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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2004 Decided February 24, 2004

No. 03-1070

SECRETARY OF LABOR,

PETITIONER

v.

OHIO VALLEY COAL COMPANY AND

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,

RESPONDENTS

On Petition for Review of an Order of the

Federal Mine Safety and Health Review Commission

Robin A. Rosenbluth, Attorney, U.S. Department of Labor,

argued the cause for petitioner. With her on the briefs was

W. Christian Schumann, Counsel.

Melanie J. Kilpatrick argued the cause for respondent.

With her on the brief was Marco M. Rajkovich, Jr.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
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Before: EDWARDS, SENTELLE, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: This case arises out of a fatal

accident in a mine owned and operated by the Ohio Valley

Coal Company (‘‘Ohio Valley’’). Thomas Ciszewski, a mine

belt foreman for Ohio Valley, had his arm severed by moving

machinery while he was assessing necessary maintenance and

repairs on the equipment. The injury resulted in his death

shortly after the accident. The Department of Labor’s Mine

Safety and Health Administration (‘‘MSHA’’) issued a citation

against Ohio Valley for violating a regulation providing that

‘‘repairs or maintenance shall not be performed on machinery

until the power is off and the machinery is blocked against

motion.’’ 30 C.F.R. § 75.1725(c) (2003). The Federal Mine

Safety and Health Review Commission (‘‘FMSHRC’’ or

‘‘Commission’’) vacated the citation, holding that Mr. Ciszewski did not violate the regulation because he was not performing repair or maintenance when he was injured. Sec’y of

Labor v. Ohio Valley Coal Co., 24 F.M.S.H.R.C. 1072, 1077

(2002). The Secretary of Labor (‘‘Secretary’’) petitions for

review of the Commission’s decision, claiming that the disputed safety standard clearly applies when a miner is at the

location of running machinery to assess what repair or maintenance is necessary to correct an apparent problem. We

defer to the Secretary’s reasonable interpretation of the

regulation and grant the petition for review.

I. BACKGROUND

A. Statutory Background

The Mine Safety and Health Act (‘‘Mine Act’’ or ‘‘Act’’), 30

U.S.C. § 801-962 (2000), authorizes the Secretary of Labor to

promulgate mandatory health and safety standards for the

nation’s mines. See 30 U.S.C. § 811. The Mine Safety and

Health Administration acts on behalf of the Secretary to

assure compliance with these health and safety standards by

issuing citations for violations. See 30 U.S.C. § 814(a).

MSHA also investigates mine accidents to determine the
3

cause and the means of preventing recurrence. See 30 U.S.C.

§ 813(d). The Federal Mine Safety and Health Review Commission adjudicates disputes arising under the Act, see 30

U.S.C. § 823, including challenges by mine operators to citations issued by the Secretary of Labor. See RAG Cumberland Res. LP v. FMSHRC, 272 F.3d 590, 595 (D.C. Cir. 2001).

At issue in this case is the interpretation of a safety

regulation addressing repairs and maintenance on moving

machinery. The regulation states that

[r]epairs or maintenance shall not be performed on

machinery until the power is off and the machinery

is blocked against motion, except where machinery

motion is necessary to make adjustments.

30 C.F.R. § 75.1725(c).

B. Factual Background

The facts in this case are largely undisputed and set forth

in full in the Commission’s decision. See Ohio Valley Coal

Co., 24 F.M.S.H.R.C. at 1072-74. We will therefore only

briefly summarize the facts before turning to the issues

presented by the petition for review. The Ohio Valley Coal

Company owns and operates Powhatan No. 6 Mine, an underground coal mine in Belmont County, Ohio. Thomas M.

Ciszewski, a belt foreman employed by Ohio Valley, was

responsible for the operation of the belts at the Powhatan No.

6 Mine. On April 19, 2001, at around 5:15 p.m., Ohio Valley’s

pre-shift examiners heard a flapping noise near the stationary

take-up roller at break 62 while examining the Second Main

North Belt. They reported that the guarding around the belt

take-up unit was in place; but they did not report the noise.

Ohio Valley Coal Co., 24 F.M.S.H.R.C. at 1072-73; see also

Joint Stipulation of Facts (‘‘Joint Stip.’’) ¶ ¶ c, k-n, u-v, mm,

Joint Appendix (‘‘J.A.’’) 198–200.

At around 8:30 p.m. on April 19, two belt repairmen for

Ohio Valley performed some repairs on the First Main North

belt wings, near break 61. After finishing the repairs, they

heard a voice calling for help nearby. They then saw a man
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stagger and fall. They ran to the man and found Thomas

Ciszewski on the ground, missing his left arm, and suffering

facial cuts. One repairman went to the accident site and

found the arm lying outside the guarding in the walkway on

the return side of the Second Main North belt conveyor. He

brought the arm back to where Ciszewski had fallen. At 9:00

p.m., Ciszewski was pronounced dead. Ohio Valley Coal Co.,

24 F.M.S.H.R.C. at 1073; see also Joint Stip. ¶ ¶ o, t, aa, cc,

J.A. 199–201.

