Secretary of Labor v. Small Mine Development

Plain-English summary

Small Mine Development advanced an exploratory decline about 1,000 feet with only one escapeway and had not installed the refuge chamber positioned outside the portal. A Commission majority held that 30 C.F.R. § 57.11050(a) is ambiguous about refuge requirements when exploration or development proceeds with one escapeway. Reading the standard as a whole, the majority deferred to the Secretary's interpretation that miners must always have two means of survival, so a refuge is required whenever only one functional escapeway exists. It also affirmed the S&S designation because evacuation standards are evaluated in the assumed context of an emergency, where a blocked sole escapeway and absent refuge would likely cause serious or fatal injury. Commissioners Michael G. Young and William I. Althen dissented, viewing the regulation as plainly requiring a refuge only while a second opening is actually being developed and finding the S&S proof speculative.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.11050(a)
• Outcome: The refuge-chamber violation and its S&S designation were affirmed over a two-Commissioner dissent.
• Key point: During ore-body exploration or development, permission to operate with one escapeway does not eliminate the separate need for a refuge as an alternate means of survival.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA)

v.

SMALL MINE DEVELOPMENT

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Docket Nos. WEST 2011-1351-M

WEST
2011-1153-RM

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, and Althen, Commissioners                   

DECISION

BY: Jordan, Chairman; Cohen
and Nakamura, Commissioners

This consolidated
contest and civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). At issue is a single
citation issued to Small Mine Development (“SMD”) for its failure to install a
refuge chamber while engaged in the initial development and exploration of an
ore body. On December 11, 2012, the Judge affirmed the citation and the
significant and substantial (“S&S”)[1]
designation. 34 FMSHRC 3193 (Dec. 2012) (ALJ).

SMD filed
a petition for discretionary review in which it asserts that the Secretary’s
interpretation of 30 C.F.R. § 57.11050(a)[2],
requiring a refuge chamber when there is only one functioning escapeway, is
contrary to the standard’s plain meaning and not entitled to deference. In
addition, SMD argues that the citation was not properly designated as S&S. For
the reasons that follow, we affirm the Judge’s decision.

I.

Factual and Procedural Background

SMD was contracted to drive the initial exploratory
drift at Newmont Gold’s Vista Mine in Nevada in order to determine the
feasibility of mining a gold ore deposit. The exploratory drift was designed to
be 16 feet wide, 16 feet high, and 1,371 feet in length with a decline from the
portal of 9.5%. The drift was also designed to have four crosscuts, which were
intended to eventually accommodate storage, drilling stations, and a refuge
chamber.

On June 7, 2011, an inspector from the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) conducted a spot
inspection of the Vista Mine after hearing that the mine had not yet installed
a refuge chamber. When the inspector arrived at the mine site, he observed a
refuge chamber, forklift, loader, and various trucks near the portal. Although
the inspector did not enter the mine, he was able to determine from a mine map that
SMD had advanced the drift approximately 1000 feet and was nearing completion
of the fourth crosscut, but had yet to install an emergency refuge. Tr. 21-28.

Based on these observations, the inspector issued
Citation No. 8605242, alleging a violation of section 57.11050(b)[3] for SMD’s
failure to deploy a refuge chamber while the mine had only one escapeway. The
inspector believed that if the conditions continued unabated, it was reasonably
likely that the lack of a refuge would lead to a fatal injury were there to be
a roof fall or equipment fire that prevented miners from getting out through
the mine’s sole escapeway. Tr. 32-34.

The
Judge concluded that because both parties had put forth reasonable
interpretations regarding the obligation to provide a refuge chamber in light
of the conditions existing at the time of the inspection, the standard was
ambiguous. The Judge found further that deference to the Secretary’s
interpretation was warranted because it was reasonable, and consistent with the
language and safety-promoting purposes of the standard and the Mine Act. Id.
at 3203, 3205-06.

In
addition, the Judge affirmed the Secretary’s negligence and gravity findings. On
the S&S issue, the Judge found that in the event of a ground fall or
equipment fire, the lack of a refuge was reasonably likely to result in serious
injuries. Id. at 3208. The Judge rejected SMD’s arguments that additional
safety measures provided by the operator would reduce the likelihood of injury
and affirmed the Secretary’s S&S designation. Id. at 3207-08.

The
Commission granted SMD’s petition for discretionary review.

II.

Disposition

A.        Regulatory Interpretation

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 Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC
1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557
(Aug. 1993). If, however, a “regulation is silent or ambiguous with respect to
the specific point at issue, we must defer to the agency’s interpretation as
long as it is reasonable.” Tenet HealthSystems Healthcorp. v. Thompson,
254 F.3d 238, 248 (D.C. Cir. 2001). See generally, Auer v. Robins,
519 U.S. 452 (1997).

The parties disagree as to section 57.11050(a)’s
meaning. SMD argues that a literal reading of the standard would require a
refuge chamber only “while a second opening to the surface is being developed.”
According to the operator, therefore, if no second opening is developed, no refuge
chamber is required. Because the standard only recommends, but does not
require, a second escapeway during exploration or development of an ore body,
SMD contends that an operator who chooses not to provide that second escapeway,
cannot be required to install a refuge chamber.

The Secretary argues that taken together, the first
two sentences of the standard clearly require that mines have two escapeways,
and that if a mine does not have a second escapeway, it must have a method of
refuge and one escapeway. The Secretary contends that the third sentence (“a
second escapeway is recommended, but not required, during the exploration or
development of an ore body”) dispenses with the two-escapeway requirement for mines
in exploration and development, but remains silent about a refuge requirement,
creating an ambiguity. Oral Arg. at 60-61. In light of this ambiguity, the
Secretary argues that the standard must be read as a whole and that doing so
reveals its general aim to provide miners with two means of survival during an
emergency. Therefore, a refuge chamber must be provided whenever there is only
one functional escapeway.

