United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2011 Decided November 4, 2011

No. 10-1392

WOLF RUN MINING COMPANY,

PETITIONER

v.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

AND SECRETARY OF LABOR,

RESPONDENTS

On Petition for Review of a Decision of 

the Federal Mine Safety and Health Review Commission

Ralph Henry Moore argued the cause for the petitioner. 

Samuel Charles Lord, Attorney, United States 

Department of Labor, argued the cause for the respondent. W. 

Christian Schumann and Jerald S. Feingold, Attorneys, 

United States Department of Labor, were with him on brief. 

John T. Sullivan, Attorney, entered an appearance.

Before: HENDERSON, TATEL and GRIFFITH, Circuit 

Judges.
2

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner 

Wolf Run Mining Company (Wolf Run) seeks review of a 

decision of the Federal Mine Safety and Health Review 

Commission (Commission), an agency within the United 

States Department of Labor (Labor). Wolf Run Mining Co., 

32 FMSHRC 1228 (2010). The issue on appeal is whether a

Mine Safety and Health Administration (MSHA) inspector is 

authorized to designate the violation of a safeguard notice 

issued pursuant to section 314(b) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (Mine Act),

as “significant and substantial” under section 104(d)(1) of the

Mine Act, which limits the “significant and substantial” 

designation to a violation of a “mandatory health or safety 

standard.” 30 U.S.C. § 814(d). For the reasons set forth 

below, we agree with the Commission majority that the

violation of a safeguard notice issued pursuant to section 

314(b) amounts to a violation of section 314(b) and is 

therefore a violation of a mandatory safety standard which 

can be designated “significant and substantial.” Accordingly,

we deny Wolf Run’s petition.

I. Background

A. Statutory

Section 104(d)(1) of the Mine Act authorizes the 

Secretary of Labor (Secretary), through her authorized

representative,1

 1 The Secretary’s authorized representative is the MSHA inspector. 

See 29 U.S.C. § 557a; 30 U.S.C. § 954.

to designate an operator’s violation of a

mandatory health or safety standard as “significant and 

substantial” “if . . . such violation is of such a nature as could 

significantly and substantially contribute to the cause and 
3

effect of a coal or other mine safety or health hazard.” 30 

U.S.C. § 814(d)(1). “Designation of a violation as 

‘significant and substantial’ under section 104(d)(1) can have 

significant consequences to a mine operator.” Cyprus 

Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 43 & n.1 (D.C. 

Cir. 1999). For instance, the minimum penalty for a citation 

involving a “significant and substantial” violation issued 

under section 104(d)(1) is $2,000 whereas a citation without 

the “significant and substantial” designation has no minimum 

penalty. Compare 30 U.S.C. § 820(a)(3)(A) with id. 

§ 820(b)(1). “Significant and substantial” violations can also 

lead to a withdrawal order. See infra note 6.

Section 3(l) of the Mine Act defines a “mandatory health 

or safety standard” as “the interim mandatory health or safety 

standards established by [Titles] II and III of this [Act], and 

the standards promulgated pursuant to [Title] I of this [Act].” 

30 U.S.C. § 802(l). Under Title I of the Mine Act, the 

Secretary may, through notice and comment rulemaking, 

“develop, promulgate, and revise as may be appropriate,

improved mandatory health or safety standards for the 

protection of life and prevention of injuries in coal or other 

mines.” Id. § 811(a). Title II of the Mine Act provides for 

interim mandatory health standards “applicable to all 

underground coal mines” that are to “be enforced in the same 

manner and to the same extent as any mandatory health 

standard promulgated under the provisions of [Title I of the 

Act].” Id. § 841(a). Title III of the Mine Act provides similar 

authority for interim mandatory safety standards “applicable 

to all underground coal mines” and “enforced in the same 

manner and to the same extent as any mandatory safety

standard promulgated under [Title I of the Act].” Id. § 861(a). 

