<DOC>
[DOCID: f:penn9815.wais]
CYPRUS CUMBERLAND RESOURCES CORPORATION
July 29, 1999
PENN 98-15-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
July 29, 1999
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. PENN 98-15-R
:
CYPRUS CUMBERLAND :
RESOURCES CORPORATION :
BEFORE: Jordan, Chairman; Marks, Riley, Verheggen and Beatty,
Commissioners
DECISION
BY: Jordan, Chairman; Riley and Beatty, Commissioners
In this contest proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act"), Administrative Law Judge Jerold Feldman concluded
that, between the time that the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued an order to
Cyprus Cumberland Resources Corporation ("Cyprus") in June 1997
pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C.
� 814(d)(1), and its issuance of a section 104(d)(2) order on
September 25, 1997, MSHA had conducted an inspection of the
Cumberland Mine that disclosed no similar violations.[1]
20 FMSHRC 285 (Mar. 1998) (ALJ). The Commission granted the
Secretary's petition for discretionary review of the judge's
decision, granted the National Mining Association ("NMA") leave
to participate as amicus curiae, and heard oral argument. For
the reasons that follow, we vacate the judge's decision and
remand for further consideration consistent with this decision.
I.
Factual and Procedural Background
Cyprus operates the Cumberland Mine, an underground
bituminous coal mine near Waynesburg, Pennsylvania. 20 FMSHRC
at 287. The mine receives four regular AAA inspections,[2]
which are conducted over the course of the following quarters:
(1) October 1 through December 31; (2) January 1 through
March 31; (3) April 1 through June 30; and (4) July 1 through
September 30. Id. at 287-88. MSHA assigns two inspectors on
a full-time basis to conduct each quarterly inspection. Id. at
288. The assigned inspectors spend between three to five days
per week at the mine, and usually take the full quarter to
complete the inspection. Id. The assigned inspectors are
assisted by other inspectors from MSHA's Waynesburg field
office. Id. As a result, there is essentially a continuous
presence at the mine of at least two inspectors. Id. The two
assigned inspectors keep a record of the areas that they have
inspected by highlighting, and making notations on a mine map.
Id.; Tr. 101-02. The map does not reflect areas inspected by
other inspectors during that quarter. 20 FMSHRC at 288.
During the third quarter, from April 1 to June 30, 1997,
MSHA Inspectors Thomas McCort and Barry Radolec were assigned
to conduct the regular inspection of the mine. Id.; Tr. 96.
On June 18, during that inspection, Inspector McCort issued
to Cyprus a section 104(d)(1) order for a significant and
substantial ("S&S") and unwarrantable violation of 30 C.F.R.
� 75.360(b)(1).[3] Jt. Ex. 1, � 11; Gov't Ex. 2.
During the fourth quarter, from July 1 to September 30,
1997, MSHA Inspectors Victor Patterson and George Rantovich
were assigned to conduct the regular inspection. Tr. 106. On
September 24, during that inspection, Inspector Patterson
issued a section 104(a) citation for a violation of the roof
control standard, 30 C.F.R. � 75.202(a). Jt. Ex. 1, � 18;
Gov't Ex. 6. The citation was abated when a hydraulic jack
was placed in the cited area to support the roof. Gov't Ex. 6.
The next day, on September 25, Inspector Patterson issued a
section 104(d)(2) order alleging an S&S and unwarrantable
violation of section 75.202(a) when he discovered that the
hydraulic jack, which had been used to abate the cited
condition, had been removed, and there were indications that
miners had worked under the area of unsupported roof. Jt.
Ex. 1, �� 7, 17; Gov't Exs. 7, 8; Tr. 250-51. No other
unwarrantable failure orders had been issued at the mine b
etween June 18 and September 25. Jt. Ex. 1, � 13; Tr. 175.
The fourth quarterly regular inspection concluded on the
next day, September 26, when Inspector Patterson inspected
the 60 West Mains haulage. Jt. Ex. 1, � 16; Tr. 294-95. The
60 West Mains haulage is approximately 4,200 feet long and has
been the primary route of travel into and out of the mine since
1983. 20 FMSHRC at 288. Between June 18 and September 25,
inspectors traveled through the area "many times," or
approximately 60 or more round trips. Id.; Jt. Ex. 1, � 15.
The inspectors traveled on the tracks by closed mantrips, which
travel approximately 15 to 20 miles per hour ("mph"), and by
open jeeps, or "crickets," which travel approximately 10 to
12 mph 20 FMSHRC at 289.
Cyprus challenged the section 104(d)(2) order and the
matter proceeded to hearing before Judge Feldman. During the
hearing, Cyprus stipulated that it had violated section
75.202(a) on September 25, and that the violation was S&S and
had been caused by its unwarrantable failure. Tr. 10, 770.
The parties also stipulated that the issue before the judge
was whether an inspection disclosing no similar violations,
or an intervening "clean inspection," had occurred between the
time that the section 104(d)(1) order was issued on June 18,
and the section 104(d)(2) order was issued on September 26.
Jt. Ex. 1, � 12(a). They agreed that if the Secretary failed
to prove the absence of an intervening clean inspection, the
disputed section 104(d)(2) withdrawal order should be modified.
Id.