We
conclude that the standard is ambiguous. It does not directly state whether
mines are required to have a refuge chamber during the exploration or development
of an ore body when only one escapeway will be developed. It is unclear the
extent to which each sentence should be read in conjunction with one another or
how the general requirements of the first two sentences are impacted by the
third sentence. While not explicitly stating that a refuge chamber is required
in all situations where a mine has only one escapeway, the standard, by virtue
of its silence, leaves open the question of whether the refuge requirement
applies in such circumstances. See Takacs v. Hahn Auto. Corp., 246 F.3d
776, 782 (6th Cir. 2001) (citing Whetsel v. Network Prop. Servs., LLC,
246 F.3d 897 (7th Cir. 2001)).[4]

The
standard states that a refuge chamber is required when a second escapeway is
being developed, but it is ambiguous because it is silent as to whether a
refuge chamber is mandated when only one escapeway is anticipated during
exploration or development. See Sec’y of Labor v. Excel Mining, LLC, 334
F.3d 1, 10-11 (D.C. Cir. 2003) (finding regulatory language ambiguous in part
because the wording clearly mandated how respirable dust must be measured under
some circumstances, but was silent as to how it should be measured under
others); E. Associated Coal Corp., 27 FMSHRC 238, 242 (Mar. 2005)
(finding training regulation ambiguous because it did not explicitly address
the disputed issue of whether hazard training must include provisions of a
mine’s roof control plan). Thus, “[n]eedless to say, the language of this
section does not unambiguously resolve this dispute.” Excel Mining, 334
F.3d at 8.

We analyze the
text of the standard construing all parts together, interpreting the meaning
not from certain words in a single sentence but from the standard as a whole,
and viewing it in light of its general purpose. 2A Norman J. Singer, Sutherland
Statutory Construction § 46.5 (7th ed. 2014); Advanta USA, Inc. v. Chao,
350 F.3d 726, 728-29 (8th Cir. 2003) (applying rules of statutory construction
with equal force to discern an issue of regulatory construction). We agree with the Secretary that the third sentence
does not expressly rescind the refuge requirement contained in the first two
sentences. See Comm’n Oral Argument Tr. 34.[5]
Thus, our dissenting colleagues, in stating that the third sentence addresses
one-escapeway mines, slip op. at 12, are only
half right — the sentence addresses one-escapeway mines, but only as to the
escapeway requirement, not the refuge requirement.[6]

The
dissent’s assertion that the standard unequivocally provides only one instance
where a refuge is required, slip op. at 15, is inconsistent
with its critique of us for “miss[ing] or ignor[ing] the structure of section
57.11050 . . . [which] contains two subsections [including] [s]ubsection (b)
[which] deals with placement of refuges in two-escapeway mines.” Slip op. at 12. Section
57.11050(b) does indeed create a requirement for a method of refuge “for every
employee who cannot reach the surface from his working place through at least
two separate escapeways within a time limit of one hour when using the normal
exit method.” Thus, there are two circumstances where a refuge chamber
is required in an underground metal or non-metal mine. The second circumstance
occurs even though a mine has two separate escapeways. The fact that section
57.11050(b) requires a refuge chamber when a miner has to travel a long
distance to the surface even though two separate escapeways exist — in effect,
a third method of safety — supports the Secretary’s contention that the first
two sentences of section 57.11050(a) taken together mandate that miners always
have at least two ways to safety.

Moreover,
under the literal approach adopted by the dissent, the careful operator who acts
on the recommendation in the third sentence and plans to construct a second
escapeway during exploration and development would have to provide a refuge
while there was just one escapeway, while the less prudent operator who has no
plans to construct a second escapeway would have no requirement to provide a
refuge. This leads to an absurd result that we cannot sanction, providing an
additional reason why we reject the asserted “plain language” approach to
interpreting the standard. See Cent. Sand & Gravel Co., 23 FMSHRC
250, 254 (Mar. 2001); Rock of Ages Corp., 20 FMSHRC 106, 122 (Feb.
1998); R.G. Johnson Co., Inc. v. Apfel, 172 F.3d 890 (D.C. Cir. 1999)
(rejecting the district court’s literal reading of a statute because the
interpretation would frustrate the clear intent of Congress).

As
the D.C. Circuit noted in upholding the Secretary’s interpretation of a
preshift examination standard, “[t]he standard of review that governs
interpretive dueling before this court compels us to defer to the Secretary of
Labor’s interpretation of her own regulations unless it is plainly erroneous or
inconsistent with the regulations.” Sec’y of Labor v. Spartan Mining
Co., 415 F.3d 82, 83 (D.C. Cir. 2005). The
Secretary’s interpretation of a regulation is reasonable where it is “logically
consistent with the language of the regulation and . . . serves a permissible
regulatory function.” See Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327
(D.C. Cir. 1995) (citations omitted). In interpreting the meaning of regulatory
language, the Commission avoids focusing on an isolated phrase at the expense
of the overall intent of the regulators and the safety objectives that the
regulation is attempting to achieve. See Morton Int’l, Inc., 18 FMSHRC
533, 536 (Apr. 1996) (citations omitted) (“[R]egulations should be read as a
whole, giving comprehensive, harmonious meaning to all provisions.”); Dolese
Bros. Co., 16 FMSHRC 689, 693 (Apr. 1994) (“A safety standard ‘must be
interpreted so as to harmonize with and further . . . the objectives of’ the
Mine Act.”) (quoting Emery Mining Co. v. Sec’y of Labor, 744 F.2d 1411,
1414 (10th Cir. 1984)).

