Before: Judge L. Zane Gill
This
case arises from a petition for assessment of civil penalty filed by the
Secretary of Labor under Section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2012), (the “Act”.) It charges Hubble
Mining Co., LLC (“Hubble”) with a single violation of a mandatory standard and
seeks a civil penalty for that violation. 
The issue before me is
whether Hubble violated the standard as alleged and, if a violation is found,
the appropriate civil penalty for the violation. The case was heard on March 6,
2012, in Pikeville, Kentucky.
The Citation
The 104(d) Citation, Citation No. 7442179, was issued to Hubble on November 25, 2009, by MSHA Inspector and Health Specialist Nathan Mounts (“Mounts.”) (Ex. S-3) It alleges a 104(d) violation under the Mine Act, 30 U.S.C. § 814(d) (1), of 30 C.F.R. § 75.220(a) (l):
Each mine operator shall develop and follow a roof control plan, approved by the District Manager, that is suitable to the prevailing geologic conditions, and the mining system to be used at the mine. Additional measures shall be taken to protect persons if unusual hazards are encountered.
The relevant part of the October 20, 2009 Roof Control Plan states:
Highwall Precautions:
A substantially constructed canopy shall be provided at all intended drift or slope openings before penetrating the coal seam. Canopies shall also be installed at any other drift or slope openings prior to being used by workers to enter or exit the mine. The canopy shall be substantially constructed and extend from the highwall for a distance which will provide for adequate protection from falling highwall material.
(Ex. S-5a).
The Citation alleges the following condition or practice:
The operator has failed to comply with the approved roof control plan. Upon the initial development of the #2, #3, and #4 portals, the operator failed to installed [sic] substantially constructed canopies prior to penetrating/mining coal seam resulting in the Joy continuous miner being covered up by sandstone rock due to high wall failure. The certified mine foreman was operating the continuous miner at this time. The mine operator has engage [sic] in aggravated conduct constituting more than ordinary negligence. This violation is an unwarrantable failure to comply with a mandatory standard.
(Ex. S-3). According to the inspector, injury or illness was “highly likely” and could reasonably be expected to be “fatal;” the alleged violation was “significant and substantial;” one (1) person would be affected; and the operator’s negligence was “high.” (Ex. S-3). The proposed fine is $3,689.00.(Ex. S-1).
Findings of Fact
- Conclusions of Law
Stipulations
The parties entered the following written stipulations:
1.Hubble Mining Company, LLC is subject to the Federal Mine Safety and Health Act of 1977 and to the jurisdiction of the Federal Mine Safety and Health Review Commission and the presiding Administrative Law Judge has the authority to hear this case and issue a decision.
2.Hubble Mining Company, LLC has an effect upon interstate commerce within the meaning of the Federal Mine Safety and Health Act of 1977.
3.Hubble Mining Company, LLC operates the Hubble #7 Mine, I.D. No. 15-19266.
4.The Hubble #7 Mine produced 4,981 tons of coal in 2009, and had 199 hours worked in 2009.
5.A reasonable penalty will not affect Hubble Mining Company, LLC's ability to remain in business.
6.Respondent, Hubble Mining Company, LLC, abated the violation it was cited for herein in a timely manner and in good faith.
The Highwall Collapse
On
November 25, 2009, Hubble began the initial work of cutting the portals, or
shaft openings, into the coal seam for what would eventually become Hubble
Mine No. 7.
(Tr. 282) The proposed
underground mine was to have four portals. (Tr. 41) Prior to Hubble’s work, a
separate company, not involved in this dispute, had done preparatory excavation
to expose the coal seam and overlying rock. (Tr. 248-249) This created
a 40-foot vertical
highwall and a horizontal bench roughly 80 to 100 feet in depth. (Tr.