Included in Title III is section 314(b) which provides that

“[o]ther safeguards adequate, in the judgment of an 

authorized representative of the Secretary, to minimize 
4

hazards with respect to transportation of men and materials 

shall be provided.” 30 U.S.C. § 874(b) (emphases added); see 

also 30 C.F.R. § 75.1403 (repeating verbatim section 314(b)). 

The Secretary has chosen to implement section 314(b) by 

authorizing a MSHA inspector to issue a safeguard notice on 

a mine-by-mine basis and has established “the criteria by 

which [the inspector] will be guided in requiring” such 

safeguard. Id. § 75.1403-1(a).

2

 2 Section 75.1403-1 provides in part:

To require a safeguard 

pursuant to section 314(b) and 30 C.F.R. § 75.1403, the

MSHA inspector issues a written safeguard notice to an

operator specifying the safeguard the operator must provide

and the operator is then given a certain amount of time to 

comply. “If the safeguard is not provided within the time 

fixed and if it is not maintained thereafter,” the inspector 

issues a citation to the operator pursuant to section 104 of the 

Mine Act. Id. § 75.1403-1(b); see 30 U.S.C. § 814 (setting 

forth citation issuance procedure). 

(a) Sections 75.1403–2 through 75.1403–11 set 

out the criteria by which an authorized 

representative of the Secretary will be guided in 

requiring other safeguards on a mine-by-mine basis 

under § 75.1403. Other safeguards may be 

required.

(b) The authorized representative of the Secretary 

shall in writing advise the operator of a specific 

safeguard which is required pursuant to § 75.1403

and shall fix a time in which the operator shall 

provide and thereafter maintain such safeguard. If 

the safeguard is not provided within the time fixed 

and if it is not maintained thereafter, a notice shall 

be issued to the operator pursuant to section 104 of 

the Act.

30 C.F.R. § 75.1403-1(a)−(b).
5

B. Factual

Wolf Run operates the Sentinel underground coal mine in 

Barbour County, West Virginia. On June 27, 2000, a MSHA 

inspector issued safeguard notice number 7095089 with 

respect to the Sentinel mine. The notice required that all 

moving conveyor belts at the Sentinel Mine be provided with

“suitable crossing facilities where persons are required to 

cross over or under [them].”3 The safeguard notice cited both

section 314(b) and 30 C.F.R § 75.1403-5(j)4

On January 23, 2008, a MSHA inspector issued citation 

number 6606199 to Wolf Run for failing to provide “a 

suitable crossing facility” at the Sentinel mine in violation of 

30 C.F.R. § 1403-5(j) and the safeguard notice issued on June 

27, 2000. The inspector designated the violation “significant 

and substantial.”

as its authority.

Wolf Run contested the citation and the case was 

assigned to an administrative law judge (ALJ).5

 3 The notice recited that the lack of a suitable crossing facility at 

conveyor belt #1 in Unit #2 exposed miners to the risk of being 

struck by material falling from the conveyor belt as well as the risk 

of contacting the conveyor belt when crawling under or climbing 

over it. Wolf Run was required to provide a crossing facility at all 

conveyor belts later on the same day the notice was issued. 

 Before the 

4 Section 1403-5(j) provides that “[p]ersons should not cross 

moving belt conveyors, except where suitable crossing facilities are 

provided.” 30 C.F.R. § 1403-5(j).

5 After the Secretary notifies an operator of the proposed civil 

penalty, the operator has thirty days to contest the citation and/or 

the proposed penalty. 30 U.S.C. § 815(a). The Secretary then 

informs the Commission and the Commission provides the operator 

an opportunity for a hearing before an ALJ. Id. § 815(d); 29 C.F.R. 

§ 2700.50. Within thirty days of the ALJ’s decision, the operator 
6

ALJ, Wolf Run moved for a partial summary decision,

arguing that a violation of a safeguard notice cannot be 

designated “significant and substantial” under section 

104(d)(1) of the Mine Act because it does not constitute a 

violation of a mandatory health or safety standard. The 

Secretary opposed Wolf Run’s motion. On December 18, 

2008, the ALJ denied Wolf Run’s motion. Wolf Run then 

sought review of the ALJ’s decision before the Commission. 