Upon
examination of the standard as a whole, it is reasonable to conclude that the
drafters intended for miners to have more than one method of survival in case
of an emergency. Section 57.11050(a) provides that mines in production shall have
at least two functional escapeways at all times. In circumstances where a miner
does not have ready access to more than one means of escape, an operator must
provide a refuge chamber. Choosing to avail itself of the option to operate
with only one escapeway during exploration or development, as the standard
permits, should not thereby permit the operator to also deprive miners of the
alternate means of survival provided by a refuge chamber.

Given
the importance the standard places upon providing duplicative means of survival
in an emergency, it makes sense that the same protections be extended to miners
who are engaged in exploration or development work, which carries with it many
of the same dangers as production mining. SMD’s interpretation, however, would
frustrate the purpose of the standard and deprive those miners of an alternate
means of safety were the sole escapeway to become impassable. In addition, SMD’s
interpretation would produce the anomalous result whereby operators who follow
the Secretary’s recommendation to install a second escapeway would have to
provide a refuge chamber during construction of that escapeway, while operators
who ignored the recommendation would be allowed to proceed with only one
escapeway and no refuge chamber.

The
operator argues that the Secretary’s interpretation is not reasonable because
it departs from agency precedent and was instituted without the benefit of
notice-and-comment rulemaking.[7]
According to SMD, prior to 2006 the Secretary followed an unwritten policy of
not requiring a refuge during exploration or development. The Judge, however, found
that the Secretary never held a prior interpretation of the standard and there
is not enough evidence in the record for us to disturb that finding. 34 FMSHRC
at 3204.[8]

Even
assuming, arguendo, such prior approach did exist, the Secretary’s
current interpretation would still warrant controlling deference. An agency’s
change in interpretation of a regulation does not require notice-and-comment
rulemaking under the APA. Perez v. Mortgage Bankers Ass’n, 135 S. Ct.
1199, 1206-07 (2015). SMD cannot reasonably claim to be unfairly surprised by
the policy change. Cf. Christopher v. SmithKline Beecham Corp., 132 S.
Ct. 2156, 2167 (2012) (deference is not appropriate when a change in agency
interpretation creates an unfair surprise). SMD was first put on notice of the
Secretary’s interpretation in 2006 when it received a citation alleging a
violation of section 57.11050(a). See Gov’t Ex. 9. Although the 2006 citation
was ultimately vacated by the Secretary, MSHA also published program
information bulletins (“PIBs”) in 2007 and 2009 clearly setting forth the
Secretary’s current interpretation. See Program Information Bulletin,
No. P07-04, at 1-2 (Feb. 28, 2007) (Gov’t Ex. 6); Program Information Bulletin,
No. P09-09, at 1-2 (Jun. 4, 2009) (Gov’t Ex. 7). Based upon this history, the
Secretary’s interpretation clearly represents a long standing, considered
exercise of the Secretary’s policy making authority. See Auer v. Robbins,
519 U.S. 452, 462 (1997) (deference to an agency interpretation of an ambiguous
regulation is warranted when it “reflect[s] the agency’s fair and considered
judgement on the matter in question”).

Accordingly,
the Secretary’s interpretation deserves controlling deference.

B.        S&S

A violation is S&S if, based on the particular
facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825
(Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission
further explained:

In order to establish that a violation of a mandatory
safety standard is significant and substantial under National Gypsum,
the Secretary of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard — that is, a measure of danger to
safety — contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria). An evaluation of the reasonable likelihood of injury should be made
assuming continued normal mining operations. See U.S. Steel Mining Co.,
7 FMSHRC 1125, 1130 (Aug. 1985).

SMD argues that the Secretary failed to proffer
sufficient evidence showing that the lack of a refuge chamber would be
reasonably likely to result in an injury. SMD reasons that because there was no
evidence of ground problems or equipment malfunction, the inspector’s
conclusion was purely speculative. Moreover, SMD asserts that extra safety
measures such as fire suppression systems, shotcrete, and emergency air and
water tubing further decrease the possibility of serious injury in case of an
emergency.

In terms of the Mathies test, the
Judge, after finding a violation of section 57.11050(a), concluded that “there
can be little doubt that the failure to provide a method of refuge created a
discrete safety hazard, that of miners having no alternative means of survival
in the event of an emergency that blocks the single escapeway.” 34 FMSHRC at
3206. The Judge then determined that the Secretary had established a reasonable
likelihood that the hazard contributed to will result in a serious injury,
based on the history of numerous diesel equipment fires and ground failures at
mines in the area. Id. at 3206-08.

Because this case involves a violation of an emergency
evacuation standard, our application of the Mathies test is controlled
by Cumberland Coal Res., LP, 33 FMSHRC 2357 (Oct. 2011), aff’d,
Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013). In Cumberland,
the Commission held that “[t]he hazard contributed to by defectively placed
lifelines necessarily involved consideration of an emergency situation.” 33 FMSHRC
at 2364. This is because “[e]vacuation standards are different from other mine
safety standards. They are intended to apply meaningfully only when an
emergency actually occurs.” Id. at 2367.