33)
Only a few miners were working at the No. 7 mine on November 25, 2009, when the highwall collapsed. (Tr. 72) Harold Akers (“Akers”), one of Hubble’s owners, was intermittently at the location throughout the morning. (Tr. 249-250) Akers was moving between the No. 7 mine and another Hubble mine located less than a mile away. (Tr. 249-250)
The intended portals were numbered from left to right, 1 through 4, facing the highwall. (Tr. 41; 49) The portals were intended to be cut on a roughly 60 degree angle, instead of straight into the highwall. (Tr. 53) When cutting an entry at a 60 degree angle, the continuous miner operator must take extra care to watch the continuous miner closely to ensure the entry is straight. (Tr. 72)
After a routine pre-shift examination, which included a review of the roof control plan with the miners, Mine Foreman Owen Carter (“Carter”) started cutting the new portals at the No. 7 mine. (Tr. 282) Carter used a remote controlled mining machine in the same fashion employed by Hubble throughout its history and by Akers for the previous 25 years. (Tr. 243; 251) Hubble had stationed four steel canopies at the No. 7 site. (Tr. 172) These canopies were substantially constructed of four-inch steel beams with metal plating on top to prevent rocks from falling into the protected area under the canopy. (Tr. 35-36) Before placing a canopy near the coal seam and its unsupported exposed rock highwall, Carter used a remote controlled continuous mining machine to make the first shallow cuts into the coal seam. (Tr. 243-244; 264)
Carter operated the remote controlled mining machine with a wireless remote box. (Tr. 298-299) While making the first portal cut, he stood some fifty to sixty feet from the highwall and off to one side. (Tr. 286) Carter testified that he did this in order to have a full view of the highwall in case the rock overlying the seam became unstable. (Tr. 280-281) Akers explained that the first cut is more dangerous than subsequent cuts due to the unknown nature of the rock strata behind the exposed rock. (Tr. 47; 248-249) He also explained that by not installing a canopy prior to the first cut, he was able to stand well away from the highwall, which allowed him to monitor the entire face of rock for instability. (Tr. 280-281; 248-49) Carter testified that if he had placed a canopy near the highwall prior to the first cut, he would not have been able to have the same view. (Tr. 292) Moreover, he would have likely had to operate the mining machine while under or very near the canopy in order to be able to view the cutter head in the coal seam. (Tr. 292) He testified that from near or under the canopy he would not have had a full view of the highwall and might have been killed by the highwall collapse (Tr. 292-293), an opinion shared by Inspector Nathan Mounts. (Tr. 138-139)
Carter cut the first portal (No. 4) at the No. 7 mine without incident. (Tr. 282-83) He remotely backed the mining machine out of the coal seam and used its cutting head to pick up and place the steel canopy in the portal. (Tr. 280; 282-283) This allowed him to stay away from the highwall at all times before permanent roof support was installed. (Tr. 286) A roof bolting machine was then moved into the shallow cut, the machine’s temporary hydraulic roof support system was used to support the roof, tests holes were drilled into the roof, and permanent roof support in the form of roof bolts were drilled and installed. (Tr. 246-248) After roof bolting was finished, a scoop was brought in to clean coal and rock from the entry and do any final positioning of the canopy. (Tr. 113-117; 244-245; 264)
Carter testified that the second portal (No. 3) was cut using the same method, also without incident. (Tr. 283; 293; 297-298) He then started cutting the third portal (No. 2) standing some 50-60 feet behind the miner and to the right and observing the highwall for any movement. (Tr. 166-167; 285-286; Ex. S-6) Carter testified that he began seeing rock flaking and signs of instability. (Tr. 286-87) He attempted to remotely back the mining machine out of the portal, but a 35'x20'x15' section of the highwall collapsed with an estimated 300,000 lbs of rock “sitting down” on top of and covering much of the mining machine. (Tr. 63; 206; 286-287; 299-300; Ex. S-6, #8) This was a fundamental highwall failure, something that a canopy would not have protected against. (Tr. 65-66; 132-133) No one was injured. The mine was abandoned until the site could be reworked and prepared for mining again. (Tr. 132-133)
Hubble notified MSHA of the collapse. (Tr. 28-29; 161) Inspector Mounts and Supervisory Inspector Silas Adkins traveled to the mine site at the same time but in separate vehicles. (Tr. 59; 161-162) When they arrived, portals 4 and 3 had been cut, and each had a canopy in position in the portal. (Tr. 45-46; 112-113; 172) Intended portal 1 had not yet been cut. (Tr. 49-50) Akers, Carter, and a roof bolting machine operator had discussions with Mounts and Adkins during the course of the inspection. (Tr. 72-73; 145) Mounts testified that Akers spoke primarily with Adkins, but that Mounts was also involved in some discussions with Akers. (Tr. 144-146) All of the individuals interviewed by Mounts and Adkins unguardedly and openly described the process that Hubble had used in cutting the portals, consistent with the description above. Mounts issued a 103(k) order and “dangered off” the area within 20 feet of the highwall. (Tr. 80-81)
Carter testified that, if the canopy were in place first, the miner operator would need to be under the canopy on the first cut in order to adequately see where the miner was cutting and what was happening on the highwall above him (Tr. 280-281), particularly where the first cut is taken from an angle relative to the face. (Tr. 288-289; 292) Carter testified that working under or near a canopy could create a false sense of safety (Tr. 292), which might have resulted in his death in this case. (Tr. 138-139; 292-293) Hubble’s witnesses testified that making the first cut without actually installing the canopy was much safer. (Tr. 256-257) MSHA’s witnesses countered that one of the benefits of having a canopy in place in the portal before any cutting is done is to provide a noise alert to anyone working in the area with his back to the cutting. (Tr. 182-183)
In deciding to issue the citation in this case, Mounts interpreted the word “provided,” as used in Hubble’s roof control plan, to mean the same thing as “installed.” (Tr. 103-104; 107-108) According to his interpretation, a canopy must be installed before the initial cut is taken. However, he also allowed that a canopy must be installed before miners can enter or leave through the new portal, which is the same as Hubble’s interpretation. (Tr. 78-79) Adkins also interpreted “provided” to mean the same thing as “installed.” (Tr. 145-146; 172-173; 220-221)
Discussion
The Commission discussed the interpretation of plan provisions in Martin Cnty. Coal, stating that
It is well established that plan provisions are enforceable as mandatory standards. UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989); Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Energy West Mining Co., 17 FMSHRC 1313, 1317 (Aug. 1995); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987). As such, the law governing the interpretation of regulatory standards is applicable to plan provisions. Energy West, 17 FMSHRC at 1317-1318.