The judge concluded that there had been a intervening
clean inspection between the issuance of the sections 104(d)(1)
and 104(d)(2) orders. 20 FMSHRC at 294. The judge reasoned that
the purpose of an intervening inspection is to disclose whether
additional violations caused by unwarrantable failure exist,
and that such violations are generally more readily detectible.
Id. The judge determined that MSHA inspectors' repeated trips
through the 60 West Mains haulage in addition to the regular
inspection that had occurred prior to September 25 constituted
a clean inspection within the meaning of the Act. Id. at 294.
Accordingly, the judge modified the section 104(d)(2) order to
a section 104(d)(1) citation. Id. at 295.
**FOOTNOTES**
[1]: Section 104(d)(2) provides:
If a withdrawal order with respect to
any area in a coal or other mine has been
issued pursuant to paragraph (1), a
withdrawal order shall promptly be issued by
an authorized representative of the Secretary
who finds upon any subsequent inspection the
existence in such mine of violations similar
to those that resulted in the issuance of the
withdrawal order under paragraph (1) until
such time as an inspection of such mine
discloses no similar violations.
Following an inspection of such mine which
discloses no similar violations, the
provisions of paragraph (1) shall again be
applicable to that mine.
30 U.S.C. � 814(d)(2).
[2]: A regular AAA inspection is a "[s]afety and [h]ealth
[i]nspection of an entire mine." MSHA, U.S. Dep't of Labor, MSHA
Handbook Series, Coal General Inspection Procedures, at 8-1
(Sept. 1995).
[3]: The S&S terminology is taken from section 104(d)(1) of
the Act, which distinguishes as more serious any violation that
"could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard." 30 U.S.C. �
814(d)(1). The unwarrantable failure terminology is also taken
from section 104(d)(1) of the Act, which establishes more severe
sanctions for any violation that is caused by "an unwarrantable
failure of [an] operator to comply with . . . mandatory health or
safety standards." Id.
II.
Disposition
A. Section 104(d) Chain
Section 104(d) creates a "chain" of increasingly severe
sanctions that serve as an incentive for operator compliance.
See Naaco Mining Co., 9 FMSHRC 1541, 1545-46 (Sept. 1987). Under
section 104(d)(1), if an inspector finds a violation of a
mandatory standard during an inspection, and finds that the
violation is S&S and that it is also caused by unwarrantable
failure, he issues a citation under section 104(d)(1). 30 U.S.C.
� 814(d)(1). That citation is commonly referred to as a "section
104(d)(1) citation" or a "predicate citation." See Greenwich
Colleries, Div. of Pa. Mines Corp., 12 FMSHRC 940, 945 (May
1990). If during the same inspection or any subsequent
inspection within 90 days after issuance of the predicate
citation, the inspector finds another violation caused by
unwarrantable failure to comply with a standard, the inspector
issues a withdrawal order under section 104(d)(1), sometimes
referred to as a "predicate order." 30 U.S.C. � 814(d)(1);
Wyoming Fuel Co., 16 FMSHRC 1618, 1622 n.7 (Aug. 1994). If an
inspector "finds upon any subsequent inspection" a violation
caused by unwarrantable failure, he issues a withdrawal order for
the violation under section 104(d)(2).[4] 30 U.S.C. � 814(d)(2).
The issuance of withdrawal orders under section 104(d)(2) does
not cease and an operator remains on probation "until such time
as an inspection of such mine discloses no similar violations."
Id.; see Naaco, 9 FMSHRC at 1545.
B. Clean Inspection
The Commission has explained that section 104(d)(2) of the
Mine Act establishes three prerequisites for the issuance of an
initial section 104(d)(2) withdrawal order: (1) a valid
underlying section 104(d)(1) withdrawal order; (2) a violation of
a mandatory safety or health standard caused by unwarrantable
failure; and (3) the absence of an intervening clean inspection.
U.S. Steel Corp., 6 FMSHRC 1908, 1911 (Aug. 1984). Here, the
parties dispute the third factor, whether the Secretary has
established the absence of an intervening clean inspection.
The Commission has determined that a clean inspection under
section 104(d)(2) requires an inspection of a mine in its
entirety, noting that such an interpretation is consistent with
legislative history and Commission precedent. Kitt Energy Corp.,
6 FMSHRC 1596, 1599 (July 1984) (citing CF&I Steel Corp., 2
FMSHRC 3459, 3600 (Dec. 1980)), aff'd sub nom. UMWA v. FMSHRC,
768 F.2d 1477 (D.C. Cir. 1985); see also U.S. Steel Corp., 3
FMSHRC 5 (Jan. 1981); Old Ben Coal Corp., 3 FMSHRC 1186 (May
1981). As the Commission subsequently described its holding, "an
intervening clean inspection is not limited solely to a complete
regularly scheduled inspection, but may be composed of a
combination of inspections, so long as taken together they
constitute an inspection of the mine in its entirety." U.S.
Steel, 6 FMSHRC at 1912. The Commission also held that the
burden of proving the absence of an intervening clean inspection
resides with the Secretary. Kitt Energy, 6 FMSHRC at 1600. In
proving the absence of a clean inspection, the Secretary must
prove that there were portions of the mine that remained to be
inspected at the time that the disputed section 104(d)(2) order
was issued. Id.