When applying the Mathies analysis with respect
to violations citing deficiencies with evacuation and shelter of miners in an
emergency, we consider the S&S nature of those violations within the
context of an emergency. Cumberland, 717 F.3d at 1027-28 (providing that
“assuming the existence of an emergency” when evaluating the S&S nature of
emergency safety measures is consistent with Mathies). The D.C. Circuit
made clear that the likelihood of an emergency actually occurring is irrelevant
to the Mathies inquiry, which focuses on the nature of the violation
itself. Id. at 1027 (citing Sec’y of Labor v. FMSHRC, 111 F.3d
913, 917 (D.C. Cir. 1997)). Cf. Spartan Mining Co., 35 FMSHRC 3505, 3509
(Dec. 2013) (Secretary need not prove the likelihood of an emergency when
evaluating whether escapeway violations were S&S).

In the context of a roof fall or equipment fire that
impedes passage through the mine’s sole escapeway, the lack of a refuge chamber
clearly contributes to the hazards posed by miners not having a safe location
to await rescue. Without the fresh air and water supply and protection from
fire and hazardous gases that a refuge chamber provides, there is a reasonable
likelihood that miners would suffer serious, potentially fatal injuries before
they can be rescued.[9]
Although other safety measures such as fire suppression systems and emergency
air and water tubing may also help prevent injury in an emergency, the
Commission and courts have soundly rejected the argument that additional safety
measures should preclude a finding of S&S. Cumberland, 33 FMSHRC at
2369 (citing Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir.
1995)).

Accordingly, the Judge’s application of the Mathies
test to conclude that the refuge violation was S&S is fully supported by the record.

III.

Conclusion

For the
foregoing reasons, we affirm the Judge’s finding of a violation and the S&S
determination.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

Commissioners Young and
Althen, dissenting:

This case rests
upon interpretation of the three brief and easily understood sentences that
comprise 30 C.F.R. § 57.11050(a). The majority attempts, with lawyerly
aplomb but no success, to rationalize the meaning of the sentences by ignoring
or mischaracterizing the plain language of the section. The majority also
erroneously affirms a meritless S&S determination made by an inexperienced
inspector who did not even enter the mine. We respectfully dissent.

I.

Discussion

A.        The Plain
Meaning Rule

This case turns upon interpretation of section
57.11050(a). The section consists of three sentences:

Every mine shall have two or more separate, properly
maintained escapeways to the surface from the lowest levels which are so
positioned that damage to one shall not lessen the effectiveness of the others.
A method of refuge shall be provided while a second opening to the surface is
being developed. A second escapeway is recommended, but not required, during
the exploration or development of an ore body.

In Christensen
v. Harris, 529 U.S. 576, 588 (2000), the Supreme Court reinforced the
primary rule of regulatory construction — the plain meaning of a statute or
regulation governs. The Court made it clear that neither an agency nor a
subsidiary tribunal may substitute its ad hoc judgment for the words of a
regulation, stating:

But Auer
deference is warranted only when the language of the regulation is ambiguous. The
regulation in this case, however, is not ambiguous—it is plainly permissive. To
defer to the agency’s position would be to permit the agency, under the guise
of interpreting a regulation, to create de facto a new regulation.
Because the regulation is not ambiguous on the issue of compelled compensatory
time, Auer deference is unwarranted.

Id.

Obviously,
the plain language rule applies with full force and effect to the Commission’s
interpretations of the Mine Act, regardless of the interpretation urged upon it
by the Secretary. See Vulcan Constr. Materials, L.P. v. FMSHRC, 700
F.3d 297, 312 (7th Cir. 2012) (“Because we have determined that the plain
meaning of § 815(c) requires that we reverse the Commission, we do not need to
reach the question of the proper deference owed to the Secretary’s
interpretation of the statute.”); Performance Coal Co. v. FMSHRC, 642
F.3d 234, 238 (D.C. Cir. 2011) (“[C]ourts must presume that a legislature says
in a statute what it means and means in a statute what it says there”) (quoting
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992)). The same
holds true with respect to the regulations implementing the Mine Act. See
Island Creek Coal Co., 20 FMSHRC 14, 18-19 (Jan. 1998) (citing Dyer
v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987)); Morton Int’l, Inc.,
18 FMSHRC 533, 538–39 (Apr. 1996) (stating that if violation of regulation
subjects private parties to criminal or civil sanctions, a regulation cannot be
construed to mean what agency intended but did not adequately express) (quoting
Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982)
(quoting Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976))).

B.        Section 57.11050(a) does not require refuge
chambers in one-escapeway exploration projects.

Section
57.11050(a) follows classic rules of legal draftsmanship. The first sentence
creates a general rule. The following two sentences establish distinct and
disconnected exceptions to that general rule, based on a mine’s status. Nothing
in the language or structure of the section or, for that matter, in the history
of the section’s promulgation and enforcement, indicates any interrelationship
between the separate exceptions that follow the expression of the general rule.

The
first sentence of section 57.11050(a) creates an obligation for underground
mines to have two escapeways: “Every mine shall have two or more separate,
properly maintained escapeways to the surface from the lowest levels which are
so positioned that damage to one shall not lessen the effectiveness of the
others.” 30 C.F.R. § 57.11050(a). Obviously, this sentence does not consider,
let alone require, refuge chambers in any mine. The following two sentences
create separate exceptions to the two-escapeway obligation. Only the second
sentence requires refuge chambers.