The “language of a regulation … is the starting point for its interpretation.” Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). Where the language of a regulatory provision is clear, the terms of that provision must be enforced as they are written unless the regulator clearly intended the words to have a different meaning or unless such a meaning would lead to absurd results. See id.; Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). It is only when the meaning is ambiguous that the Secretary’s interpretation is accorded deference. See Udall v. Tallman, 380 U.S. 1, 16-17 (1965) (finding that reviewing body must “look to the administrative construction of the regulation if the meaning of the words used is in doubt”) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)).
28 FMSHRC 247, 254-255 (May 2006).
A
guiding and basic canon of statutory and regulatory interpretation is that
courts should “give effect, if possible, to every clause and word of a
[regulatory provision], avoiding if it may be, any construction which implies
that [the drafter] was ignorant of the meaning of the language it
employed.”
If the meaning of a
regulatory provision is plain, the provision should be interpreted so as to give
effect to that plain meaning. Exportal Ltd. v. United States, 902 F.2d
45, 50 (D.C. Cir. 1990); Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509
(D.C. Cir. 1984). When “a regulatory provision is clear, the terms of that
provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such a meaning would
lead to absurd results.” Martin Cnty. Coal, 28 FMSHRC at 255.
“In determining the meaning of regulations, the Commission … utilizes ‘traditional tools of … construction,’ including an examination of the text and the intent of the drafters.” Amax Coal Co., 19 FMSHRC 470, 474 (Mar. 1997) (quoting Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44-45 (D.C. Cir. 1990)). In a plain meaning analysis, the Commission also looks to “the language and design of the Secretary’s regulations as a whole.” New Warwick Mining Co., 18 FMSHRC 1365, 1368 (Aug. 1996). Reading the provision at issue in the context of the overall plan is consistent with the Commission’s construction of mine plans in accordance with well-settled rules of construction. Mettiki Coal Corp., 13 FMSHRC 3, 7 (Jan. 1991) (“a written document must be read as a whole, and … particular provisions should not be read in isolation”).
In determining whether a provision’s meaning is plain, courts apply all of the traditional tools of interpretation, including both the language of the particular provision at issue and the language, structure, and purpose of the statutory scheme as a whole. Tacoma, Wash. v. FERC, 331 F.3d 106, 114 (D.C. Cir. 2003); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1288 (D.C. Cir. 2000), cert. denied, 532 U.S. 970 (2001). According to Commission case law, where a plan provision is ambiguous, the Secretary is required to “dispel the ambiguity” by presenting evidence of the provision’s history and purpose and evidence that the provision has been consistently enforced. Jim Walter Res., Inc., 28 FMSHRC 579, 589 (Aug. 2006) (citation omitted).
The relevant portion of the October 20, 2009 Roof Control Plan states:
Highwall Precautions:
A substantially constructed canopy shall be provided at all intended drift or slope openings before penetrating the coal seam. Canopies shall also be installed at any other drift or slope openings prior to being used by workers to enter or exit the mine. The canopy shall be substantially constructed and extend from the highwall for a distance which will provide for adequate protection from falling highwall material.
(Ex. S-5a 6) (emphasis added). The Secretary alleges that Hubble violated the first sentence of the quoted paragraph because the words “provided” and “installed” both mean the same thing, and Hubble had not installed a canopy when the highwall failed, although it had placed a canopy at the site of portal No. 2. The Secretary’s interpretation is identical to the interpretation of the roof control plan offered by Inspector Mounts in his testimony at the hearing. Mounts essentially based his decision to cite Hubble for violating its roof control plan on an interpretation that makes “provided” and “installed” coterminous:
Q321 So what does provided mean?
A It means it’s got to be installed prior to penetrating the coal.
Q322 But those two words are different. Do you see the difference there? One
says provided, and what is your interpretation of provided, when you’re almost going to cut, you’re going to take your initial cut....