In reaching its holding, the Commission expressly reaffirmed
the prior consistent interpretation of the same phrase in section
104(c)(2) of the Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. � 801 et seq. (1976) ("Coal Act") by the Department of
Interior's Board of Mine Operations Appeals.[5] Id. at 1598-99
(citing Eastern Associated Coal Corp., 3 IBMA 331 (1974)). In
Eastern, the Board held that a prerequisite for lifting
withdrawal order liability under section 104(d)(2) is "a clean
complete inspection," rather than a clean spot inspection. Id.
at 357-58 (emphasis added). It explained that a clean complete
inspection requires "a thorough examination of the conditions and
practices throughout a mine." 3 IBMA at 358 (emphasis omitted
and added). The Board later explained its holding that "several
completed partial or completed spot inspections of a mine may be
required to constitute a "complete inspection" of a mine in order
to lift the withdrawal order liability . . . ." Eastern
Associated Coal Corp., 3 IBMA 383, 386 (1974) (emphasis omitted).
In affirming Kitt Energy, the Court of Appeals for the D.C.
Circuit rejected a reading of the Commission's decision that "an
inspector's physical presence in each area of the mine -
regardless of the object of the inspection or the hazards
actually examined for in each particular area - qualifies as an
intervening `clean' inspection." 768 F.2d at 1479. The Court
explained that the "Mine Act provides for safeguards against
unseen, as well as visible, hazards," and that to "hold that the
Secretary need only inspect for obvious hazards to break the
`chain' would disregard those safeguards." Id. at 1480. The
Court noted that satisfaction of the clean inspection requirement
must be decided on a case-by-case basis. Id.
We conclude, in the instant case, that the judge erred in
his application of Commission precedent. The judge was required
to consider whether the Secretary made out her prima facie case
establishing the absence of an intervening clean inspection by
examining all inspection activity in the mine to determine
whether any part of the mine remained to be inspected. Kitt
Energy, 6 FMSHRC at 1600. The judge correctly stated that the
question of whether a clean inspection has occurred must be
decided on a case-by-case basis, and that inspections other than
regular inspections may enter into that consideration. 20 FMSHRC
at 294 (citing Kitt Energy; UMWA v. FMSHRC, 768 F.2d at 1480).
In addition, he correctly noted undisputed evidence that, between
the time that the sections 104(d)(1) and 104(d)(2) orders were
issued, all areas of the mine had been inspected as part of a
regular inspection except for the 60 West Mains haulage. 20
FMSHRC at 287; see also Jt. Ex. 1 � 13. The judge erred, however,
by failing to examine any of the evidence regarding spot or other
inspection activity to determine whether the 60 West Mains
haulage remained to be inspected. Such an examination was
fundamental to determining whether the Secretary met her burden.
Instead, the judge concluded that MSHA inspectors' travel
"somewhere between the sixth round trip, and the hundredth round
trip" through the 60 West Mains haulage amounted to an inspection
of the area within the meaning of section 104(d)(2) because such
travel would disclose unwarrantable violations, which he
considered to be "generally more readily detectible." 20 FMSHRC
at 294. Under Kitt Energy and its progeny, an intervening clean
inspection must encompass the mine in its entirety, and be
thorough and complete, rather than designed to disclose only
obvious violations.[6] Kitt Energy, 6 FMSHRC at 1601 ("the
essential determinant of a clean inspection under section
104(d)(2) is whether the entire mine has been inspected since
issuance of a prior 104(d) order with no `similar' violations
cited"); Eastern, 3 IBMA at 357-58 (stating that statutory
language requires a "clean complete inspection," or a "thorough
examination of conditions and practices throughout a mine.")
(emphasis omitted). Moreover, the premise for the judge's
conclusion is erroneous because any violation potentially may be
caused by unwarrantable failure, and factors that contribute to
that determination may not be immediately apparent. See, e.g.,
Rock of Ages Corp., 20 FMSHRC 106, 115-16 (Feb. 1998) (finding
unwarrantable failure for foreman's failure to order meaningful
search for unexploded bags of pyrodex that were buried under
rocks), aff'd in rel. part, 170 F.3d 148, 157-58 (2d Cir. 1999).
In arguing that she met her burden of proving the absence of
a clean inspection, the Secretary relies upon testimony by MSHA
Supervisory Inspector Robert Newhouse and a log submitted as
evidence by Cyprus depicting all inspection activity at the mine,
including both state and federal inspections.[7] S. Reply Br. at
3-5; Oral Arg. Tr. 15. Inspector Newhouse's testimony, however,
was limited to the regular inspections conducted at the mine.
Tr. 110, 119, 152-54. Because evidence is undisputed that the 60
West Mains haulage was not part of a regular inspection from June
18 to September 26, Inspector Newhouse's testimony is not
probative of whether the Secretary met her burden. On the other
hand, Cyprus's log includes spot as well as regular inspection
activity throughout the mine during the time period in question.
R. Ex. 1. The log and its various entries must be examined and
weighed against other evidence admitted into the record.[8] Such
examination and fact-finding more appropriately resides with the
judge in the first instance, rather than with the Commission on
review. See Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1139
(May 1984) ("It is . . . the judge's duty to draw conclusions
from the record . . . ."); Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1283 (Dec. 1998).
