United States Court of Appeals, District of Columbia Circuit
Argued: October 14, 2015.
James P. McHugh argued the cause for petitioner. On the brief was Christopher D. Pence.
Cheryl C. Blair-Kijewski, Attorney, U.S. Department of Labor, argued the cause for respondents. With her on the brief was W. Christian Schumann, Counsel. John T. Sullivan, Attorney, entered an appearance.
Before: HENDERSON, ROGERS and TATEL, Circuit Judges.
ROGERS, Circuit Judge.
On Petition for Review of a Decision of the Federal Mine Safety & Health Review Commission
Rogers, Circuit Judge : Mach Mining (" Mach" ) petitions for review of the final order of the Federal Mine Safety and Health Review Commission concluding that two of Mach's regulatory violations under the Mine Safety and Health Act were the result of " high negligence" and one violation was also " significant and substantial." Mach contends these determinations were unwarranted in view of its efforts to mitigate the violations and the limited danger they posed. Because the factual findings underlying these determinations are supported by substantial evidence, we deny the petition.
The Federal Mine Safety and Health Act of 1977 was enacted giving " the first priority and concern" to the " health and safety of its most precious resource -- the miner," in view of " an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation's coal or other mines in order to prevent death and serious physical harm." 30 U.S.C. § § 801(a), (c). To carry out this purpose, Congress directed the Secretaries of Health and Human Services and Labor to develop permanent mandatory health or safety standards. Id. § 801(g). Inspectors from the Mine Safety and Health Administration (" MSHA" ) in the Department of Labor regularly inspect mines to ensure compliance with mandatory health or safety regulations. Id. § 813. Upon discovering a mine operator is not in compliance with these standards, the inspector must issue a written citation. Id. § 814(a). The Secretary of Labor is authorized to enforce the mandatory standards through civil penalties, see id. § § 815, 820, upon considering, among other things, the operator's history of previous violations and whether the operator was negligent, id. § 815(b)(1)(B). In more serious cases, the Secretary must issue a withdrawal order, bringing mine operations to a halt until the violation is abated. See id. § 814(d), (e), (h). When the Secretary pursues enforcement measures or seeks civil penalties, see id. § § 814, 815, 820, the mine operator has the opportunity for an administrative hearing and appeal to the Commission, followed by judicial review, id. § § 815, 816.
Mach operates a longwall coal mine in Johnston City, Illinois that releases more than 1 million cubic feet of methane daily. The Secretary of Labor proposed civil penalties for a series of citations that had been issued at the mine. Two citations are at issue here.
On October 30, 2008, Mach received a citation for violating 30 C.F.R. § 75.400, which provides that " [c]oal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings." Inspector Edward Law issued the citation based on coal that had accumulated around two conveyor belts -- a temporary belt and the main belt carrying mined coal out of the mine. Due to the extensive accumulations, the temporary belt was " actually sitting on top of the coal." Hr'g Tr. 113 (testimony of Inspector Law) (Aug. 2, 2011). To address the situation, Mach shut down the main belt (and thereby also the temporary belt) at 2:30 a.m. on October 30, and both belts remained off when Inspector Law observed the area later that morning. Inspector Law nonetheless concluded that the accumulations violation was the result of high negligence and was " significant and substantial."
On November 17, 2008, Mach received a citation for violating 30 C.F.R. § 75.380(f)(3)(iii), which prohibits mine operators from locating " battery charging stations" in primary escapeways. Inspector Dean Cripps found a charging station parked in the primary escapeway. He had cited Mach for the same violation on October 28; that citation was terminated on November 7, when another inspector observed that the charging station was locked so it could not be used unless the lock was removed. Although the charging station was locked when Inspector Cripps saw it on November 17, he nonetheless issued the citation because he would not have terminated the prior citation based merely on it being locked and he was convinced the station had been unlocked at times between November 7 and November 17. While Inspector Cripps was investigating the charging station, a mine foreman approached to see if his equipment had been charged, explaining that this was where he normally charged his equipment. Inspector Cripps concluded the November 17 violation was a result of Mach's high negligence.
The Secretary of Labor notified Mach of proposed assessments totaling $4,800 in civil penalties for the two regulatory violations. See 30 U.S.C. § 815. Mach admitted the violations but disputed whether either citation warranted a finding of high negligence and whether the coal accumulations violation was " significant and substantial." After a hearing, the ALJ concluded the requested penalties were appropriate. Mach Mining, LLC, 36 FMSHRC 2533, 2547 (2014). Mach petitions for review of the ALJ's decision, which became ...