A It’s got to be....
Q323 ...and this says that you have to provide one. What does that require the
operator to do?
A He’s got to have a canopy installed.
Q324 Okay. So, to you, provided means actually putting it in place?
A Yes.
Q325 Okay. And what basis do you have to form that opinion that provided
means to put it into place?
A Men and equipment is going to be working in that area.
(Tr. 104)
Hubble argues that the roof control plan does not require that a canopy be installed prior to making the initial cut, but merely be “provided” at the site, ready to be installed before any miners enter the opening. Hubble also argues that its method of making the initial cut in a new
mine is safer than the
method the Secretary seeks to enforce.
The terms “provided” and “installed” should not be interpreted in isolation from the remaining elements of the roof control plan and the related mandatory standard, 30 C.F.R. § 75.220(a) (1). “It is a tenet of statutory interpretation that [words should be interpreted] ‘in their aggregate [to] take their purport from the setting in which they are used.”’ Rock of Ages Corp. v. Sec’y of Labor, 170 F.3d 148, 155 (2d Cir. 1999) (quoting King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (second alteration in original)). “In the absence of an express definition or an indication that the drafters intended a technical usage, the Commission has relied on the ordinary meaning of the word to be construed.” Berwind Natural Res. Corp., 21 FMSHRC 1284, 1306-1307 (Dec. 1999) (citations omitted).
When discussing statutory interpretation, the Commission has recognized that
[w]hen the meaning of the language of a statute or regulation is plain, the statute or regulation must be interpreted according to its terms, the ordinary meaning of its words prevails, and it cannot be expanded beyond its plain meaning.” Western Fuels-Utah, Inc., 11 FMSHRC 278, 283 (Mar. 1989); see also Consolidation Coal Co., 18 FMSHRC 1541, 1545 (Sept. 1996) (citations omitted). It is a cardinal principle of statutory and regulatory interpretation that words that are not technical in nature ‘are to be given their usual, natural, plain, ordinary, and commonly understood meaning.’ Western Fuels, 11 FMSHRC at 283 (citing Old Colony R.R. Co. v. Commissioner of Internal Revenue, 284 U.S. 552, 560 (1932)). It is only when the plain meaning is doubtful that the issue of deference to the Secretary's interpretation arises. See Pfizer Inc. v. Heckler, 735 F.2d at 1509 (deference considered “only when the plain meaning of the rule itself is doubtful or ambiguous”) (emphasis in original).
Akzo Nobel Salt, Inc., 21 FMSHRC 846, 852 (Aug. 1999).
The first objective in construing the language of this roof control plan is to give the words used their common meanings before attempting to force them into one mold or another to fit the arguments of the parties. The second objective is to attain internal consistency. Any interpretation that introduces an element of inconsistency in meaning is less compelling than one that enhances contextual consistency. The next step is to decide whether the regulatory meaning is sufficiently clear and apparent – a prerequisite to the subsequent determination of whether the Secretary’s interpretation deserves any special deference.
I find that the meanings of the contested words are plain both on their face and in the broader context of the entire roof control plan provision and the underlying mandatory standard, 30 C.F.R. § 75.220(a) (1). Common usage of the two words supports Hubble’s interpretation. The terms are sufficiently clear and must, therefore, be enforced according to the common meaning of the language used.
The common usages of the words “provided” and “installed,” as used in the contested portion of the roof control plan, connote distinct concepts and processes. This supports Hubble’s interpretation and implementation of the plan. It is apparent that a multi-step process is contemplated by the language in the roof control plan, which speaks of two distinct actions relating to placement of protective canopies. The two actions relate to different circumstances giving rise to the need to put canopies in place. First, before the coal seam is penetrated, a canopy must be provided at the site of an intended portal. Second, once the seam has been entered or some other new mine opening has been created, but before miners may enter or leave through that opening, a canopy must be installed.
The
first circumstance arises when a new drift or slope opening is being cut into a
coal seam, creating a new mine portal – the situation found in this case. In
such an instance, the roof control plan requires a canopy to be positioned or
“provided” at the cut location, but not necessarily installed there,
until miners begin
traveling through the portal. Travel through the portal by miners is the
necessary condition for the second circumstance, which is signaled by use of the
words “also” and “any other” and relates generally to any drift or slope
opening. It conceivably also covers a new opening in an entirely new mine or a
new opening in an existing mine that has yet to be used as a passageway for
miners to travel.
A canopy must be
“installed” before any mine opening, whether new or newly intended for use by
miners, can be traveled by miners.
This interpretation is logically integrated, gives effect to the common meanings of the words used, comprehends and harmonizes all parts of the roof control provision and its underlying mandatory standard, is consistent with the use of the two distinct terms “provided” and “installed,” requires no reference to any extraneous or ad hoc material to be understood, reconciles the use of the modifiers “also” and “any other,” is consistent with the testimony of the witnesses at the hearing, and makes good operational sense under the facts of this case.