Accordingly, we vacate the judge's decision and remand for
the judge to consider, consistent with Commission precedent,
whether the Secretary met her burden of proving the absence of a
intervening clean inspection by examining evidence regarding any
inspection activity in the 60 West Mains haulage area during the
time period in question.
**FOOTNOTES**
[4]: The Commission has interpreted the phrase "similar
violations" in section 104(d)(2) (see n.1, supra) to mean
violations of any mandatory standard caused by unwarrantable
failure. Greenwich, 12 FMSHRC at 945; see also S. Rep. 95-181,
at 32 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 620 (1978)
(providing that "similar violations" in section 104(d)(2) means
"`unwarrantable' violations, whether or not the violations found
are substantively similar to the violation upon which the order .
. . was based.").
[5]: Section 104(d)(2) was carried over without substantive
change from section 104(c)(2) of the Coal Act.
[6]: We note that witnesses of both parties agreed that
there were conditions along the track that could not be inspected
from either the mantrip or the cricket when the vehicles traveled
at their normal speeds. In order to inspect the haulage,
inspectors examined roof conditions; rib conditions; the
condition of any ventilated stoppage; the direction of air flow;
track conditions, including whether the track is blocked properly
and the joints are tight; any manholes; clearances; fire-fighting
equipment; and any electrical installations in the area,
including cables, wiring, and switches. Tr. 117-18, 287-88, 472-
74. MSHA witnesses testified that it was not possible to
adequately inspect for some violative conditions from a moving
vehicle, particularly violations that are hidden, in the roof,
ribs, haulage tracks, stoppings, or those pertaining to
ventilation, fire protection, and electrical installations. Tr.
117-19, 145-47, 288, 292, 475, 488-89. Cyprus's safety manager,
Robert Bohach also acknowledged that an inspector would have to
stop and exit the vehicle in order to inspect a number of
conditions, including examining electrical installations, fire
fighting equipment, roof and rib conditions, ventilation, and the
condition of the track. Tr. 772, 818, 827-29, 844-48. In
addition, Michael Konosky, a safety representative at the mine,
testified that some of the conditions on the 60 West Mains
haulage would require an inspector to exit a moving vehicle in
order to more closely examine it. Tr. 684, 735.
[7]: At the hearing, the Secretary's counsel stated that
MSHA maintains separate records relating to quarterly inspections
and relating to how much of the mine has been inspected since the
issuance of any section 104(d)(1) order. Tr. 134-35. Curiously,
the Secretary failed to admit any records depicting how much of
the Cumberland Mine had been subject to inspections, other than
regular inspections, since issuance of the section 104(d)(1)
order on June 18. We note that in future cases, besides entering
into the record an inspection log depicting all inspection
activity at the mine since the issuance of a section 104(d)(1)
order, such as that admitted by Cyprus, the Secretary may also
rely upon inspectors' direct or hearsay (i.e., affidavit)
testimony regarding their inspection activity.
[8]: During oral argument, Cyprus's counsel clarified one
of the log's entries. Oral Arg. Tr. 16-17, 35-36.
III.
Conclusion
For the foregoing reasons, the judge's decision modifying
the section 104(d)(2) order issued to Cyprus to a section
104(d)(1) citation is vacated. We remand this matter to the
judge for further consideration consistent with this decision.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Robert H. Beatty, Jr.,
Commissioner
Commissioner Marks, concurring in part and dissenting in
part:
I agree with the majority that the judge erred in
concluding that an inspector's traveling on a moving vehicle
through a haulageway constituted an inspection of the area for
purposes of section 104(d)(2). Slip op. at 6. I also join
with the majority in rejecting the judge's incorrect reasoning
that a section 104(d)(2) inspection need only inspect for
obvious violations that are the result of unwarrantable failure.
Id. I write separately however because I believe the Secretary's
interpretation of section 104(d)(2) is entitled to deference.
Furthermore, I dissent from my colleagues decision to remand
because the record in this case supports only one conclusion -
that no clean inspection occurred. Therefore, I would reverse
the judge.
The first inquiry in statutory construction is "whether
Congress has directly spoken to the precise question in issue."
Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467
U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582,
584 (Apr. 1996). If a statute is clear and unambiguous, effect
must be given to its language. Chevron, 467 U.S. at 842-43.
Accord Local Union No. 1261, UMWA v. FMSHRC, 917 F.2d 42, 44
(D.C. Cir. 1990).[1] Cyprus argues that the language and
structure of the Mine Act demonstrates that an inspection of the
mine in its entirety for all mining hazards was not required to
qualify as a clean inspection under section 104(d)(2). C. Br.
11-13. For the most part, it relies on the fact that the
phrase "in its entirety" is absent in section 104(d)(2) but
is present in section 103(a), indicating to Cyprus that an
inspection in section 104(d)(2) means something other than an
inspection of the mine "in its entirety." C. Br. at 11. I
reject Cyprus' plain meaning approach. The Mine Act contains
many references to inspections that are simply not defined,
and that may refer to an inspection of a mine in its entirety.
