Cumberland Coal Resources, LP v. Federal Mine Safety & Health Review Commission

717 F.3d 1020, 405 U.S. App. D.C. 226, 43 Envtl. L. Rep. (Envtl. Law Inst.) 20123, 2013 WL 2450523, 2013 U.S. App. LEXIS 11479
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 7, 2013
Docket11-1464
StatusPublished
Cited by14 cases

This text of 717 F.3d 1020 (Cumberland Coal Resources, LP v. Federal Mine Safety & Health Review Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cumberland Coal Resources, LP v. Federal Mine Safety & Health Review Commission, 717 F.3d 1020, 405 U.S. App. D.C. 226, 43 Envtl. L. Rep. (Envtl. Law Inst.) 20123, 2013 WL 2450523, 2013 U.S. App. LEXIS 11479 (D.C. Cir. 2013).

Opinion

Opinion for the Court filed by Senior Circuit Judge SENTELLE.

SENTELLE, Senior Circuit Judge:

This case comes before us on a petition for review of the Federal Mine Safety and Health Review Commission’s determination that Cumberland - Coal Resources, LP’s failure to maintain adequate emergency lifelines in its mine’s escapeways was a significant and substantial violation of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 814(d)(1). Cumberland argues that the Commission applied the wrong standard when it reversed an administrative law judge’s (“ALJ’s”) determination that the violations were not significant and substantial, and that even if it applied the correct standard, its findings are not supported by substantial evidence. Because we conclude that the Commission applied the correct standard and that substantial evidence supported its findings, we deny Cumberland’s petition for review.

I. BACKGROUND

A. Statutory and Regulatory Background

■ In 1977,, Congress enacted the Federal Mine Safety and Health Act for the purpose of improving the working conditions of miners. 30 U.S.C. § 801. Under the Act, inspectors from the Mine Safety and Health Administration (“MSHA”), acting on behalf of the Secretary of Labor, conduct regular compliance inspections of mines. 30 U.S.C. § 813(a). When an inspector believes that the operator of a mine has violated the Act or enforceable regulations promulgated pursuant to the Act, the inspector is authorized to issue citations for such violations and, in appropriate cases, to issue orders to withdraw personnel from the mine until “such violation has been abated.” 30 U.S.C. § 814(b). Section 814(d)(1) provides that if the authorized representative of the Secretary finds that there has been a violation of a mandatory health or safety standard and also finds that the violation “is of such nature as could significantly and substantially contribute to the cause and effect of *1022 a coal or other mine safety or health hazard,” then the inspector is to include that finding in the citation issued for the violation. Such a finding of -a significant and substantial violation (often referred to as an “S & S violation”) is a precondition for enhanced enforcement actions under the Mine Safety Act. See 30 U.S.C; § 814(d) (discussed and applied in RAG Cumberland Resources LP v. FMSHRC, 272 F.3d 590, 592-93 (D.C.Cir.2001)).

The violations at issue in this case arose under amendments to the Mine Safety and Health Act enacted in response to three multiple-fatality mine disasters, in which miners who were unable to evacuate mines died. Specifically, the Mine Improvement and New Emergency Response Act of 2006 (“MINER Act”), amended 30 U.S.C. § 876 to require operators to provide flame resistant and directional lifelines in escapeways “to enable evacuation.” MINER Act Section 2(3)(b)(E)(iv), Pub.L. No. 109-236 (S. 2803) (June 15, 2006), codified at 30 U.S.C. § 876(b)(2)(E)(iv). Also in the wake of the disasters, MSHA issued an Emergency Temporary Standard on emergency mine evacuations in March 2006. 71 Fed. Reg. 12252 (Mar. 9,-2006). This standard became a final rule on December 8, 2006. 71 Fed. Reg. 71430 (Dec. 8, 2006). That rule requires operators to provide each mine escapeway with a lifeline that is “[l]ocated in such a manner for miners to use effectively to escape.” 30 C.F.R. § 75.380(d)(7)(iv). Each lifeline must be equipped with directional indicators showing the route of escape, indicators marking a branch line that is attached to the lifeline and leads to a cache of stored self-contained self-rescuers providing breathable air for emergencies, and indicators marking a branch line attached to the lifeline and leading to a refuge alternative for miners unable to escape. 30 C.F.R. § 75.380(d)(7)(v), (vii).

In December 2007, obedient to the statutory requirement that the' Secretary or his representative conduct frequent inspections of mines to ensure compliance with mandatory safety, standards, Thomas J. Whitehair II, Special. Investigator for the Department of Labor’s Mine Safety and Health Administration, conducted an im spection of the Cumberland Mine near Waynesburg, Pennsylvania. . Whitehair inspected four of the mine’s escapeways over a four-day period and issued a citation for each, alleging violation of the lifeline requirement of § 75.380(d)(7)(iv). He further designated each violation as significant and substantial, finding that the lack of adequate lifelines would have delayed miners escaping from an emergency, which would have been reasonably likely to result in serious injury or death.

B. The Administrative Proceedings

On April 11, 2008, the Secretary filed a petition for assessment of civil penalty for the violations. Cumberland contested the citations before an administrative law judge, who deleted the significant and substantial designations on January 21, 2011. See 33 FMSHRC 1482. Thereafter, the Commission heard the petition for review and granted the petition. The Commission reversed and remanded to the ALJ for the imposition of penalties. On October 25, 2011, the ALJ issued a decision on remand imposing penalties. After the Commission denied Cumberland’s petition for discretionary review, Cumberland filed the present petition for review with this court on November 29, 2011.

Because our review is dependent in part on the sufficiency of the evidence in the administrative proceedings, we will set forth the relevant evidence in some detail, as well as make further references to the record in our analysis. The evidence was presented in the testimony of Inspector *1023 Whitehair relating his findings and conclusions in the four-day visit to the mine in December 2007. Whitehair first testified as to his experience in mining and mine safety. According to that testimony, he had twenty-two years experience inspecting mines for MSHA and an additional fourteen years experience working in mines, including in mine safety positions. He then testified as to his findings of violations at the Cumberland Mine.

1. The Violations

a. The December 6, 2007, Violation

Whitehair testified that he inspected the No. 1 belt entry of the Five Butt East Longwall section on December 6, 2007.

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717 F.3d 1020, 405 U.S. App. D.C. 226, 43 Envtl. L. Rep. (Envtl. Law Inst.) 20123, 2013 WL 2450523, 2013 U.S. App. LEXIS 11479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cumberland-coal-resources-lp-v-federal-mine-safety-health-review-cadc-2013.