This
interpretation is based on the common meaning of the terms “provided” and
“installed.” Words that are not terms of art and not statutorily defined are
customarily given their ordinary meanings, often derived from the dictionary.
Although I am no fan of resorting to dictionary definitions to assist in
interpreting contested language, I do so in this case to underscore the clarity
in meaning of the words “provided” and “installed.” As Judge Learned Hand
observed, “it is one of the surest indexes of a mature and developed
jurisprudence not to make a fortress out of the dictionary; but to remember that
statutes always have some purpose or object to accomplish, whose sympathetic and
imaginative discovery is the surest guide to their meaning.”
Nonetheless, Black’s Law Dictionary defines “provide” as follows: “To make, procure, or furnish for future use.” Black’s Law Dictionary 1224 (6th ed. 1990) (“Black’s”). The Oxford English Dictionary defines the verb “provide” (when used with an object) as follows: “make available for use; supply.” Oxford Univ. Press, definition of provide, Oxford Dictionaries, http://oxforddictionaries.com/definition/english/provide (accessed June 14, 2012). The same source also notes the following derivation of provide: “late Middle English (also in the sense ‘prepare to do, get ready’): from Latin providere ‘foresee, attend to’, from pro- ‘before’ + videre ‘to see’.” Id. Black’s Law Dictionary defines “install,” as follows: “[t]o set up or fix in position for use or service.” Black’s, supra, at 798 (6th ed. 1990). The Oxford English Dictionary defines the verb “install” (when used with an object) as follows: “place or fix (equipment or machinery) in position ready for use.” Oxford Univ. Press, definition of install, Oxford Dictionaries, http://oxforddictionaries.com/definition/english/install (last visited June 14, 2012).
Hubble’s
interpretation is internally consistent. It does not require that one of the key
terms be forced to carry the same meaning as the other in order to support the
proffered argument. It is clear on the basis of the common meanings of the terms
that “provided” does not mean the same thing as “installed.” Hubble’s
interpretation does no harm to either of the definitions or to the internal
consistency of the plan provision. The roof control plan’s language offers more
compelling support for the two-step process described by Hubble’s
witnesses
than it does for the
Secretary’s theory. (Tr. 220-221)
The Secretary argues that the words used in two successive sentences, and which are plainly different, be considered to mean the same thing. If the first sentence containing the word “provided” really meant “installed” then the second sentence would not have used the word “installed,” and the word “provided” in the first sentence would be superfluous. Such a reading would violate well-established rules of construction requiring that written provisions within the same document be read and interpreted consistently with each other and that effect must be given to each part of a document to avoid making any word meaningless or superfluous. See Mettiki Coal Corp., 13 FMSHRC at 7 (1991).
It is one thing when the disputed language, on its face, is subject to different interpretations. That is the essence of the type of ambiguity addressed by the cases cited above. In this instance, however, we are dealing an ambiguity raised strategically by the Secretary to support issuance of a citation. The ambiguity only arises if the common meanings of “provided” and “installed” are blurred and blended so as to make them identical. The roof control plan language can only be made ambiguous if one ignores the use of the two distinct words, “provided” and “installed,” or distorts the meanings of those two words to make them mean the same thing. In interpreting regulatory language, the court should not reach for hypothetical lexical possibilities before construing the apparent and accepted meaning of the words used. Nearly any language can be made ambiguous if the common and accepted meanings are distorted to create the ambiguity. I reject Secretary’s attempt to do it here.
Hubble “provided” a canopy at each of the new portals, as required by the plain language of the roof control plan. The roof control plan does not require installation of a canopy in this situation. The Secretary has failed to prove a violation of the roof control plan. For these reasons, I vacate the citation.
Deference to the Secretary’s Litigation Position
The Secretary argues that her interpretation of the roof control plan provisions at issue here should be given deference. I have concluded that the meaning of these provisions is sufficiently clear to be enforced as written. There is no ambiguity here that would raise the issue of deference. See Bluestone Coal Corp., 19 FMSHRC 1025, 1028 (June 1997). Nonetheless, in the interest of thoroughness, I will address the deference issue raised by the parties. Assuming arguendo that the language of the roof control plan lacked sufficient clarity to foreclose all debate as to its meaning, I conclude further that the Secretary’s interpretation of the roof control plan language is unreasonable and deserves no deference.
If
a regulatory provision
is ambiguous or silent on a
particular issue, the court is “required to determine whether an agency’s
interpretation of a statute is a reasonable one.” Phillips v. A&S
Construction Co., 31 FMSHRC 975, 979 (Sep. 2009); Chevron, U.S.A
Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843-844 (1984). In
other words, an agency is only entitled to deference when “[its] interpretation
of the [regulation] it is charged with administering . . . is reasonable.”