See, e.g., sections 103(a), 104(a), 104(d)(1), 103(g)(1), 105(a),
107(a) & (b). Additionally, the use of the phrase, "an
inspection of such mine" as opposed to merely "an inspection"
or "an inspection in a mine" could easily be read to mean an
inspection of an entire mine. Furthermore, the Commission has
rejected a narrow, literal interpretation of the term "an
inspection" to mean any inspection, including an inspection of
only a portion of a mine. Kitt Energy Corp., 6 FMSHRC, 1596,
1599 (July 1984). Accordingly, Congress has not directly spoken
to the issue at hand and the Mine Act is ambiguous as to whether
"an inspection of such mine which discloses no similar violations"
requires an inspection of the entire mine for all hazards, as
the Secretary proposes.[2]
When a statute is ambiguous or silent on a point in question,
a second inquiry, commonly referred to as a "Chevron II" analysis,
is required to determine whether an agency's interpretation of a
statute is a reasonable one. See Chevron, 467 U.S. at 843-44;
Thunder Basin Coal Co., 18 FMSHRC at 584 n.2. Deference is accorded
to "an agency's interpretation of the statute it is charged with
administering when that interpretation is reasonable." Energy West
Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing
Chevron, 467 U.S. at 844). The agency's interpretation of the
statute is entitled to affirmance as long as that interpretation
is one of the permissible interpretations the agency could have
selected. Chevron, 467 U.S. at 843; Joy Technologies, Inc. v.
Secretary of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied,
520 U.S. 1209 (1997). See also Thunder Basin Coal Co. v. FMSHRC,
56 F.3d 1275, 1277 (10th Cir. 1995).
Applying this settled law, I conclude that the judge erred
when he rejected the Secretary's interpretation of the Act. The
judge expressly found the Secretary's interpretation was reasonable.
20 FMSHRC at 289. Because of his finding of reasonableness, he was
required under Chevron principles to adopt the Secretary's
interpretation. See Secretary of Labor v. FMSHRC, 111 F.3d 913,
916 (D.C. Cir. 1997) (where the Secretary and the Commission
disagree over the interpretation of the statute, deference is owed
to the Secretary); Secretary of Labor ex rel. Bushnell v. Cannelton
Indus., Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989) (same).[3]
In addition, I also find the Secretary's interpretation to be
reasonable. The Secretary asserts that a clean inspection requires
an inspection of the entire mine for all hazards. PDR at 6. As the
judge recognized, the legislative history supports an interpretation
that a clean inspection must be complete and cover the entire mine.
20 FMSHRC at 289; Kitt Energy, 6 FMSHRC at 1598-1600. The Senate
Report for the Mine Act provides that "the inspector shall promptly
issue a withdrawal order under [section 104(d)(2)] on each such
occurrence until an inspection of the mine in its entirety shows
`no similar violations.'" S. Rept. 95-181 at 31; Legis. Hist. at
619 (emphasis added.) That same report repeats that "an inspection
of the mine in its entirety" is necessary "in order to break the
sequence of the issuance of orders." S. Rept. 95-181 at 34; Legis.
Hist. at 622 (emphasis added).
Not only is the Secretary's interpretation consonant with the
legislative history of the Mine Act, it is also consistent with
Commission and court precedent. In Kitt, the Commission recognized
that "an inspection of such mine" has been consistently "construed
to require the inspection of a mine in its entirety." 6 FMSHRC at
1599 (emphasis in original). In UMWA v. FMSHRC, 768 F.2d 1477,
1480 (D.C. Cir. 1985), the court affirmed the Commission's Kitt
decision, but clarified that "[t]he only rational reading of the
intervening `clean' inspection requirement is that all areas of a
mine must be inspected for all hazards during the time period in
question." The D.C. Circuit rejected the approach that a clean
inspection could be based on an inspector's physical presence in
each area of the mine, specifically declining to give significance
to any portion of the Commission's Kitt decision that suggested
that inspector presence in an area was enough for a clean
inspection. Id. at 1479.
Finally, such a construction is consistent with the remedial
and safety promoting goals of the Act. Cannelton, 867 F.2d at 1437
(because Mine Act is a statute that is intended to protect health
and safety of miners, it must be interpreted in a broad manner to
actually achieve that goal); Rock of Ages Corp. v. Secretary of
Labor, 170 F.3d 148, 161 (2d. Cir. 1999) (interpretation correctly
took into account Mine Act's goal of preventing "mine accidents").
Cyprus asserts that something less than what the Secretary proposes,
such as an inspection for only obvious hazards, would satisfy the
clean inspection requirement. See Oral Arg. Tr. at 28-29. However,
Cyprus' construction contravenes the purpose of the clean inspection
requirement, which is to save lives and prevent injuries.[4] Instead
it is the Secretary's construction of a clean inspection, which
requires an examination of an entire mine for all hazards, that is
the reasonable one under the Act. In holding that a clean
inspection necessarily entails a complete mine inspection, the
predecessor of the Commission, the Department of Interior's Board
of Mine Operation Appeals in Eastern Associated Coal Corp., 3 IBMA
331, 358 (1974) (case cited with approval by Commission in Kitt),
explained that:
the intensive and quite possibly prolonged
scrutiny seems entirely called for in the
case of an operator which may have repeatedly
demonstrated its indifference to the health
or safety of miners and where its record
suggests that other equally grave infractions
resulting from unwarrantable failures to
comply may exist elsewhere in the mine.
