# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2005 Decided June 10, 2005

Nos. 04-1292 & 04-1312

S ECRETARY OF L

ABOR

, M INE S AFETY AND H EALTH

A DMINISTRATION

P ETITIONER /C ROSS -R ESPONDENT

v.

T WENTYMILE C OAL C OMPANY AND

F EDERAL M INE S AFETY AND H EALTH R

EVIEW C OMMISSION

, R ESPONDENT /C ROSS -P ETITIONER

On Petitions for Review of an Order of the

Federal Mine Safety and Health Review Commission

Jerald S. Feingold , Attorney, Secretary of Labor, argued the

cause for petitioner/cross-respondents. With him on the brief

was W. Christian Schumann , Counsel.

R alph Henry Moore, II argued the cause for

responde nt/cross-petitioner. With him on the brief were K aren

L. Johnston and Trisha L. Culp

.

Before : S E

NTELLE

, R

ANDOLPH and G

ARLAND

, Circuit

Judges

.

Opinion for the Court filed by Circuit Judge S ENTELLE

.2

S ENTELLE

, Circuit Judge : This case comes before us on

cross-petitions for review

of an order of the Federal Mine Safety

and Health Review Commission wherein the Commission ruled

that Twentym

ile Coal Co. (“Twentymile”) violated the

ma ndatory training standard set forth at 30 C.F.R. § 48.7(c)

(2002), but that the proposed penalty assessment was not issued

within a reasonable time. S ec’y of Lab or v. Twentymile Coal

Co.

, 26 F.M.S.H.R.C. 666 (Aug. 12, 2004) (“ C ommission

Order ”). Because we agree with the Commission that

Twentymile did violate the mandatory training standard, we

deny Twent ymile’s petition for review. But because we

disagree with the Commission and hold that the proposed

penalty assessment was issued within a reasonable tim e, we

grant the Secretary of Labor’s petition for review, vacating the

order of the Com

mission and remanding the matter to the

Commission

for further proceedings not inconsistent with this

opinion.

I. B ACKGROUND

A. The Accident & Investigation

Twentymile operates the Foidel Creek Mine (“the mine”),

a large underground coal mine in Colorado. Among its three

hundred miners was Kyle Webb, who had worked on the crew

of Matthew Winey for more than four years. 26 F.M.S.H.R.C.

at 668. Winey, in turn, worked under Kevin Olson, acting shift

supervisor. Id.3

The geological conditions at the mine requir ed that rock

sometimes be extracted with the coa l. The rock-coal mix was

transported away from pure coal extract to pre vent accidental

comm i ngling. A chute was designed to facilitate the process.

The 45-to-50-foot chute, five feet square, was placed in a

vertical shaft twelve feet in di ameter. The rock-coal mix was

dumped into the chute from a conveyer belt, where i t fell from

one level of the mine to the level below. I d at 667. The chunks

falling through the chute

ranged in diameter from one to eight

inches; baff

les slowed the fall of the chunks and prevented

damage to the box or conveyer belt at the lower level. Miners

could maintain the chute by c limbing the ladder alongside the

chute and opening one of four doors that accessed the inside of

the chute. Id.

This particular chute was a new addition to the mine at the

time of the accident, and differed from pre-exist ing chutes in

that it was “slightly slanted . . . instead of [] complete[ly]

vertical,” ALJ Tr. 171 (May 29, 2002), but the clearing of chutes

in general was n

othing new to Twentymile. Other chutes

clogge d. According to one mine employee, the clogging of

chutes was a “recurring proble m,” happening every four to six

months. 26 F.M.S.H.R.C. at 677.

On June 6, 200 0, after only ten days of operation, the

vertical chute in the mine clogged. I d. at 667. Olson assigned

Winey to unplug the chute; at some point after this team began

working to clear the chute, Webb climbed the ladder and

attempted to unclog it. I

d. at 668. Neither Winey nor beltman

Rick Fadely instructed Webb to climb the ladder, and Winey did

not ask Webb what he was doing. Id.

The material in the chute began to move; Webb fell from

the ladder and landed on a platform, and the chute’s rock-coal

mixture fell upon

him. I d. W ebb was airlifted to a local4

hospital where he was treated for “serious, but non-fatal, head

injuries.” Id.

R. Lincoln Derick, the mine’ s safety manager, was apprised

of the incident: he contacted MSHA Ins pector Philip Gibson.