Phillips, 31 FMSHRC at 979 (citation omitted); see also Chevron,
467 U.S. at 844. Put another way, “[w]here the [provision at issue] is
silent or ambiguous, the agency’s interpretation is entitled to affirmance as
long as that interpretation is one of the permissible interpretations the agency
could have selected.” Phillips, 31 FMSHRC at 979; see also Joy Techs.,
Inc. v. Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996).
No reasonable interpretation of the actual provision language is offered by the Secretary. Even though an agency may be entitled to some degree of deference under both Chevron and Seminole, “an agency’s statutory interpretative authority is not unfettered.” Hobet Mining Co., 2004 WL 3256505, at *8 (FMSHRC Nov. 29, 2004). The U.S. Supreme Court noted that the amount of deference to which an agency is entitled depends on, among other things, the agency’s consistency and the persuasiveness of its position. See U.S. v. Mead Corp., 533 U.S. 218, 228 (2001). Consequently, the Court recognized that judicial responses to requests for deference range “from great respect at one end, see, e.g., Aluminum Co. of America v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 389-390, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984) (“‘substantial deference’” to administrative construction), to near indifference at the other, see, e.g., Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212-213, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (interpretation advanced for the first time in a litigation brief).” Id. at 228. See also Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (stating that “[t]he weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control”).
In Bowen, the Court recognized that “[it has] declined to give deference to an agency counsel’s interpretation of a statute where the agency itself has articulated no position on the question, on the ground that Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands.” 488 U.S. 204, 212 (1988) (emphasis added) (quoting Investment Co. Inst. v. Camp, 401 U.S. 617, 628 (1971)) (internal quotation marks omitted). Further, the Commission recognizes that an agency’s interpretation that is announced for the first time during the course of administrative litigation is only entitled to deference if it “reflect[s] the agency’s fair and considered judgment on the matter in question.” Doe Run Co., 22 FMSHRC 1243, 1253 (Oct. 2000) (quoting Akzo Nobel, 212 F.3d at 1304).
To determine the degree of deference, the court should consider whether the Secretary’s litigation position reflects MSHA’s “considered judgment” or is merely a post hoc rationalization. Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1304 (D.C. Cir. 2000) In Tilden Mining Co., Judge Weisberger set out an analytical framework that I find useful in making this determination. 24 FMSHRC 53, 60-61 (Jan. 2002) (ALJ). Three factors are relevant: (1) Is the proffered interpretation consistent with long standing agency practice? Tilden, 24 FMSHRC at 61 (citing Ass’n of Bituminous Contractors v. Apfel, 156 F.3d 1246, 1252 (D.C. Cir. 1998)). (2) Is there a history of consistent agency enforcement on this point? Tilden, 24 FMSHRC at 61 (noting that the conditions giving rise to the citation had been in existence for several years and had not been cited in past inspections). (3) If there is a change in enforcement direction, has the Secretary articulated any rationale for the change? Tilden, 24 FMSHRC at 61 (citing Thomas Jefferson University v. Shalala, 512 U.S. 504, 515-518 (1994)). Where these conditions are not present, the interpretation is properly characterized as a litigation position that reflects a post hoc rationalization deserving no deference. Tilden, 24 FMSHRC at 60-61.
In Tilden, the Commission held that neither the Secretary’s litigation position nor the interpretation of the inspector who issued the citation were entitled to deference because both failed to reflect MSHA’s “considered judgment.” 24 FMSHRC at 61. In support of this holding, the Commission noted that the interpretations did not articulate a long standing agency practice because the alleged violative conditions had existed for several years without being cited in past inspections. Thus, the Commission concluded that “[s]uch a change appears to be as a result of the thought processes of one individual, i.e., the issuing inspector, and that the Secretary’s litigation position is a “post hoc rationalization.” Tilden, 24 FMSHRC at 61.
The circumstances present here are similar to those in Tilden. The Secretary’s witnesses freely admitted that MSHA has not articulated a position consistent with Mounts’ and Adkins’ “interpretation” of the roof control plan. Both admitted having no knowledge of earlier citations written to enforce this roof control plan language in the manner attempted here. There is no written record of any interpretation consistent with the litigation position taken in this case. There is no history of agency practice, interpretation, or enforcement – longstanding or otherwise – relating to this issue. The “interpretations” offered in this case are simply post hoc rationalizations stemming from Mounts’ and Adkins’ cursory review of the roof control plan after being notified of the highwall failure.