It stipulated that it had violated 30 C.F.R. § 1403-5(j), that the 

gravity level was “reasonably likely” to cause “lost work days 

or restricted duty” injury for at least one miner, that its

negligence level was “moderate” and that the Secretary’s 

proposed civil penalty of $1,304 was appropriate6 pursuant to 

the criteria listed in the Mine Act. 32 FMSHRC at 1230; see

30 U.S.C. § 815(b)(1)(B).7

On October 21, 2010, the Commission affirmed the 

ALJ’s decision. The Commission majority concluded that the 

Congress “directly address[ed] the question of whether a 

violation of section 314(b) constitutes a violation of a 

mandatory safety standard” by placing “section 314(b) []

 

may seek the Commission’s discretionary review thereof. 29 

C.F.R. § 2700.70(a). 

6 Although Wolf Run does not contest the proposed penalty, it can 

suffer additional adverse consequences from the “significant and 

substantial” designation. 30 U.S.C. § 814(d), (e). As noted, 

successive “significant and substantial” violations can lead to a 

withdrawal order. Id. § 814(e)(1).

7 The criteria include “the operator’s history of previous violations, 

the appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on 

the operator’s ability to continue in business, the gravity of the 

violation, and the demonstrated good faith of the operator charged 

in attempting to achieve rapid compliance after notification of a 

violation.” 30 U.S.C. § 815(b)(1)(B).
7

within the section 3(l) definition of a mandatory safety 

standard.” 32 FMSHRC at 1256. Accordingly, the 

Commission continued, “[b]ecause a proven violation of a 

safeguard notice is necessarily a violation of section 314(b), it 

follows that the violation of a safeguard notice is a violation 

of a mandatory safety standard and can constitute a 

[significant and substantial] violation.” Id. The dissenting 

commissioner concluded inter alia that a MSHA inspector 

cannot designate a violation of a safeguard notice issued 

pursuant to section 314(b) “significant and substantial” 

because neither 30 C.F.R. § 75.1403-5(j) nor the safeguard 

notice itself falls within the statutory definition of a 

mandatory safety standard.

Wolf Run timely filed a petition for review of the 

Commission’s decision. The court has jurisdiction pursuant 

to section 106(a)(1) of the Mine Act. 30 U.S.C. § 816(a).

II. Analysis

Wolf Run challenges the Commission’s interpretation of

section 314(b) of the Mine Act as authorizing the “significant 

and substantial” designation to attach to the violation of a 

safeguard notice issued pursuant thereto. “We review the 

Commission’s legal conclusions de novo.” Sec’y of Labor v.

Keystone Coal Mining Corp., 151 F.3d 1096, 1099 (D.C. Cir. 

1998). In matters of statutory interpretation, the court “ ‘must 

give effect to the unambiguously expressed intent of 

Congress.’ ” Sec’y of Labor ex rel. Bushnell v. Cannelton 

Indus., Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989) (quoting 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837, 843 (1984)). To determine whether the meaning of 

a statutory provision is plain, the court’s analysis begins with 

“the most traditional tool of statutory construction, [reading] 

the text itself.” City of Tacoma v. FERC, 331 F.3d 106, 114 

(D.C. Cir. 2003) (internal quotation marks and citation 

omitted) (brackets in Tacoma). In deciding whether the text 
8

resolves the meaning of a statutory provision, the court 

considers “the particular statutory language at issue, as well as 

the language and design of the statute as a whole.” Id. 

(quoting Halverson v. Slater, 129 F.3d 180, 184 (D.C. Cir. 

1997)). If “the statute is silent or ambiguous with respect to

the specific issue,” the court defers to the Secretary’s 

interpretation provided the interpretation is “ ‘a permissible 

construction of the statute.’ ” Cannelton Indus., 867 F.2d at 

1435 (quoting Chevron, 467 U.S. at 843). 