B oth went to the mine with various law-enforcement and m ine

officials. I

d. Following a week’s investigation, Gibson issued

an order, pursua nt to Mine Act section 104(g)(1), 30 U.S.C. §

814(g)(1), charging Twenty mile with a violation of 30 C.F.R. §

48.7(c), which provides th at “[m]iners assigned a new task . . .

shall be instructed in the safety and health aspects and safe work

p rocedures of performing such task.” Six months later, on

January 4, 2001, MSHA issued an accid ent investigation report.

After another se ven months had passed, on July 31, 2001, the

report and an accompanying assessment report were sent to the

U.S. Department of Labor’s Assessment Office. On November

9, 2001, MS HA proposed a specific penalty assessment and the

case proceeded to trial before an administrative law judge

(“ALJ”). 26 F.M.S.H.R.C. at 669-70.

B. Proceedings Before the ALJ

T wentymile filed a notice of contest; on August 1, 2000, the

contest was stayed pending issuance of the penalty ass essment.

Once MSHA i

ssued its proposed penalty assessment in

November 2001, the stay was lifted. See Commission Order , 26

F.M.S.H.R.C. at 670.

The ALJ held that the clearing of the rock chute con stituted

a “new task” under 30 C.F.R. § 48.7(c) such that the mine was

required to train the workers for the matter prior to engaging the

chute. T

wentymile Coal Co. v. Secretary of Labor

, 25

F.M.S.H.R.C. 373 (July 14, 2003) (“ ALJ Order

”). The clearing

of the chute was a “task” under section 48.7(c) becaus e it fit the

definition provided at section 48.2(f): A “task” is “a work5

assignment that includes duties of a job that occur on a regular

basis and which requires physical abilities and job knowledge.”

30 C.F.R. § 48.2(f

). The ALJ held that the clearing of the chute

was a matter that would occur on a “regular” basis even though

it had not occurred previously at that ten-day-old chute and was

not su bject to a fixed schedule. S ee Commission Order

, 26

F.M.S.H.R.C. at 670; ALJ Order , 25 F.M.S.H.R.C. at 383-84.

The violation was deemed “significant and su b stantial”

based on the ALJ finding that there was a reasonable likelihood

that the hazard would result in an injury or severe illness. A LJ

Order

, 25 F.M.S.H.R.C. at 385-86. The ALJ ordered a penalty

despite the seventeen-month span of time between the

Inspector’s June 16, 2000 order and the November 9, 2001

MSHA penalty assessment. I d. at 386-88. He held that the

reasons for delay – to wit, a shift in personnel in MSHA offices

and “a failure by the new employee to understand his duties” –

were “u nderstandable” and that Twentymile suffered no

prejudice from the delay

. Id. at 387-88. The ALJ reduced the

proposed $6,000 penalty to $1,500. Id. at 389.

C. Proceedings Before the Commission

Twentymile appealed the ALJ’s decision to the

Commission. Before the Commission, Twentymile again

argued, inter alia

, that the unclogging of the chute was not a

“new task” under sections 48.7(c) and 48.2(f) because it was not

a process performed on a regular basis. The Commission

accepted the Secretary’s argument that substantial evidence

supported the ALJ’s findings regarding the recurring nature of

unclogging the chute. C ommission Order

, 26 F.M.S.H.R.C. at

677. The fact that “[j]ams, clogs, or other failures are, of course,

not scheduled eve nts,” i d. at 678, was not fatal to the finding

that “the rock chute would reasonabl y be anticipated to clog or

jam on a recurring basis,” id. The Commission held that6

[w]here a ta s k cannot be scheduled, but is reasonably

foreseeable as a recurring duty with discrete health and

safety concerns, an operator is expect ed to provide proper

planning and communication to e nsure that workers

performing the task receiv e appropriate training. To hold

otherwi se would be to defer training necessary to guard

agai nst the hazards associated with the job until an

unfortunate experience ratifies the need for task training.

Id.

O n the question of unreasonable delay between the close of

the inv e stigation and the issuance of the civil penalty, however,

the Commission reversed the decision of the ALJ. The

Commission held that the Secretary failed to show “adequate

cause for the delay so as to render it ‘reasonable.’ ” Id. at 682-

83. The Commission held that “the bulk of the delay” was due

to “unexplained delays” and “outright neglect” on the part of the

Secretary’s personnel. I d. at 684. While the Commission

admitted that it “c ould possibly excuse delay in e ither the

preparation of the accident report or the processing of the

proposed penalty, the cumulative effect of the two significant

delays” exceeded

“reasonable” limits. I d. (emphasis in

original). T

herefore, the C ommission “invoke[d] the

extraordinary remedy of vacating the civil penalty.” I

d. at 685.