Deference to a permissible agency interpretation is appropriate, despite its first appearance in the context of litigation, as long as it is apparent that it reflects a “fair and considered judgment on the matter in question.” Akzo Nobel, 212 F.3d at 1304 (quoting Auer, 519 U.S. 452, 462 (1997)) and cases cited therein. As is apparent from the Findings of Fact above, there is nothing in the record showing that MSHA has ever before interpreted the disputed language or anything similar to it so as to erase the apparent difference in the words “provided” and “installed” or to detract from the conclusion that a two-step process is contemplated. Furthermore, the Secretary has presented no factual evidence that her position in this case is the result of a principled development and application of an enforcement strategy. See generally Doe Run Co., 22 FMSHRC at 1253 (noting that the “fair and considered judgment” of MSHA was reflected in reexamination of litigation position in meetings involving MSHA’s administrators and members of the Solicitor’s Office, which resulted in an agency interpretation acceded to by the administrators who had developed the original interpretation).
From an analysis of the hearing testimony and due consideration of the Secretary’s post-hearing briefing it is clear to the Court that the Secretary’s attempt to meld “provided” and “installed” into a single concept was prompted by the needs of this case alone. No interpretation of the language of the roof control plan can support the Secretary’s litigation position without contorting the plan language in violation of accepted rules of interpretation.
MSHA’s decision to cite the operator appears to have been made at the scene of the highwall collapse. The choice was not made based on a clear violation, but rather based on the inspector’s belief that some action had to be taken in light of the sobering dimensions of the rock fall and the potential for disaster inherent in the situation, which thankfully remained only hypothetical as to any miners. The result is a circular argument based on the regulatory provision that seemed to best fit the situation at hand – specifically, the highwall section of the roof control plan. Mounts initiated the circularity by misquoting the canopy section of the roof control plan:
The operator has failed to comply with approved roof control plan. Upon the initial development of the #2, #3, and #4 portals, the operator failed to installed [sic] substantially constructed canopies prior to penetrating/mining coal seam resulting in the Joy continuous miner being covered up by sandstone rock due to high wall failure.
(Ex. S-3)(emphasis added)
Mounts’ enforcement action relied on his blurring of the distinction between the separate terms “provided” and “installed.” Nothing in the roof control plan contributes to this mistake. Its language and logic is clear to anyone with a passing knowledge of the permissible remote control mining method used by Hubble and consistent with the regulatory standard underlying the process of proposing and approving a roof control plan. The difficulty of supporting this interpretation is apparent in Mounts’ testimony about his enforcement thought process, above. Adkins’ testimony shows that he adopted Mounts’ logic without change. At hearing, the Secretary introduced nothing into the record to show that either Mounts’ or Adkins’ logic was the result of any further or prior consideration by MSHA that would give context to the interpretation that blends the terms “provided” and “installed.” The Secretary adopted Mounts’ initial interpretation as his litigation position, thus completing the circle and returning it to its point of origin.
In contrast, Akers and Carter testified that Hubble – and they individually– had openly and consistently used the same method for opening new portals on many occasions and over many years without any indication from MSHA that there was anything wrong with their practice. The contested plan language originated with Hubble and was approved by MSHA’s regional office. (Tr.184-185) There is no evidence that Hubble’s choice of roof control plan language had in any way ever been challenged or criticized by MSHA. It is fair to assume that had MSHA sensed any vagueness or contradiction in Hubble’s proposed plan language, it would have raised such concerns before approving the roof control plan rather than waiting until an incident such as this highwall collapse to raise them for the first time. MSHA’s failure to raise any concern about its interpretation in the past contravenes its current claim that the language means something other than what is apparent from the words chosen by Hubble and approved by MSHA. This also argues against MSHA’s litigation position that its interpretation deserves deference.
Absurd Results
An interpretation of the roof control plan that undercuts the purpose stated in the regulation is not permissible, is not reasonable, and would lead to absurd results. The language of the underlying mandatory standard illustrates this:
30 C.F.R. § 75.220
Roof control plan.
(a)(1) Each mine operator shall develop and follow a roof control plan, approved by the District Manager, that is suitable to the prevailing geological conditions, and the mining system to be used at the mine. Additional measures shall be taken to protect persons if unusual hazards are encountered.
[Emphasis added.]
The “[p]revailing geological conditions, and the mining system to be used at the mine,” are deliberately recognized as the backdrop for specific provisions in any roof control plan. The mine operator must draft a roof control plan, with knowledge of the prevailing geological conditions and the mining system it intends to use at the mine, and present it to the MSHA regional office for review and approval. (Tr. 184-185) Since the operator is tasked with knowledge of its mine’s geological peculiarities and is directed to propose a roof control plan suitable to the mining method to be used at its facility, it follows that a reasonable degree of operator discretion is contemplated by the standard. The operator is uniquely situated to posses the knowledge of the site and its intended mining methods.