The
second sentence creates a narrow, time-limited exception to the two-escapeway
requirement — namely that “[a] method of refuge shall be provided while a
second opening to the surface is being developed.” 30 C.F.R. § 57.11050(a). Recognizing
that there cannot be two escapeways from the very opening of a mine, the second
sentence exempts operators from the requirement for a second escapeway while
the second escapeway is constructed. It conditions that exception on the
provision of a refuge chamber during the period of construction. This exception
is limited to the period necessary for construction of the second escapeway. The
sentence addresses one, and only one, circumstance — the construction of a
second escapeway.

The third sentence creates a complete exception from
the requirement for two escapeways, but is limited to a narrow class of small
and evanescent mines: “A second escapeway is recommended, but not required,
during the exploration or development of an ore body.” 30 C.F.R. § 57.11050(a).
In creating this exception, MSHA did not mention, let alone establish, a
requirement to use a refuge chamber in exploration mines.

The
majority misses or ignores the structure of
section 57.11050. The section is entitled “Escapeways and refuges.” It contains
two subsections. Subsection (a), which is at issue here, deals with escapeways.
Placement of refuge chambers is not the subject matter of subsection (a).
Subsection (b) deals with placement of refuges in two-escapeway mines. The
second sentence of subsection (a) requires a refuge chamber as the “second”
means of protection while the second escapeway is constructed in mines required
to have two escapeways.

The
incongruity of asserting that the second sentence of section 57.11050(a)
requires a refuge in a permissible one-escapeway exploration project is obvious
upon the briefest reflection. The third sentence plainly states that only one
escapeway is required in an exploration mine. The second sentence requires the
provision of a refuge chamber “while a second opening to the surface is being
developed.” 30 C.F.R. § 57.11050(a). It distorts all meaning, and defies
commonsense, to read the second sentence to require a refuge chamber where a
second escapeway is neither required nor under construction.

Reading the
second sentence to mandate a refuge chamber in an exploration mine would mean
the sentence requires a refuge chamber if one set of circumstances exists
(ongoing construction of a second escapeway) and also requires a refuge chamber
if that same set of circumstances does not exist (no ongoing construction of a
second escapeway in an exploration mine). Thus, the majority expands a brief,
clear, and narrow exception by permitting the Secretary to add a wholly new
requirement. In effect, it amends the second sentence to read, “A method of
refuge shall be provided while a second opening to the surface is being
developed and also shall be provided in an exploration mine with one
escapeway.”

Moreover, the
exception in the second sentence is limited by the time necessary to construct
a second escapeway. Such time limitation would be irrelevant to a one-escapeway
exploration project where no second escapeway is being or will be constructed
unless the exploration mine moves to production. At that point, the refuge
chamber and second escapeway would be mandatory.

The majority
fails to attempt to reconcile its expansion of the second sentence with the
words of the regulation. The majority’s rationale is a stand of twigs too weak
to survive the gentlest breeze: an argument that the regulation is “silent” and,
therefore, amenable to the majority’s policy preference and two subsidiary
arguments — resort to regulatory history that actually works directly against
them and a policy argument based only upon their personal wishes as to what the
section should provide.

With nothing in the language of the section or
regulatory history upon which to rely, the majority cites Takacs v. Hahn
Automotive Corp., 246 F.3d 776, 782 (6th Cir. 2001), which in turn cites Whetsel
v. Network Property Services, LLC, 246 F.3d 897 (7th Cir. 2001), for the
proposition that section 57.11050 is “silent” with respect to one-escapeway
exploration mines, and, therefore, ambiguous.

Neither Takacs
nor Whetsel rests upon “silence.” In Takacs and Whetsel,
the issue was whether certain deductions from the plaintiffs’ pay caused the
employees not to be exempt employees for overtime purposes under the FLSA and
relevant Department of Labor regulations. The case concerned the “window of
correction” test to determine whether the “salary basis” requirement of
regulations promulgated under the Fair Labor Standards Act (“FLSA”) properly
applied to certain specific employees. They involved the issue of whether those
courts should defer to the Secretary’s interpretation of the regulation. In Whetsel,
the employer cited provisions of the regulation that it asserted implied the
correctness of its position under the principle of expressio unius est
exclusio alterius. The court found the principle to have “reduced force” in
the context of interpreting regulations. 246 F.3d at 902. It was in rejecting
use of the provisions cited by the plaintiff to imply the interpretation
asserted by the plaintiff that the court noted the failure of the regulation to
accept “explicitly” the plaintiff’s interpretation. Id. at 901. The
cases do not involve “silence” but rather the court’s unwillingness to imply a
proffered interpretation from other provisions of the regulation under the
circumstances of the cases.

The
Unites States Court of Appeals for the D.C. Circuit has reversed the Commission
for hearing “sounds in the silence” despite plain statutory language. Sec’y
of Labor v. Twentymile Coal Co., 456 F.3d 151, 158 (D.C. Cir. 2006). In
this case, there is no “silence” — no need for any implication. The regulation
explains clearly and unequivocally when a refuge is required. The regulation
simply does not speak the words the majority wishes to hear. Ironically, the
majority’s hearing impairment occurs just a month after the entire Commission
correctly applied the plain meaning rule to reject a similar “silence” argument
by the Secretary. Big Ridge Inc., 37 FMSHRC ___, Nos. LAKE 2011-699-R, et al. (Sept. 9, 2015).[10] Notably, Big Ridge involved a section of the
Mine Act, the language of which is not subject to clarification by the
Secretary. Here, we consider a regulation that the Secretary could have
modified through rulemaking if he decided to change the obligations imposed upon
operators.[11]

In fact, by
asserting that the second sentence of section 57.11050(a) is “silent” with
respect to refuge chambers in one-escapeway exploration mines, the majority
effectively concedes that the second sentence simply does not address one-escapeway
mines. However, instead of concluding that because the next sentence addresses
one-escapeway mines, such silence intentionally omitted one-escapeway mines
from the ambit of the refuge chamber requirement, the majority acquiesces to
the Secretary’s mission of amending the regulation through litigation before
the Commission.