MSHA was notified of the accident at 9:20 p.m., and an

initial response team arrived at the mine at 10:15 p.m. The

response team then investigated the accident, taking photographs and measurements, and making drawings. The investigation was continued the following day. The MSHA

investigators ultimately determined that a grease hose was

inadvertently wrapped around the shaft of the stationary

take-up roller on the track side of the belt, causing the

flapping noise that had been heard by the pre-shift examiners. They reported that the guard panels that had been in

place during the pre-shift examination had been removed.

On the basis of their investigation, the MSHA team concluded that, while assessing the problem, Ciszewski’s left

arm had contacted and gotten caught in the pinch point

between the moving belt and the stationary roller of the

belt take-up unit. Ohio Valley Coal Co., 24 F.M.S.H.R.C.

at 1074; see also United States Dep’t of Labor, Mine Safety and Health Administration, Report of Investigation (Aug.

9, 2001) at 6, J.A. 228.

MSHA issued two citations to Ohio Valley for violations of

the Secretary of Labor’s mine health and safety standards

and sought a penalty of $50,000. Ohio Valley conceded the

first citation, for removing the guarding on the belt drive, in

violation of 30 C.F.R. § 75.1722(a). See Ohio Valley Coal Co.,

24 F.M.S.H.R.C. at 1075. However, the company challenged

the second citation, issued pursuant to 30 C.F.R. § 75.1725(c),

charging that Mr. Ciszewski had attempted ‘‘to assess or

repair maintenance (noise) problem on the return walkway

side of the belt take-up stationary roller’’ while the belt and

take-up unit were still in operation and not blocked against
5

motion. See United States Dep’t of Labor, Mine Safety and

Health Administration, Citation/Order 7089484 (May 31, 2002)

at 2, J.A. 212.

The Commission subsequently vacated the § 75.1725(c) citation, holding that the regulation did not apply to Mr.

Ciszewski’s situation. The FMSHRC found, and the Secretary does not dispute, that Ciszewski was ‘‘assessing the

situation to determine what repairs were needed.’’ Ohio

Valley Coal Co., 24 F.M.S.H.R.C. at 1077. Based on this

finding, the FMSHRC concluded that the ‘‘plain and unambiguous’’ language of the regulation, prohibiting the performance of repairs or maintenance while the power was on, did

not extend to ‘‘assessing what repair or maintenance is needed.’’ Id. The Secretary of Labor now petitions this court for

review of the FMSHRC’s decision vacating the citation.

II. ANALYSIS

A. Standard of Review

‘‘The legislative history of the Mine Act indicates that ‘the

Secretary’s interpretations of the law and regulations shall be

given weight by both the Commission and the courts.’ ’’ Sec’y

of Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1435 (D.C.

Cir. 1989) (quoting S. REP. NO. 95-181 (1977)). When, as here,

the Secretary of Labor and the Commission offer conflicting

interpretations of a regulation promulgated by the Secretary

under the Mine Act, this court has repeatedly held that the

Secretary’s position is entitled to the deference pursuant to

the standards enunciated in Chevron U.S.A. Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1983). See, e.g.,

Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 5-6 (D.C.

Cir. 2003); RAG Cumberland Res. LP, 272 F.3d at 596; Akzo

Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1303 (D.C. Cir.

2000); Sec’y of Labor v. FMSHRC, 111 F.3d 913, 916 (D.C.

Cir. 1997); Energy West Mining Co. v. FMSHRC, 40 F.3d

457, 462 (D.C. Cir. 1994); Cannelton Indus., 867 F.2d at 1435.

Therefore, the standard of review in this case is well established and clear: Under the first step of Chevron, this court

‘‘ ‘must give effect to the unambiguously expressed intent of
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Congress.’ ’’ Cannelton Indus., 867 F.2d at 1435 (quoting

Chevron, 467 U.S. at 843). But when the statute is silent or

ambiguous with regard to the specific issue, this court must

determine whether the Secretary’s interpretation is ‘‘ ‘a permissible construction of the statute.’ ’’ Id.

The Secretary is entitled to no less deference with respect

to interpretations of her own regulations. See id. Thus, we

have held that, ‘‘in the statutory scheme of the Mine Act, ‘the

Secretary’s litigating position before [the Commission] is as

much an exercise of delegated lawmaking powers as is the

Secretary’s promulgation of a TTT health and safety standard,’

and is therefore deserving of deference.’’ Excel Mining,

LLP, 334 F.3d at 6 (quoting RAG Cumberland LP, 272 F.3d

at 596 n.9). There is no claim here that the Secretary’s

position is at odds with the Mine Act. Rather, the only issue

in this case is whether the Secretary’s interpretation of her

own regulation rests on a permissible construction of the

language of the regulation. And, under well-recognized precedent, we can reject the Secretary’s interpretation only if ‘‘it

is plainly erroneous or inconsistent with the regulation.’’ See

Akzo Nobel Salt, Inc., 212 F.3d at 1303.