As we have previously held, the Mine Act clearly 

provides that the “significant and substantial” designation is 

limited to a violation of a “mandatory health or safety 

standard.” 30 U.S.C. § 814(d)(1); see Cyprus Emerald, 195 

F.3d at 44 (“[The Mine Act] unambiguously authorizes a 

‘significant and substantial’ finding for violation only of a 

mandatory health or safety standard.”). Whether a safeguard 

notice issued pursuant to section 314(b) constitutes a 

mandatory health or safety standard so that its violation can 

support a “significant and substantial” finding is the issue 

before us. 

A. Section 314(b) Is “Interim Mandatory Safety Standard”

The text of the Mine Act unambiguously establishes that

section 314(b) constitutes an interim mandatory safety 

standard. Section 3(l) defines a “mandatory health or safety 

standard” as “the interim mandatory health or safety standards 

established by [Titles] II and III of this [Act], and the 

standards promulgated pursuant to [Title] I of this [Act].” 30 

U.S.C. § 802(l). While section 314(b) is not a “standard[] 

promulgated pursuant to [Title] I of [the Mine] Act,” it is 

plainly an interim mandatory safety standard “established by 

[Title] III.” 

That section 314(b) constitutes an interim mandatory 

safety standard is manifested by the text of section 301(a): 
9

The provisions of sections [302] through [318] 

of [the Act] shall be interim mandatory safety 

standards applicable to all underground coal 

mines until superseded in whole or in part by 

improved mandatory safety standards . . . and 

shall be enforced in the same manner and to 

the same extent as any mandatory safety 

standard promulgated under [section 101] of 

this [Act]. 

30 U.S.C. § 861(a). As the Secretary has not issued improved 

mandatory safety standards for transportation hazards in 

underground coal mines, section 314(b) remains an “interim 

mandatory safety standard . . . [that] shall be enforced in the 

same manner and to the same extent as any mandatory safety 

standard.” Id. And while section 314(b) itself does not set 

forth specific safeguards, neither section 301(a) nor section

3(l) expressly requires such specificity. 30 U.S.C. §§ 802(l), 

861(a). 

Enforcing section 314(b) as an interim mandatory safety 

standard is also consistent with other mine-specific safety 

provisions of the Mine Act that are enforceable as mandatory 

safety standards if they are required by, but not listed in, Title 

III. United Mine Workers of Am., Int’l Union v. Dole, 870 

F.2d 662, 667−70, 672 (D.C. Cir. 1989) (section 302(a) of 

Mine Act covering mine-specific roof control plan provisions 

required by, but not listed in, section 302(a) is enforceable as

an interim mandatory safety standard). Like the statutory 

provision at issue in United Mine Workers, section 314(b) 

does not list the specific safeguards that operators must 

provide. Nevertheless, treating section 314(b) as an interim 

mandatory safety standard, the court concluded, ensures that 

the specific safeguards required under section 314(b) “are 

enforceable as if they were mandatory standards.” Id. at 667 

n.7 (quoting S. Rep. No. 95-181, at 22 (1977), reprinted in
10

1977 U.S.C.C.A.N. 3401, 3425)); see also Zeigler Coal Co. v. 

Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976) (interpreting 

language in 1969 Federal Coal Mine Safety Act identical to 

sections 3(l) and 303(o) of Mine Act to mean mine-specific 

plan provisions required by, but not listed in, Title III were 

enforceable as “mandatory standard[s]”) (alteration added). 

Wolf Run relies on our Cyprus Emerald decision to argue 

that a violation of a safeguard notice issued pursuant to 

section 314(b) cannot be designated “significant and 

substantial.” Neither our decision nor the Commission’s 

decision in Cyprus Emerald, however, answers the question 

sub judice. Cyprus Emerald dealt with the violation of a 

regulation that was promulgated under section 508 of the 

Mine Act and therefore did not come within section 3(l)’s 

definition of a mandatory health or safety standard because it 

was neither promulgated pursuant to Title I nor established by 

Title II or Title III of the Mine Act. Cyprus Emerald, 195 

F.3d at 43-45; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 

799−800 & n.10 (1998). In contrast, this case does involve

the violation of a mandatory safety standard because Wolf 

Run, in failing to provide the required safeguard, violated 

section 314(b) which is an interim mandatory safety standard 

pursuant to sections 301(a) and 3(l) of the Mine Act. Section 

314(b) authorizes the Secretary “to create what are, in effect, 

mandatory safety standards on a mine-by-mine basis.” 