Hubble presented testimony to show that it had used the remote controlled miner to make initial portal cuts many times over a long period of time. There is no evidence in the record that MSHA had ever expressed any concerns about the safety of using a remote controlled miner to do this work. There is nothing to indicate that Hubble’s choice of mining method was at odds with the intent of the mandatory standard.
The second sentence in 30 C.F.R. 75.220(a) (1) further obligates the operator to employ “[a]dditional measures” to protect miners “if unusual hazards are encountered.” Again, the standard vests discretion in the operator to take additional measures when necessary to provide for the safety of miners. Additional measures are measures beyond those specified in the actual language of the roof control plan but consistent with it and the overall safety mandate of the Mine Act. The record establishes that making the initial portal cut into a highwall is a procedure fraught with special danger. (Tr. 256) The use of a remote-controlled mining machine to make the initial portal cuts increased the measure of safety afforded to the men working in the area by allowing them to do this dangerous work from a greater distance. (Tr. 118-119) By employing this mining method, Hubble was exercising discretion allowed, indeed mandated, by 30 C.F.R. § 75.220(a) (1). Following the exact language of the roof control plan approved by MSHA by having a protective canopy at hand (“provided”) at the portal site facilitated the safest use of remote controlled miner as it made the first, most dangerous, cut. This is arguably more in alignment with the general requirements of 30 C.F.R. § 75.220(a) (1) than actually having a canopy installed before making the cut, which according to Mounts’ testimony would have impeded the safest use of the miner. (Tr. 138-39)
The operator discretion shown by Hubble here, i.e., opting to use the remote controlled miner and not installing a canopy prior to making the initial portal cut, is not inconsistent with a fair reading of the language of the roof control plan and the underlying standard. Hubble’s interpretation harmonizes the overall intent of 30 C.F.R. § 75.220(a) (1) and the actual words used in the roof control plan. It also harmonizes the deliberate choice of the two distinct words, as discussed above.
In contrast, the record provides an example of the creative lengths to which MSHA went to make sense of its litigation position in this case. Mounts testified that all initial cuts have to use two canopies, a provision that is found nowhere in the roof control plan. In essence, Mounts would have Hubble construct an oversized canopy that they would push up to the highwall before making the initial cut. (Tr. 56-57) They would then make the first cut from inside the oversized canopy so as to make the opening large enough to fit a second and smaller permanent canopy inside. (Tr. 56-57). Once the cut was made, the oversized canopy would be moved away and the second canopy placed into the opening. (Tr. 56-57) Mounts concedes that it would be impossible to make the initial cut using the permanent canopy because it has to be fit into an opening larger than itself, and it is impossible to cut a larger opening from inside the smaller canopy. (Tr. 57) An interpretation that requires the wholesale importation of a completely new and separate process that is absent from the contested language is clearly nothing more than an attempt to support an ad hoc litigation theory that deserves no deference.
The Secretary argues that Hubble had to install a canopy before making an initial portal cut into the highwall, a process that could complicate Hubble’s remote cutting method and increase the potential for injury to miners. In support of this argument, Adkins testified about three possible benefits arising from an installed canopy: (1) an installed canopy could divert falling rock into the void created by the mining machine as it cuts into the highwall under the canopy, thus directing it away from the miner operating the mining machine; (2) rock falling on the sheet metal roof of the canopy could serve as an audible warning to the miner operator in the event he was not facing the highwall at the moment, giving him extra seconds to run to safety; and (3) the canopy could provide shelter for miners working on mining equipment in the event of a breakdown. (Tr. 55; 170-172;182-183) In contrast, Hubble’s method of not installing a canopy until after it has made the initial highwall cut by remote control allows the miner operator to stand far enough back from the highwall to be out of the reach of even a serious collapse, such as this one.
On balance, the Secretary’s argument and its supporting testimony advocates a method that serves the interests of miner safety much less effectively, and could lead to the absurd result of undercutting the stated purpose of the Act to foster the safety of miners. The overall objective of the Mine Act, and presumably all of its related standards, 30 U.S.C. § 801(g) (1) is to foster the health and safety of miners. An interpretation of a roof control plan that would penalize a mining method that is clearly safer for miners and support a method that would increase the likelihood of serious injury to miners would lead to absurd results, is not reasonable, and does not deserve deference. In short, the Secretary’s litigation position does not deserve deference under the prevailing precedent.
MSHA’s proffered “interpretation” of the roof control plan ignores the actual language used, is not the “considered judgment” of MSHA, and is entitled to no deference.
ORDER
Citation No. 7442179 is vacated.
/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge
Distribution:
J. Malia Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North Suite 420, Nashville, TN 37219
Mickey Webster, Esq., Wyatt, Tarrant & Combs, LLP, 250 W. Main Street, Suite 1600, Lexington, Ky 40507-3211