At the oral argument, the Commission raised s ua sponte the

question of whether the section 104(g) order met the

requirements of the Mine Act despite its lack of specific

identification of

the miners subject to its coverage. In the order,

the Commissi

on concluded that the miner-specific order issued

on June 16, 2000, pursuant to section 104(g) of the Mine Act, 30

U.S.C. § 814(g), was not sufficie ntly specific; the Commission

held th at the order was void a b initio

. C ommission Order

, 26

F.M.S.H.R.C. at 672-75. But instead of vacating the order, the7

Commissio ners elected to “modify” the section 104(g) order to

a section 104(a) citation. Id. at 675.

The Secretary requested reconsid eration of the

Commission

’s decision, but the request was denied.

Twentymile and the Secretary both filed timely petitions for

review of the Commission’s decisio n. Those petitions are

consolidated before us.

II. A NALYSIS

A. “New Task”

As noted above, the mine safety regulation at issue requires

that “[m]iners

assigned a new task . . . be instructed in the safety

and health aspects and safe work procedur es of the task.” 30

C.F.R. § 48.7(c). A “task” is “a work assignment that includes

duties of a job that occur on a regular basis and which requires

physical abilities and job knowledge.” Id. § 48.2(f).

The Secretary interprets the “new task” regulati o ns as

applying to those

work assignments which, despite never having

occurred at the particular mine before, are such that a

“reasonably prudent operator familiar with the mining industry

and the protective purposes of the sta n dard [would] have

recognized

. . . would occur on a regular basis.” Resp. Br. of

Sec’y of Labor at 10 (quoting ALJ Order , 25 F.M.S.H.R.C. at

383-84).

Twentymile challenges not the Secretary’s interpretation of

the relevant provisions of the Mine Act, but rather the

Secr etary’s interpretation of the Department of Labor’s own

regulations. This Court affords great deference to an agency’s

interpretation of its ow

n regulation: “under well-recognized

precedent, we can reject the Secretary’s interpretation only if ‘it8

is plainly erroneous or inconsistent wit h the regulation.’” S ec’y

of Labor v. Ohio Valley Coal Co. , 359 F.3d 531, 534-35 (D.C.

Cir. 2004) (quoting Akzo Nobel Salt, Inc. v. FMSHRC , 212 F.3d

1301, 1303 (D.C. Cir. 2000)). There is no such error or

inconsistency in this case. To read the regulation’s use of the

term “occur” in a way that precludes coverage of events that

have no t previously occurred yet promise to occur with

regularity in the future would lead to absurd results: it would

o nly require mines to train workers for dangerous tasks that hav e

already been undertaken at least once before in the mine. Given

the relative rarity of individ ual types of accidents in any

particular mine, combined wit h the threat of harm inherent in

any single occurrence of these rare accidents, this reading of the

statute is hardly reasonab le in a statutory regime that declares,

first and foremost, that “the firs t priority and concern of all in

the coal or other m

ining industry must be the health and safety

of its most precious resource

– the miner,” and that “there is an

urgent need to provide more effective means and measures for

improving the working co nditions and practices in the Nation’s

coal or other mines in order to prevent death and serious

physical harm[.]” Mine Act §§ 801(a), (c), codified at 30 U.S.C.

§ 801.

Twenty mile’s interpretation of the regulation is particularly

untenable because it would render the pertinent regulation a

nullity

. Under that reading of the regulation, the Commission

could not require training on the cleaning o f the chute until after

workers had begun to clean the chute regularly. We cannot take

seriously the suggestion that the Commission endorsed a policy

promoting that the Twentymile miners attempt work when it is

most dangerous: that is, when the miner is utterly ignorant of the

task at hand. Such a state of affairs is precisely the situation the

Mine Act, and the relevant regulations, have been enacted to

guard against. This Court will not adopt an interpretation of a

statute or regulation when such an interpretation would render9

th e particular law meaningless. H alverson v. Slater

, 129 F.3d

180, 185 (D.C. Cir. 1997); AT&T Corp. v. FCC , 394 F.3d 933,

938-39 (D.C. Cir. 2005).

B. Penalty

This question, as opposed to the preceding one, requires that

we review interpretation of a statute rather than a regulation.

Section 105(a) of the Mine Act provides that “[i]f, after an

inspection or investigation, the Se cretary issues a citation or

order under section 104, he shall, within a reasonable time after

the termi nation of such inspection or investigation, notify the

operator . . . of the civil penalty proposed . . . .” 30 U.S.C. §

815(a).