I could not agree more with the Board's explanation.
Thus, I conclude that deference is owed to the Secretary's
interpretation that a clean inspection under section 104(d)(2)
requires an inspection of the entire mine for all hazards.
Applying that interpretation to case before us, it is abundantly
clear that a clean inspection did not occur.
The parties agree that between June 18 and September 25,
Cumberland had received a complete quarterly inspection except
for the 60 West Mains haulage. 20 FMSHRC at 287; Jt. Ex. 1,
� 13. The 60 West Mains haulage was not inspected as part of a
regular inspection until September 26, 1997, the day after the
subject 104(d)(2) Order was issued. 20 FMSHRC at 289; Tr.
154.[5] In addition, the record showed that the 60 West Mains
haulage had not been the subject of any other inspection during
the time in question. Cyprus admitted into evidence a log of all
inspection activity in the mine. R. Ex. 1. That log showed that
there were no inspections listed for the area of 60 West Mains
haulage between the period of June 18, 1997, and September 25,
1997. Id.[6]
**FOOTNOTES**
[1]: The examination to determine whether there is such a
clear Congressional intent is commonly referred to as a "Chevron
I" analysis. Thunder Basin, 18 FMSHRC at 584.
[2]: I conclude that the Secretary is interpreting the
portion of section 104(d)(2) that provides that the chain of
withdrawal order liability remains in effect "until such time as
an inspection of the mine discloses no similar violations." 30
U.S.C. � 814(d)(2). Such an inspection is commonly referred to
as a "clean" inspection of the mine. The Secretary's briefs to
the Commission mistakenly cited the portion of section 104(d)(2)
involving "any subsequent inspection" See e.g., PDR at 6.
However, at oral argument, Counsel for the Secretary clarified
that the Secretary was interpreting the section 104(d)(2)
provision dealing with clean inspections: "an inspection of such
mine which discloses no similar violations." Oral Arg. Tr. 5-6,
40-41. The Secretary also based her arguments to the judge on
the same section 104(d)(2) provision: "an inspection of such mine
which discloses no similar violations." S. Post-Hr'g Br. at 11.
[3]: Cyprus and amicus The National Mining Association
incorrectly argue that the Supreme Court case of Thunder Basin
Coal Co. v. Reich, 510 U.S. 200 (1994), which was not a deference
case, somehow changed this well-established deference principle.
See C. Br. at 18-24; NMA Br. at 4-12. However, well after the
Thunder Basin decision, the courts of appeals have consistently
applied the rule that when the Secretary and the Commission
diverge on ambiguous statutory or regulatory provisions, it is
the Secretary to whom deference is owed. Secretary v. FMSHRC,
111 F.3d at 920; Joy Technologies, 99 F.3d at 995; Secretary of
Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110,
114-16 (4th Cir. 1996). Indeed, neither dissenting Commissioner
Verheggen nor counsel for Cyprus provide us with citation to a
case where a court of appeals deferred to an interpretation of
the Commission, when the interpretation of the Secretary and that
of the Commission differed. Oral Arg. Tr. at 26. Additionally,
my dissenting colleague's reliance on The Helen Mining Co., 1
FMSHRC 1796 (Nov. 1979), to discredit the principle of Chevron
deference is faulty. See slip op. at 16-17. Helen was issued
five years prior to the Chevron case and therefore the Commission
did not have the benefit of Supreme Court guidance on this issue.
[4]: In 1998, there were 80 fatalities in coal and metal
and non-metal mines. As of July 26, 1999, 47 fatalities from
mining have been reported. MSHA, 1999 Fatalgrams and Fatal
Investigation Reports Metal and Nonmetal Mines (visited July 27,
1999) <http://www.msha.gov/FATALS/FABM99.HTM>; MSHA, 1999
Fatalgrams and Fatal Investigation Reports Coal Mines (visited
July 27, 1999) <http://www.msha.gov/
FATALS/FABC99.HTM>. As these figures reveal, despite efforts to
improve safety in mining, fatalities continue to mount.
Therefore, it remains crucial to construe the Mine Act in a
manner that promotes miner safety. As Mine Act section 2(a)
provides: "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." 30 U.S.C. � 801(a).
[5]: Dissenting Commissioner Verheggen takes issue with the
Secretary's decision to inspect the 60 West haulage at the end of
her inspection. Slip op. at 15 n.1. It seems inappropriate for
this reviewing body to second guess the everyday enforcement
decision of the Secretary and her agents.
[6]: I reject Cyprus' contention, adopted by dissenting
Commissioner Verheggen (slip op. at 15), that the Secretary must
prove that none of the inspectors in the mine stopped their
vehicles at any time to inspect the haulage. Even if an
inspector stopped his vehicle to examine a condition in the
haulage between June 18 and September 25, such conduct would not
amount to an inspection for purposes of section 104(d)(2),
because such an inspection would not be complete and cover all
hazards in the area. See also UMWA v. FMSHRC, 768 F.2d at 1479
(an inspector's presence in an area of a mine when he is not
examining for all hazards does not amount to a sufficient
inspection for purposes of section 104(d)(2)).