The only
argument by the majority even possibly drawn from the words of the section is
the claim that the third sentence does not “expressly rescind” a refuge
requirement they contend is “contained in the first two sentences.” Slip op. at

4. The
   irresoluble problem for that statement is that the first “two” sentences of the
   section do not create a requirement for a refuge chamber. Only the second
   sentence creates an obligation for a refuge chamber, and the requirement could
   not be clearer. A refuge chamber is required “while a second opening to the
   surface is being developed.” 30 C.F.R. § 57.11050(a). As is obvious to all but
   the majority, neither the first nor the second sentence creates a requirement
   for a refuge chamber in a one-escapeway mine. Simply put, there is no
   requirement for a refuge chamber in a one-escapeway mine to “rescind.”[12]

The
“silence” argument by the majority essentially is a contention that refuge
chambers are required for one-escapeway mines because the third sentence that
expressly permits one-escapeway exploration and development mines does not
expressly state that refuges are not required. To the majority, the
regulation’s plain requirement for a refuge chamber in one circumstance — “when
a second escapeway is being developed” — means that the separate third sentence
requires refuge chambers unless such sentence expressly provides that the duty
is not required. Slip op. at 4-6. Under this contorted logic, the third
sentence that says nothing at all about refuge chambers actually means a refuge
chamber is required unless the regulation had gone on to say, “by the way, a
refuge chamber is not required.” The majority assiduously ignores, indeed flees
from, acknowledging that the regulation plainly and
unequivocally provides one specific circumstance when a refuge chamber is
required. Again, that requirement is “while opening to the surface is being
developed.” 30 C.F.R. § 57.11050(a). Because the language of the section is
plain, we need not deal with the majority’s subsidiary arguments. The plain
language governs. However, as seen below, the majority’s subsidiary arguments
serve only to strengthen the clear intent of the plain language.

The majority
cites to regulatory history. Slip op. at 4 n.5. The regulatory
history that exists, however, actually supports the plain language of the
regulation demolishing the majority’s reconstruction of the section based upon
a “silence” theory.

The majority
observes that, as proposed in 1971, the section required two escapeways in all
mines except while a second escapeway was being constructed. They then assert
the requirement for a refuge chamber for two-escapeway mines in 1971 must apply
to one-escapeway mines permitted by the final regulations adopted six years
later. In fact, promulgation of the exception in the final regulation to allow
exploration and development mines to have only one escapeway is directly
contrary to the majority’s theory.

The promulgated
regulation changed the proposed requirement that all mines have two escapeways
in order to allow one-escapeway mines in exploration and development mines. When
the agency made that change, it certainly was aware of the brief, clear
requirement of the immediately preceding sentence providing for a refuge
chamber while the operator constructs the second escapeway in a two-escapeway
mine. Yet, the drafters omitted any requirement for a refuge chamber in the
newly created category of one-escapeway mines. Certainly, if the agency desired
to require a refuge in one-escapeway mines, it would have included such a requirement
in adding the right for there to be one escapeway in exploration mines. Thus,
the addition of an exception from the two-escapeway requirement without requiring
a refuge chamber works against the argument that a requirement that applies
only to two-escapeway mines was intended to extend to the new class of
one-escapeway mines.

Finally,
rather than making any additional legal argument, the majority turns to an unsupported
hypothetical. For its hypothetical, the majority creates an operator that
constructs a second escapeway from the very outset of a short-lived exploration
mine. They call it the “careful” operator. Creation of this hypothetical
“careful” operator allows the majority to dispense with any analysis of the
clear language of the regulation without any record support. They then assert
that the regulation would be unfair to their careful operator that is doing
more than the clear application of the
law, as written, would require. Thus,
they characterize as an “absurd” result
the typical and regular operation of the law through which operators that comply
with the regulation’s explicit terms are not punished regardless of whether
other purely hypothetical operators do more than the law requires. In fact, of course, the majority seeks to punish the
law-abiding operator for failing to act in accordance with their policy
desires.

Apart
from the logical fallacy inherent in its argument that where one does more than
required, all must do more than required, the majority, consciously or not,
chooses to view exploration mining as a “one size fits all” enterprise in which
an operator of an exploration mine must immediately insert a refuge chamber at
the mouth of the mine even though the entire mine will be short-lived and may
not extend more than a few hundred feet with a total travel time of a few
minutes.[13]
In the real world, of course, exploration mines are not one size fits all. An
exploration mine may be undertaken to confirm the likelihood of economically
viable deposits or they may be prospecting ventures aimed at less likely
targets for production mining. Exploration mines may prove or disprove the
economic viability of opening a production mine at very different points in the
exploration process. As exploration mining proceeds, points will arise at which
the exploration is negative or positive for production mining.[14]

Given that MSHA
defines exploration mining as narrowly as possible,[15]
the absence of any bright-line test, and the short-term nature of any
exploration, the exploration operator must be alert to whether the exploration
mine will lead to production. With the commencement of production, the operator
must begin to establish a second escapeway and insert a refuge chamber. However,
the section clearly does not require a refuge chamber unless and until the operator elects to commence
production, which triggers the requirement to begin construction of a second escapeway. It is those two requirements —
commencing construction of a second escapeway and insertion of a refuge chamber
— that go together by virtue of the first and second sentences.[16]