B. The Secretary’s Interpretation

The Secretary seeks to overturn the Commission’s judgment, arguing that the safety standard at 30 C.F.R.

§ 75.1725(c) clearly applies when a miner is at the location of

running machinery to assess what repair or maintenance is

necessary to correct an apparent problem. Ohio Valley argues, relying on the Commission’s decision, that the plain

meaning of the regulation precludes application to such circumstances. We disagree. We uphold the Secretary’s interpretation because it is both consistent with the language of

the regulation and reasonable.

In holding that the regulation’s plain meaning excluded Mr.

Ciszewski’s situation, the Administrative Law Judge (‘‘ALJ’’)

relied upon definitions of ‘‘repair’’ and ‘‘maintenance’’ in

Walker Stone Co., Inc., 19 F.M.S.H.R.C. 48, 51 (1997), which

interpreted those terms in a similarly worded regulation.
7

The ALJ understood ‘‘repair’’ to mean ‘‘ ‘to restore by replacing a part or putting together what is torn or broken: fix,

mend TTT to restore to a sound or healthy state: renew,

revivify.’ ’’ Ohio Valley Coal Co., 24 F.M.S.H.R.C. at 1077

(quoting Walker Stone, 19 F.M.S.H.R.C. at 51). He understood ‘‘maintenance’’ to mean ‘‘ ‘the labor of keeping something (as buildings or equipment) in a state of repair or

efficiency: care, upkeep TTT’ ’’ Id. Based on these definitions, the ALJ concluded: ‘‘Plainly, [the regulation] connotes

action and deals with the physical acts of fixing, mending, or

keeping in a state of repair. It follows that it does not

include assessing what repair or maintenance is needed.’’ Id.

at 1077. And, finally, the ALJ relied on a dictionary definition of ‘‘perform’’ as ‘‘to carry out or bring about: accomplish,

executeTTTT’’ Id. (quoting WEBSTER’S NEW INTERNATIONAL

DICTIONARY 1678 (3d ed. 1993)). Ohio Valley simply adopts

the ALJ’s definitions of ‘‘repair,’’ ‘‘maintenance,’’ and ‘‘perform,’’ and argues that assessing what repairs are needed is

outside the scope of these definitions. See Respondent’s Br.

at 8-9.

The Secretary does not dispute these definitions. See

Petitioner’s Br. at 15-16. She argues that these definitions

encompass examining machinery to see what specific acts of

repair or maintenance may be needed on the machinery,

‘‘when, as here, there is a specific indication that there may

be something wrong with the machinery (here the machinery

was making an unusual noise).’’ Id. at 16. The Secretary

argues that an assessment made under these circumstances

constitutes ‘‘the labor of keeping [the machinery] in a state of

repair,’’ and is therefore consistent with the Commission’s

definition of ‘‘maintenance.’’ Id. We agree.

In this situation, Ciszewski’s assessment constituted ‘‘maintenance,’’ because he was assessing the machinery as part of

‘‘maintenance.’’ There is no doubt that Ciszewski examined

the running machinery with an aim to correct an apparent

mechanical problem. And, in this instance, the assessment

took place in a location where a worker’s safety might be

threatened by running machinery.
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Furthermore, the plain meaning of the word ‘‘perform’’

does not exclude the assessment at issue. Maintenance repairs could not be completed without an assessment. In

examining the machinery at close range, Mr. Ciszewski was

engaging in a physical activity directed at ‘‘carry[ing] out,’’

‘‘accomplish[ing],’’ or ‘‘bring[ing] about’’ the keeping of the

machinery in good repair, consistent with the definition of

‘‘perform’’ relied upon by Ohio Valley and the Commission.

See Respondent’s Br. at 8-9; Ohio Valley Coal Co., 24

F.M.S.H.R.C. at 1077. Therefore, the regulation’s language

does not unambiguously exclude Mr. Ciszewski’s actions.

In addition to being consistent with the plain language of

the regulation, the Secretary’s interpretation of § 75.1725(c)

is eminently reasonable. The Secretary does not claim that

any idle ‘‘assessment’’ by workers of the state of running

machinery is covered by § 75.1725(c); nor does the Secretary

claim that routine mine ‘‘inspections’’ that might subsequently

lead to maintenance repairs are within the ambit of

§ 75.1725(c). Accordingly, we uphold the Secretary’s ‘‘assessment’’ interpretation only insofar as it applies to factual

situations like the one raised in this case.

III. CONCLUSION

For the foregoing reasons, we grant the petition for review.