Accordingly, I conclude that the record only supports the
conclusion that the entire mine had not been inspected for all
mining hazards between June 18 and September 25 because the 60
West Mains haulage had not been the subject of a regular or other
inspection until after the disputed section 104(d)(2) order had
been issued. Accordingly, the record establishes the absence of
a clean intervening inspection within the meaning of section
104(d)(2), and the judge's decision should be reversed. I would
reinstate the subject section 104(d)(2) order.
Marc Lincoln Marks, Commissioner
Commissioner Verheggen, dissenting:
This case presents the issue of whether the Secretary proved
that there was no "clean inspection" of the Cumberland Mine
between September 25, 1997, when Inspector Patterson issued the
section 104(d)(2) order challenged by Cyprus Cumberland, and
June 18, 1997, when the previous section 104(d) order had been
issued. My colleagues in the majority conclude that the judge
failed to examine this issue adequately. Slip op. at 6. I conclude
that the record compels the conclusion that the Secretary failed
to meet her burden of proof. I would affirm the judge in result,
and therefore, respectfully dissent.
It is well established that "[t]he burden of establishing
the validity of [a section 104(d)(2) withdrawal] order,
necessarily including proof that an intervening clean inspection
has not occurred, appropriately rests with the Secretary." Kitt
Energy Corp., 6 FMSHRC 1596, 1600 (July 1984) (emphasis added),
aff'd sub nom. UMWA v. FMSHRC, 768 F.2d 1477 (D.C. Cir. 1985).
In Kitt, the Commission clearly explained this burden:
It is not necessary to view this burden . . .
as requiring proof of a negative. Rather,
the Secretary must only demonstrate that when
[her] inspector issued the contested order,
portions of the mine remained to be
inspected. . . . In order to carry out
[her] statutory duties properly, the
Secretary maintains records of all
inspections conducted in a mine and the
extent of those inspections. The contention
that the Secretary or [her] representative
cannot determine the areas of a mine that
have been inspected in any given period, or
the areas that remain to be inspected in a
future period, gives us great concern. The
very same record keeping, which the Secretary
claims to be burdensome, is necessary in
order to support the claim that a "regular"
clean inspection has not occurred. . . .
[P]roper administration of the Mine Act
requires that the Secretary maintain a
workable mine inspection record keeping
system.
Id. (footnote omitted). Thus, under Kitt, the Secretary is
required to maintain detailed records of inspections, and to
adduce these records in some fashion when defending the validity
of a section 104(d)(2) order.
Here, however, the Secretary singularly failed to follow the
evidentiary requirements of Kitt. There is no dispute that MSHA
had inspected all areas of Cyprus' Cumberland Mine except the 60
West Mains track haulage entry. 20 FMSHRC at 287; Jt. Ex. 1
� 13. As for the 60 West Mains, the Secretary adduced no clear,
unequivocal evidence that the track haulage "remained to be
inspected" (6 FMSHRC at 1600), despite the fact that several
inspectors made scores of trips along the entry. See 20 FMSHRC
at 294. Yet under the liberal evidentiary rules governing
Commission proceedings, the Secretary should have been able to
meet the Kitt burden with ease. For example, any one of the
Secretary's witnesses (such as Supervisory Coal Mine Inspector
Robert Newhouse) could have interviewed all the inspectors who
ever traveled along the 60 West Mains (which would have been easy
enough to accomplish over the telephone) to determine whether any
had inspected the area, and the nature of any such inspections.
The witness could then have testified regarding the results of
his or her investigation. See 29 C.F.R. � 2700.63(a) (hearsay
admissible in Commission proceedings, under which rule
Secretary's counsel would not have had to resort to calling each
inspector to the stand). Or the Secretary's counsel could have
assembled affidavits from all the inspectors and introduced the
affidavits into evidence through an appropriate sponsoring
witness. Id.; cf. slip op. at 7 n.7.
Indeed, the record is devoid of any evidence on this
question. I find this void in the record difficult to justify in
light of the statement at trial by the Secretary's counsel that
"[f]ollowing the Kitt decision[,] now, MSHA is forced to keep
track of . . . two different sets of inspection data, their
quarterly inspections and . . . how much of the mine has been
inspected." Tr. 134-35. No such records were introduced into
evidence. Instead, the Secretary offered only maps (Gov't Exs.
3, 4) tracking the activities of but two of the several
inspectors who were actively inspecting the Cumberland Mine, and
the testimony of Inspector Newhouse which my colleagues find "is
not probative of whether the Secretary met her burden." Slip op.
at 7.
My colleagues in the majority focus on the inspection log
maintained by Cyprus and conclude that it "must be examined and
weighed against other evidence" on remand. Id. After examining
this log, and in light of statements made by Cyprus' counsel at
oral argument, it is abundantly clear to me, however, that no
inferences can be drawn from the log that the 60 West Mains were
not inspected. All the log shows is the areas to where
inspectors traveled to conduct inspections. It does not indicate
what any inspectors did in transit. Given the extensive amount
of travel in the 60 West Mains, I find that it was incumbent upon
the Secretary to establish that none of her inspectors examined
the track haulage for hazards, a point on which Cyprus' log is
silent.[1]
The judge based his decision largely on his finding that
"somewhere between the sixth round trip [through the 60 West
Mains track entry] and the hundredth round trip, . . . the
inspection requirements of [section 104(d)(2)] were complied
with." 20 FMSHRC at 294. In light of the evidentiary weaknesses
of the Secretary's case, I find that the judge did not need to
make such a finding. Nor do I need to reach the merits of this
finding. Instead, I find that the Secretary failed to establish
a prima facie case, see U.S. Steel Corp., 6 FMSHRC 1908, 1914
(Aug. 1984) (Secretary failed to meet burden of proving validity
of section 104(d)(2) order where evidence was "entirely too vague
and uncertain"), and on this ground alone, I affirm the judge's
decision in result.
