United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2005 Decided June 10, 2005

Nos. 04-1292 & 04-1312

SECRETARY OF LABOR, MINE SAFETY AND HEALTH

ADMINISTRATION

PETITIONER/CROSS-RESPONDENT

v.

TWENTYMILE COAL COMPANY AND

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,

RESPONDENT/CROSS-PETITIONER

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.

Ralph Henry Moore, II argued the cause for

respondent/cross-petitioner. With him on the brief were Karen

L. Johnston and Trisha L. Culp.

Before: SENTELLE, RANDOLPH and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.
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SENTELLE, 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 Twentymile Coal Co. (“Twentymile”) violated the

mandatory 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. Sec’y of Labor v. Twentymile Coal

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

Order”). Because we agree with the Commission that

Twentymile did violate the mandatory training standard, we

deny Twentymile’s petition for review. But because we

disagree with the Commission and hold that the proposed

penalty assessment was issued within a reasonable time, we

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

order of the Commission and remanding the matter to the

Commission for further proceedings not inconsistent with this

opinion.

I. BACKGROUND

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.
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The geological conditions at the mine required that rock

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

transported away from pure coal extract to prevent accidental

commingling. 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 diameter. The rock-coal mix was

dumped into the chute from a conveyer belt, where it fell from

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

falling through the chute ranged in diameter from one to eight

inches; baffles 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 climbing 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-existing 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 nothing new to Twentymile. Other chutes

clogged. According to one mine employee, the clogging of

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

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

On June 6, 2000, after only ten days of operation, the

vertical chute in the mine clogged. Id. 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. Id. 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. Id. Webb was airlifted to a local
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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 Inspector Philip Gibson.

Both went to the mine with various law-enforcement and mine

officials. Id. Following a week’s investigation, Gibson issued

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

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

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

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

procedures of performing such task.” Six months later, on

January 4, 2001, MSHA issued an accident investigation report.

After another seven 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, MSHA 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

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

contest was stayed pending issuance of the penalty assessment.

Once MSHA issued 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 constituted

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. Twentymile 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) because it fit the

definition provided at section 48.2(f): A “task” is “a work
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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 subject to a fixed schedule. See 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 substantial”

based on the ALJ finding that there was a reasonable likelihood

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

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. Id. 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 “understandable” 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. Commission Order, 26 F.M.S.H.R.C. at

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

not scheduled events,” id. at 678, was not fatal to the finding

that “the rock chute would reasonably be anticipated to clog or

jam on a recurring basis,” id. The Commission held that 
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[w]here a task cannot be scheduled, but is reasonably

foreseeable as a recurring duty with discrete health and

safety concerns, an operator is expected to provide proper

planning and communication to ensure that workers

performing the task receive appropriate training. To hold

otherwise would be to defer training necessary to guard

against the hazards associated with the job until an

unfortunate experience ratifies the need for task training.

Id.

On the question of unreasonable delay between the close of

the investigation 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. Id. at 684. While the Commission

admitted that it “could possibly excuse delay in either the

preparation of the accident report or the processing of the

proposed penalty, the cumulative effect of the two significant

delays” exceeded “reasonable” limits. Id. (emphasis in

original). Therefore, the Commission “invoke[d] the

extraordinary remedy of vacating the civil penalty.” Id. at 685.

At the oral argument, the Commission raised sua 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 Commission 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 sufficiently specific; the Commission

held that the order was void ab initio. Commission Order, 26

F.M.S.H.R.C. at 672-75. But instead of vacating the order, the
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Commissioners elected to “modify” the section 104(g) order to

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

The Secretary requested reconsideration of the

Commission’s decision, but the request was denied.

Twentymile and the Secretary both filed timely petitions for

review of the Commission’s decision. Those petitions are

consolidated before us.

II. ANALYSIS

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 procedures 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” regulations 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 standard [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

Secretary’s interpretation of the Department of Labor’s own

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

interpretation of its own regulation: “under well-recognized

precedent, we can reject the Secretary’s interpretation only if ‘it
8

is plainly erroneous or inconsistent with the regulation.’” Sec’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 not previously occurred yet promise to occur with

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

only require mines to train workers for dangerous tasks that have

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

the relative rarity of individual types of accidents in any

particular mine, combined with the threat of harm inherent in

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

statute is hardly reasonable in a statutory regime that declares,

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

the coal or other mining 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 conditions 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.

 

Twentymile’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 of 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 render
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the particular law meaningless. Halverson 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 Secretary issues a citation or

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

the termination 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 that “the

termination of the investigation occurred when the accident

investigation report” – 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 interpretation 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 position before [the

Commission] is as much an exercise of delegated lawmaking

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

safety standard, [it] is therefore deserving of deference.” Sec’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 argues that the Commission ignored Supreme

Court precedent in refusing to assess a penalty for Twentymile’s

violation of the relevant standard. In Brock v. Pierce County the
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1 Where the Secretary and the Commission conflict 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-day period for

issuing a final determination on the recovery of funds under the

Comprehensive Employment and Training Act did not preclude

the Secretary from recovering the funds in enforcement of the

statutory 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 failure of an agency to observe

a procedural requirement voids subsequent agency action,

especially when important public rights are at stake.” Id. 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

his 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 Brock[,] have we ever construed a

provision that the Government ‘shall’ act within a specified

time, without more, as a jurisdictional 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 explicitly 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 assessment of a penalty “the demonstrated good

faith of the operator charged in attempting to achieve rapid
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compliance after notification of a violation.” 30 U.S.C. §

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

the response to the 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 respond to the order. With that starting point,

there 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 modification. 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

decision. 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. CONCLUSION

This Court grants the Secretary’s petition for review,

vacating the order of the Commission and remanding the matter

to the Commission for proceedings not inconsistent with the

instructions contained within this opinion. Twentymile’s

petition for review is dismissed.