We may gain
insight into the regulatory decision not to require refuge chambers in
exploration mines that are evanescent by their very nature by examining other
regulations. For example, the exploration
mine in this case was nearly completed. Tr.
126-27. At this point of completion, the
face was approximately 1,000 feet from the outside environment (Tr. 85), the
entry was 16 feet by 16 feet (Tr. 122), and it was a 5 to 10 minute walk from
the face to the outside world (Tr. 135). In turn, subsection (b) of section 57.11050
requires that, if miners cannot reach the surface from their workplace through the
two required escapeways within one hour, refuge chambers must be within 30
minutes (not 10 minutes) from the miners’ workplace.[17]
30 C.F.R. § 57.11050(a). Similarly, section 75.1506(c)(1), requiring refuge
chambers in underground coal mines (often with significant seam height and
terrain impediments), provides in part that refuge chambers must be within
1,000 feet of the nearest working face. 30
C.F.R.

§ 75.1506(c)(1). Therefore, those sections permit placement of refuge
chambers further by time and/or distance from the face than the time or
distance necessary to exit this exploration mine. Thus, the majority would find
that this section requires more of short-lived, minimally-staffed exploration
mines than are required of large underground production mines.[18]     

In
this decision, the majority abdicates the Commission’s responsibility to apply
the regulations as written. Through such action, the critical right of the
public to notice of and opportunity to comment upon the requirements of binding
rules backed by punitive sanctions suffers irreparable harm. A society of fair
and transparent rulemaking is grievously injured if courts, commissions, or
agencies may change rules simply by declaring a rule ”silent” simply because it
does not comport to the desired policy outcome, and, therefore, is amenable to
whatever interpretation the enforcement or adjudicatory authority wishes to
impose by fiat.[19]

In sum, the
majority’s arguments display an outcome-driven determination rather than
dispassionate regulatory analysis. See slip op. at 4-6.[20] For our part, we are
left, first and last, in the place where all regulatory analysis must begin —
the plain language of the regulation.

C.        The Secretary’s
position is not entitled to deference.

If
deference were a consideration in this case, the Judge and the majority err in
failing to follow fundamental precepts of administrative law and regulatory
interpretation in obeisance to “deference.” For example, in Moore v. Hannon
Food Service, Inc., 317 F.3d 489 (5th Cir. 2003), the Fifth Circuit
demonstrates that the Seventh Circuit in Whetsel, supra,
improperly failed to focus upon the plain language of the regulation as the
starting point for its “ambiguity” analysis. Instead, the Whetsel court
started with the agency’s interpretation and then applied it to the regulation.
As the Fifth Circuit states, this mode of interpretation puts the cart before
the horse:

Under Christensen, this
approach is backwards. The presence or lack of ambiguity in a regulation should
be determined without reference to proposed interpretations; otherwise, a
regulation will be considered “ambiguous” merely because its authors did not
have the forethought expressly to contradict any creative contortion that may
later be constructed to expand or prune its scope.

317 F.3d at 497.

Even
if we were to find the regulation to be ambiguous, the Commission must
determine whether the Secretary has exercised his fair and considered judgment
on the issue. Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156,
2166-67 (2012). The Secretary’s interpretation is impermissible under this
standard.

The Secretary’s
interpretation would fail because it cannot stand as the considered position of
the agency. We do not blindly defer to agency decisions simply because they are
agency decisions, and where the Secretary has not exercised his fair and
considered judgment, his interpretation does not deserve controlling deference.
Id. See also Paralyzed Veterans of Am. v. D.C. Arena L.P., 117
F.3d 579, 584, 588 (D.C. Cir. 1997) (stating that an agency cannot “promulgate
mush” and then ask for deference to clarify regulations), abrogated on other
grounds, Perez v. Mortgage Bankers Ass’n, 575 U.S. ___, 135 S. Ct. 1199,
1207 (2015).[21]

At
the time this standard was promulgated, the considered view of the agency did
not deem necessary a requirement for either two escapeways or an escapeway and
a refuge at all times in an exploration mine, even though that could have been
easily expressed. Unwinding that policy choice should require an equally
thoughtful and deliberative process. Evidence of such care is entirely absent
from the administrative record.[22]

The
factual context of this case also highlights the formless nature of the
supposed “rule” and the near-total absence of the analytical underpinnings
required to support the asserted exercise of the agency’s reasoned and
considered judgment. Only by allowing a further over-reach by the agency do we
learn when the “duty” to provide a shelter arises, i.e. at or before the second
crosscut is made. Accepting the “rule” as such requires us to permit the agency
to impose another specific regulatory requirement setting a limit at the
second crosscut without the benefit of rulemaking. We should not be party to
this abrogation of the administrative process.  

D.        The S&S
designation is unsupported by substantial evidence.

We also dissent
from the majority’s holding that the violation in this case was S&S. There
is no evidentiary or legal basis for holding that the absence of a refuge chamber
at this stage of the mine’s development was of such a nature that it made it
reasonably likely to result in an event causing death or serious bodily injury.
If anything, a careful analysis of the S&S issue only underscores the unreasonableness
of the Secretary’s construction of the standard to find a violation here.