Given my finding that the Secretary's case failed at the
outset when she failed to meet her burden under Kitt, I normally
would go no further. I would like to respond, however, to some
points made by my colleague Commissioner Marks in his dissent.
He bases much of his dissenting opinion on his belief that "the
Secretary's interpretation of section 104(d)(2) is entitled to
deference" under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-44 (1984), and its progeny.
Slip op. at 9. I respectfully disagree with this basis for his
decision.
Before the judge, the Secretary asserted that "the `clean
inspection' requirement to break the [section] 104(d) chain in
this case required a detailed inspection of the 60 West Mains
entry conducted on foot." 20 FMSHRC at 289. The judge rejected
this interpretation of section 104(d), even though he found it
"plausible." Id. at 294. In reaching this conclusion, the judge
relied on the Commission's decision in The Helen Mining Co., 1
FMSHRC 1796 (Nov. 1979), which rejected arguments made by the
Secretary that her interpretations of the Mine Act are due
considerable deference. Id. at 1798-1801. Citing what he terms
the "settled law" of deference, Commissioner Marks argues that
the judge erred. Slip op. at 10 (citing Chevron and its
progeny).
I find, however, that the judge was correct. I believe that
the reasoning set forth in Helen Mining is as valid today as when
written, and was not superseded by Chevron when that decision was
handed down in 1984. Chevron deference principles[2] were
tailored by the Supreme Court for other federal courts of general
jurisdiction. The Chevron decision itself drives this point
home, a decision in which the federal courts were faced with the
task of reviewing a highly complex regulatory program promulgated
by the Environmental Protection Agency. 467 U.S. at 840, 845-59.
In Chevron, the Court recognized that the federal courts must not
become mired in detailed review of such programs. Id. at 865-66.
The Commission, however, is not a federal court of general
jurisdiction, as the judge correctly pointed out. See 20 FMSHRC
at 290. Under the plain terms of the Mine Act, the Commission is
a specialized body, 30 U.S.C. � 823(a), charged by Congress with
the specialized tasks of "assessing civil penalties for
violations of safety and health standards, [of] reviewing the
enforcement activities of the Secretary of Labor, and [of]
protecting miners against unlawful discrimination." Nomination
Hearing Before the Senate Committee on Human Resources, 95th
Cong. at 1 (1978). It is at the very heart of our statutorily
mandated purpose to concern ourselves with detailed review of the
Secretary's programs, and even more so, interpreting the Mine
Act. Helen Mining, 1 FMSHRC at 1801 ("Resolution of . . .
questions [of statutory interpretation] is a primary role of the
Commission.").
The Commission was correct in Helen Mining when it held:
[W]e will accord special weight to the
Secretary's view of the [Mine] Act and the
standards and regulations [she] adopts under
them. [Her] views will not be treated like
those of any other party, but will be treated
with extra attention and respect. Although
this weight may vary with the question before
the Commission, especially where the
Secretary has gained some special knowledge
or experience through [her] inspection,
investigation, prosecution, or
standard-making activities, it will not rise
to the inappropriate level the Secretary has
sought here.
1 FMSHRC at 1801 (citing Mine Act legislative history in which
Congress stated that the Commission would "accord weight to the
Secretary's views").
But as I stated above, the judge did not have to reach the
issue of whether the Secretary's interpretation of section
104(d)(2) was due deference. Instead, he ought to have dismissed
the Secretary's case on purely evidentiary grounds. Thus, I
choose to limit my discussion of deference to the preceding
general principles. I need not, and do not, reach the merits of
whether any weight is owed to the Secretary's interpretation
here.
Theodore F. Verheggen, Commissioner
Distribution
Colleen Geraghty, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Arlington, VA 22203
R. Henry Moore, Esq.
Buchanan Ingersoll
One Oxford Centre
301 Grant St., 20th Floor
Pittsburgh, PA 15219-1410
Michael Duffy, Esq.
National Mining Association
1430 17th Street, N.W.
Washington, D.C. 20034
Administrative Law Judge Jerold
Feldman
Federal Mine Safety and Health
Review Commission
2 Skyline, 10th Floor
5203 Leesburg Pike
Leesburg Pipe, VA 22041
**FOOTNOTES**
[1]: I find it curious that the Secretary would have saved
for last an area which saw such a heavy volume of mine traffic.
It only stands to reason that one should inspect the entrance to
a mine before going any further so as to ensure that travel
through the entrance is safe.
[2]: Which must be distinguished from another principle set
forth in Chevron that when a statute is clear and unambiguous,
effect must be given to its language. 467 U.S. at 842-43.