S. Ohio Coal Co. (SOCCO I), 7 FMSHRC 509, 512 (1985)).

Wolf Run’s concerns regarding section 314(b)’s lack of 

notice and/or pre-enforcement review are overstated because 

section 314(b) itself—as well as the safeguard notice 

procedures—give an operator ample notice of what is 

required of it. The safeguard notice describes the safeguard

the operator must provide and specifies the time the operator 

is given to do so. 30 C.F.R. § 75.1403-1(b); see also 

Bethenergy Mines, Inc., 14 FMSHRC 17, 24 (1992) (operator 
11

is not bound by criteria guiding issuance of safeguard notice

pursuant to section 314(b) “unless, and until[] that operator is 

given notice, in a written safeguard from an authorized 

representative of the Secretary, that one or more of the criteria 

are applicable to its mine”). Additionally, in order to 

minimize the risk of arbitrary enforcement of section 314(b), 

the Commission has through adjudication interpreted the 

criteria so as to ensure that an operator has adequate notice of 

what safeguard is required. S. Ohio Coal Co. (SOCCO II), 14 

FMSHRC 1, 12 (1992); SOCCO I, 7 FMSHRC at 512.

8

Moreover, the Congress chose to allow the Secretary to 

regulate transportation hazards in underground coal mines on 

a mine-by-mine basis; it did not require that such regulation 

be subject to formal pre-enforcement review or notice-andcomment. Compare 30 U.S.C. § 811(a), (d) (providing for 

notice-and-comment rulemaking and pre-enforcement judicial 

review of mandatory health or safety standards issued 

pursuant to Title I) with id. § 874(b) (authorizing Secretary to 

impose additional “safeguards” in her discretion). As Wolf 

Run did in this case, an operator can seek meaningful review 

of a safeguard notice issued pursuant to section 314(b) in the 

citation proceeding. See id. § 815. The review process

mirrors that for the review of roof and ventilation plans that, 

like safeguard notices issued pursuant to section 314(b), are 

 

 8 The Commission requires a safeguard to “identify with specificity 

the nature of the hazard at which [the safeguard] is directed and the 

conduct required of the operator to remedy such hazard” and 

interprets a safeguard based upon “a narrow construction of the 

terms of the safeguard and its intended reach.” SOCCO I, 7 

FMSHRC at 512. Also, the inspector must issue a safeguard 

“based on his evaluation of the specific conditions at a particular

mine and on his determination that such conditions create a 

transportation hazard in need of correction.” SOCCO II, 14 

FMSHRC at 12. 
12

required by, but not listed in, Title III of the Mine Act. 

Carbon Cnty. Coal Co., 7 FMSHRC 1367, 1371 (1985) 

(review of operator’s challenge to ventilation plan “may be 

obtained by the operator’s refusal to adopt the disputed 

provision, thus triggering litigation before the Commission” 

pursuant to section 109, 30 U.S.C. § 820); see also Zeigler 

Coal, 536 F.2d at 406−07 (operator may obtain review of 

proposed ventilation plan in citation proceeding after failing

to adopt proposed plan).9

As the Commission has previously acknowledged, it may 

well be that “the safety of underground coal miners would be 

better advanced by the promulgation of mandatory safety 

standards” that ensure uniform regulation of transportation 

hazards for all underground coal mines. SOCCO II, 14 

FMSHRC at 16; see also Wolf Run Mining Co., 32 FMSHRC

at 1239−43 (Duffy, Comm’r, dissenting). And as the

dissenting commissioner here observed, “[h]aulage accidents 

consistently rank at or near the top of causes for mine 

fatalities and serious injuries” and “surface coal miners and 

both surface and underground hardrock miners are

protected . . . by comprehensive mandatory transportation and 

materials handling standards.” Id. at 1241 (emphasis 

added).