The Secretary interprets this statute as providing t hat “the

termination of the inve s tigation occurred when the accident

investigation rep ort” – not the MSHA Inspector’s order – “was

issued.” Pet. Br. of Sec’y of Labor at 43. Admittedly, this is not

a formalized statement of statutory interpretatio n of the sort that

usual invokes Chevron deference. U.S. v. Mead Corp. , 533 U.S.

218, 227-28 (2001). But because “in the statutory scheme of the

Mine Act, the Secretary’s litigating positi on before [the

Commi ssion] is as much an exercise of delegated lawmaking

powers as is the Secretary’s promulgation of a . . . health and

safety standard, [it] is therefore des erving of deference.” S ec’y

of Labor v. Excel Mining, LLC

, 334 F.3d 1, 6 (D.C. Cir. 2003)

(quoting RAG Cumberland Res. LP v. FMSHRC

, 272 F.3d 590,

596 n.9 (D.C. Cir. 2001) (quoting Martin v. Occupational Safety

& Health Review Comm ’n , 499 U.S. 144, 157 (1991)))

(quotation marks omitted) (alterations in original).

The Secretary arg

ues that the Commission ignored Supreme

Court precedent in r efusing to assess a penalty for Twentymile’s

violation of the relevant standard. In Brock v. Pierce County the10

1 Where the Secretary and the Commission confl ict in their

interpretations of the statute, we defer to the Secretary who has been

empowered by Congress to promulgate regulations under the relevant

statute. Martin , 499 U.S. at 58. Court held that Congress’s specification of a 120-da y period for

issuing a final determination on the recovery of funds under the

Comprehen

sive Employment and Training Act did n ot preclude

the Secretary from recovering the funds in enforcement of the

statut ory provisions after the 120-day period lapsed. 476 U.S.

253, 265 (1986) . The Court warned that it “would be most

reluctant to conclude that every fa ilure of an agency to observe

a pro cedural requirement voids subsequent agency action,

especially when important public rights are at s take.” I d. at 260.

The Court concluded that “[t]he 120-day provision was clearly

intended to spur the Secretary to action, not to limit the scope of

h is authority. Congress intended that the Secretary should have

maximum authority to protect the integrity of the program.”

Id. at 265 (quotation marks omitted). And the Court noted

recently that not “since B rock [,] have we ever construed a

provision that the Government ‘shall’ act within a s pecified

time, without more, as a jurisdictiona l limit precluding action

later.” Barnhart v. Peabody Coal Co.

, 537 U.S. 149, 158 (2003)

(collecting cases). The Secretary argues that the Commission

erred as a matter of law when it purported to prohibit the

Secretary’s action in a manner explic i tly prohibited by the

Supreme Court.

But we need not decide this issue, because we again find the

Secretary’s interpretation concerning the termination of the

investigation reasonable. 1 The Commission’s position that the

investigation ends at the time of the abatement order is clearly

erroneous: Section 105 itself includes among the factors to

consider in the assess ment of a penalty “the demonstrated good

faith of t he operator charged in attempting to achieve rapid11

compliance after notifi

c ation of a violation .”

30 U.S.C. §

815(b)(1)(B) (emphasis added). Given that Congress included

the response to th

e investigation among the relevant criteria, we

cannot deem

it plausible that Congress contemplated that any

determination

of the reasonableness of time could begin before

the determination could be made – that is, before the mine had

an opportunity to r espond to the order. With that starting point,

t here is no unreasonable delay, and the Commission’s refusal to

impose penalty is without foundation. We further note that it

would be particularly inappropriate to set aside the Secretary’s

recommendation for penalty in this case given that Twentymile,

after repeated opportunity, has yet to show any prejudice to

itself from whatever delay in fact occurred.

C. Order Modification

As noted above, the Commission considered sua sponte the

requirements of a section 104 (g) order and chose to “modify”

the order into a section 104(a) citation. Twentymile now objects

to this modificati

o n. This Court lacks jurisdiction to consider

Twentymile’s objection because Twentymile did not urge this

objection before Commission, either in the original hearing or

in a petition for reconsideration after the Commission issued its

decisi on. We cannot consider an “objection that has not been

urged before the Commission,” 30 U.S.C. § 816(a)(1), absent

“extraordinary

circumstances,” and we see no such

circumstances before us.

III. C ONCLUSION

This Court grants the Secretary’s petition for review,

vacating the order of the Commi ssion and remanding the matter

to the Commission for

proceedings not inconsistent with the

instructions conta

ined within this opinion. Twentymile’s

petition for review is dismissed.