# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Arg ued September 19, 2011 Decided November 4, 2011

No. 10

- 1392

W OLF R UN M INING C OMPANY

, P ETITIONER

v.

F EDERAL M INE S AFETY AND H EALTH R EVIEW C OMMISSION

AND S ECRETARY OF L ABOR

, R ESPONDENTS

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: H ENDERSON

, T ATEL and G RIFFITH

, Circuit Judges

.2

Opinion for the Court filed by Circuit Judge H ENDERSON

.

K AREN L E C RAFT H ENDERSON

, Circuit Judge : Petitioner Wolf Run Mining Company (Wolf Run) seeks r eview 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 pu rsuant 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 th e Mine Act , which limits the “significa nt and substantial” designation to a violation of a “mandator y health or safety

standard .” 30 U.S.C. § 814(d). For the reasons set forth below, we agree wit h the Commission majority that the

vi olation 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 a n operator’s violation of a mand atory 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 and3

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 se ction 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 w ithdrawal order. S ee infra note 6.

Section 3( l ) of the Mine Act defines a “mand atory health or safety standard ” as “the interim mandatory health or safety standards established by [ T itles ] II and III of this [ Act ] , and the standards promulgated pursuant to [ T itle ] 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 promul gated under the provisions of [T itle I of the Act].” Id . § 841(a). Title III of the Mine Act provides similar authority for interim mandatory safe ty standards “ applicabl e to all underground coal mines ” and “ enforced in the same manner and to the same extent as any mandatory safety

standard promulgated under [T itle 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 minimize4

hazards with respect to transportation of men and materials shall be provided .” 30 U.S.C. § 874(b) (emphase s 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 ha s established “the criteria by which [ the inspector ] will be g uid ed 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

MSH A inspector issues a written safeguard notice to a n operator specifying the safeguard the operator must provide

and t he 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); s ee 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 shal l 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 purs uant 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 MSH A inspector issued s afeguard notice number 7095089 with respect to the Sentinel mine

. The notice required that all moving conveyo r 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 cite d both section 314(b) and 30 C.F.R § 75.1403

- 5(j) 4

On January 23, 2008, a MSH A 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 safeguar d notice issued on June 27, 2000 . The inspector designated the violati on “significant

and substantial

. ” as its authority

.

Wolf Run contested the citation a nd the case was assigned to an administrative law j udge (A LJ). 5

3 Th e 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 c limbing

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 f acilities 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 th e 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 operator6

ALJ

, Wolf Run moved for a partial summary d ecision

, 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 vi olated 3 0 C.F.R. § 1403

- 5(j), that the gravity level was “reasonably likely” to cause “lost work days

or rest ricted duty” injury for at least one mine r, that its negligence level was “moderate ” and that the Secretary’s proposed civil penalty of $1,304 was appropriate 6 pursuant to
the criteria listed in the Mine Act

. 32 FMSHRC at 1230 ; s ee 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” viol ations 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

Commissio n 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 substanti al] violation.” Id

. The dissenting

c ommissioner concluded inter alia that a MSH A inspector cannot designate a violation of a safeguard notice issu ed pursuant to section 314(b) “significant and substantial”

because neither 30 C.F.R. § 75.1403

- 5(j) nor the safeguard

notice itself fall s 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 se ction 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

Con gress. ’ ” 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 Re s . Def. Council, Inc. , 467 U.S. 837, 843 (1984)). To determine whether the meaning of

a statutory provisio n 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 citatio n omitted ) (brackets in Tacoma )

. In deciding whether the text8

resolves the meaning of a statutory provis i on, 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 defer s to the Secretary’s interpretation provided the interpretation is “ ‘a permissible

construction of the statute.’ ” Cannelto n 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 viola tion 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 Safet y Standard ”

The text of the Mine Act unambiguously establishes that section 314(b) constitutes a n interim mandatory sa fety standard. Section 3( l ) defines a “mand atory health or safety

standard ” as “the interim mandatory health or sa fety standards

establi shed by [T itles] II and III of this [Act], and the standards promulga ted pursuant to [T itle] I of this [Act].” 30 U.S.C. § 802( l ). While section 314(b) is not a “standard[] promulgated pursuant to [T itle ] I of [the Mine] Act,” it is plainly an interim mandatory sa fety standard “established by
[T itle] III.”

That section 314(b) constitutes an in terim mandatory safety standard is manifested by the text of section 301(a):9

T he 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 sa fety standard promulgated under [section 101] of this [Act].

30 U.S.C. § 861(a). As the Secretary has not issue d improved mandatory safety standards for transportation hazards in underground coal mines, section 314(b) remains an “interim mandatory safet y standard . . . [that] shall be enforced in the same manner and to the same extent as any mandatory safety

standard.” Id

. And w hile s ection 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 r equired by, but not listed in, T itle

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, sec tion 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 safegua rds 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 in10

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 requ ired 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 designat ed “significant and

substantial .” N either 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 a nd 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 est ablished 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. S ection 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 overstate d because section 314(b) itself

— as well as the safeguard notice procedure s

— 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) ( operator11

is not bound by criteria guiding i ssuance 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”). Additional ly, 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 51 2

. 8

Moreover, t he 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

- and

comment. 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) (authorizi ng Secretary to impose additional “s afeguards ” 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 revie w 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

transport ation hazard in need of correction.” SOCCO II , 14

FMSHRC at 12.12

r equired by, but not listed in, T itle 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.2 d at 406

**−** 07 (operator ma y 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

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

at 1239

**−** 43 (Duffy, Comm’r, dissenting). And a s 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

challe nged 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 in13

grant of regulatory power,” SOCCO I , 7 FMSHRC at 512, that “manifests a legislative purpose to guard against all

hazards atten dant 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 Min e Act and Title III establishes interim mandatory safety standards for underground coal mines that are

enforceable “to the same extent as any man datory safety

standard promulgated under [ Title I ]

. ” 30 U.S.C. § 861(a). Section 314(a) sets forth specific standards for the transportation of person s in underground coal mines

, 30 U.S.C. § 874(a) ; s ection 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 me n and materials shall be provided ,” 30 U.S.C. § 874(b) (emphasis added)

. “Other” plainly refer s 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 becau se 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 co al 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 regulat e 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.

B ut other sub sections 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) (“E very hoist used to transport persons at a coal mine shall be equipped with . . . stop controls.”); 30 U.S.C. § 874(c) ( “A n accurate and reliable indicator of the position of the cage, platform, skip, bucket, or cars shall be provi ded.”); 30 U.S.C. § 874(e) (“E ach locomotive and haulage car used in an underground

coal mine shall be equipped with automatic brakes

. . . .”).

And c ontrary to Wolf Run ’s reading , section 314(b) does not merely “delegate[] authority to individual mine inspectors to

issue n otices 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 mandator y safety standard, the violation of which can be designated “significant and substantial,” Cyprus Emerald , 195 F.3d at 44;

we further conclude that t he violation of a safeguard notice issued pursuant to section 314(b) amounts to a violation of

s ection 314(b)

. Accordingly , we deny the petition for review

.
So ordered.