: detecting and correcting hazards. And on the other side of

the ledger, the Secretary believes that sending in the examiners

protects pumpers from serious hazards

-- particularly the risk of

fire triggered by energized trolley wires

-- that can ori ginate in

areas other than those in which the pumpers are working and

that are therefor

e beyond the scope of the pumpers’ own

e xamination. The Secretary’s balancing of these safety risks and11

benefits is a reasonable policy judgment to wh ich this court must

defer. See Excel Mining , 334 F.3d at 11; Energy W. Mining

, 40

F.3d at 463-64.

Finall y, Spartan contends that, “even if the Secretary’s

interpretation w as entitled to deference, the standard cannot be

enforced in this instance because Cannelton did not have fair

notice of the Secretary’s interpretation” as required by the Due

Process Clause . Resp’t Br. at 10. Spartan’s due process

argument falls short of the mark. This is not a case in which the

Secretary’s “interpretation is so far from a reasonable person’s

understandin g of the regulations that they could not have

informed [Cannelton] of the agency’s perspective.” G eneral

Elec. Co. v. EPA , 53 F.3d 1324, 1330 (D.C. Cir. 1995). To the

c ontrary, the regulation is “sufficiently clear to warn a party

about what is expected of it.” I d. at 1328; see Trinity Broad. of

Fla., Inc. v. FCC , 211 F.3d 618, 628 (D.C. Cir. 2000).

III

Because the Secretary of Labor’s interpretation of 30 C.F.R.

§ 75.360 is reasonable, FMSHRC’s contra r y interpretation

cannot stand. We therefore vacate the decision below and

remand the case for

further proceedings consistent with this

opinion. The petition for review is

Gra nted.