 

10

 9 Wolf Run cites one instance in which an operator allegedly sought 

pre-enforcement review of roof control and ventilation plan 

provisions but in that case, the operator was not allowed to 

challenge the provisions until the citation proceeding. Prairie State 

Generating Co., 32 FMSHRC 602, 602 (2010) (MSHA and 

operator entered into agreement that allowed operator to begin 

operation without approved ventilation plan so long as operator 

challenged ventilation plan provisions in citation proceeding 

following MSHA inspector’s issuance of citations).

Nonetheless, section 314(b) is an “unusually broad 

10 The dissenting commissioner reasoned that safeguard notices are 

not analogous to the mine-specific safety provisions at issue in 
13

grant of regulatory power,” SOCCO I, 7 FMSHRC at 512, 

that “manifests a legislative purpose to guard against all 

hazards attendant upon haulage and transport in coal mining,” 

Jim Walter Res. Inc., 7 FMSHRC 493, 496 (1985). 

B. Safeguard Notice Violation Constitutes Violation of Section 

314(b)

As discussed supra, section 314(b) is included in Title III 

of the Mine Act and Title III establishes interim mandatory 

safety standards for underground coal mines that are 

enforceable “to the same extent as any mandatory safety 

standard promulgated under [Title I].” 30 U.S.C. § 861(a). 

Section 314(a) sets forth specific standards for the 

transportation of persons in underground coal mines, 30 

U.S.C. § 874(a); section 314(b) then provides that “[o]ther

safeguards, adequate in the judgment of an authorized 

representative of the Secretary, to minimize hazards with 

respect to transportation of men and materials shall be 

provided,” 30 U.S.C. § 874(b) (emphasis added). “Other” 

plainly refers to the specific safeguards set forth in section 

314(a). Wolf Run also argues that the omission of the word 

“operator” in section 314(b) means that section 314(b) only 

 

Zeigler Coal because the safeguard notice procedure is different 

from the adoption procedures applicable to roof control and 

ventilation plans. 32 FMSHRC at 1240−41 (relying on Cyprus 

Emerald). He also stresses that regulating the transportation of 

persons and materials in underground coal mines through safeguard 

notices rather than mandatory safety standards applicable to all 

underground coal mines was detrimental to the safety of 

underground coal miners. Id. at 1241−42. While his concerns 

about the safety of underground coal miners are legitimate, they 

relate to a policy choice made by the Congress. The text of the 

Mine Act plainly authorizes the Secretary, through MSHA 

inspectors, to regulate the transportation of persons and materials in 

underground coal mines through safeguard notices. 
14

delegates authority to the Secretary through the MSHA 

inspectors without also imposing any duty on the operator. 

But other subsections of section 314 impose on the operator 

the duty to provide safeguards and they also omit the word 

“operator.” See, e.g., 30 U.S.C. § 874(a) (“Every hoist used 

to transport persons at a coal mine shall be equipped with . . .

stop controls.”); 30 U.S.C. § 874(c) ( “An accurate and 

reliable indicator of the position of the cage, platform, skip, 

bucket, or cars shall be provided.”); 30 U.S.C. § 874(e) 

(“Each locomotive and haulage car used in an underground 

coal mine shall be equipped with automatic brakes . . . .”). 

And contrary to Wolf Run’s reading, section 314(b) does not 

merely “delegate[] authority to individual mine inspectors to 

issue notices to provide safeguards.” Appellant’s Br. at 24. 

Section 314(b) imposes on the operator the duty to “provide” 

those safeguards the inspector deems “adequate . . . to 

minimize hazards with respect to transportation of men and 

materials.” 30 U.S.C. § 874(b) (emphasis added). 

We conclude that section 314(b) is an interim mandatory 

safety standard, the violation of which can be designated 

“significant and substantial,” Cyprus Emerald, 195 F.3d at 44; 

we further conclude that the violation of a safeguard notice 

issued pursuant to section 314(b) amounts to a violation of

section 314(b). Accordingly, we deny the petition for review. 

So ordered.