Cumberland did clarify that standards designed to protect miners
in the event of an emergency must consider such emergency as part of the operative
context for the law. Cumberland Coal Res., LP, 33 FMSHRC 2357, 2364-65
(Oct. 2011), aff’d, 717 F.3d 1020 (D.C. Cir. 2013). Following Cumberland
we applied a full Mathies analysis in a case, even though the
parties stipulated that an emergency requiring the use of escapeways would be
reasonably likely to result in serious injuries. Spartan Mining Co.¸ 35
FMSHRC 3505, 3507, 3509 (Dec. 2013) (citing Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984)). Here, the inspector and, consequently, the Judge merely
assumed that the absence of a refuge chamber was reasonably likely to result in
a reasonably serious injury. The Judge failed to apply the Mathies test
to the facts of this case.

The circumstances
in this case cannot support an S&S finding under a principled application
of the Mathies test. First, the inspector had no underground mining
experience prior to becoming an inspector. Tr. 42. Second, he made no
underground examinations at the mine prior to issuing the citation. Tr. 27, 50.
In fact, he had never been to the mine before. Tr. 43. The inspector also
testified that he did not take the mine’s ventilation into account in writing
an S&S violation. Tr. 55.[23]

The Commission
has held that an S&S determination may not be based on purely speculative
conjecture about a potential injury that “could” occur. Texasgulf, Inc., 10 FMSHRC 498, 500-01 (Apr. 1988). Despite this
well-settled law, the majority approves the S&S conclusions reached by a relatively
inexperienced inspector regarding a mine he had never visited before and
circumstances in an underground environment he had not seen, concerning
possible hazards he had not considered.

The evidence is
thus insubstantial and vanishingly weak in its purported support of the
conclusion reached. While the Secretary posits that the violation is S&S
because a refuge chamber would not have been available in the event of an
emergency, the Secretary can point to no clear regulatory standard for determining
when and where the refuge would be required in the mine. Nor does
the majority articulate a particular point at which the refuge would have been
necessary and practical in this mine. It is obvious that the obligation is
neither feasible nor useful when the earth is first disturbed and not apparent
at all at what point the operator’s duty would arise under the majority’s view.
At what point, by time or distance, would the refuge chamber be required — 100
feet or 1 minute, 300 feet or 3 minutes, 600 feet or 6 minutes, etc.?

Thus, the
Secretary’s position is facially arbitrary and unreasonable. It is not grounded
on any facts particular to this mine or even those applicable generally to
mines during their early development. Indeed, in this very case, it has been
suggested that the operator would not have been in violation had it stated that
it intended to install the refuge chamber at some point in the near future
during the development process. Surely, the Secretary would not suggest that
actions in compliance with the law and regulations nonetheless contribute
significantly and substantially to the cause and effect of a hazard likely to
cause death or serious injury to miners. See Mathies at 3; Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 827 (Apr. 1981) (“[A] violation
‘significantly and substantially’ contributes to the cause and effect of a
hazard if the violation could be a major cause of a danger to safety and
health”).

II.

Conclusion

Perhaps it is
inevitable that federal agencies imbued with the hubris of executive authority
will seek to impose regulatory obligations without following the dictates of
law. However, the only function of an adjudicatory body is to enforce compliance
with the law. Here, the Commission affirms a result-driven policy decision thereby
permitting MSHA to create a new regulation without rulemaking. Neither MSHA nor
the Commission will afford affected persons and members of the public a chance
to comment on this fundamental change. We respectfully dissent.

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

[1] The S&S terminology is taken from section
104(d)(1) of the Act, 30 U.S.C.      

§ 814(d)(1), 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.”

[2] Section 57.11050(a) requires that:

Every mine shall have two or more separate, properly
maintained escapeways to the surface from the lowest levels which are so
positioned that damage to one shall not lessen the effectiveness of the others.
A method of refuge shall be provided while a second opening to the surface is
being developed. A second escapeway is recommended, but not required, during
the exploration or development of an ore body.

[3] Prior to the hearing, the Judge granted the
Secretary’s motion to plead a violation of 30 C.F.R. § 57.11050(a) in the
alternative. On appeal, the parties do not rely on the applicability of
subsection (b). As a result, we need not address the applicability of
subsection (b) in this decision. 

[4] We reject the dissent’s argument that the Takacs
and Whetsel cases do not include the concept that a regulation’s
ambiguity may be shown by its silence as to a particular set of factual
circumstances. Slip Op. at 13. Both cases
involved claims for overtime compensation under the Fair Labor Standards Act
(“FLSA”). In both cases, the respective employer-defendants had made deductions
from employees’ pay which were inconsistent with the contention that the
employees were “exempt employees” under FLSA, but had changed that policy and
restored the deductions. The employers thus contended that they had not lost
the ability to characterize the employees as exempt under FLSA on the basis of
the “window of correction” principle contained in 29 C.F.R. § 541.118(a)(6). The
Secretary of Labor filed amicus briefs in both cases, arguing that the “window
of correction” regulation was ambiguous, and seeking deference for his
interpretation that the employers’ actions were not covered by the “window of
correction” principle. Agreeing with the Secretary, the 7th Circuit
in Whetsel found the regulation to be ambiguous, stating: “We rely on
the fact that the regulation does not explicitly state that it is
available to correct a policy or pattern of deductions, thus leaving open
the question of whether it applies to those circumstances.” 246 F. 3d at
901 (emphasis added). The 6th Circuit in Takacs explicitly
relied on this statement by the Whetsel court. 246 F. 3d at 782. Similarly,
we find that 30 C.F.R. § 11050(a) is silent, and thus ambiguous, as to the
issue of whether refuge chambers are required in exploration or development
mines with only one escapeway.

[5] The Secretary’s view
that the first two sentences should be read together, with the third sentence
only “taking back” the two-escapeway requirement during exploration and
development but not “taking back” the refuge requirement, is supported by the
regulatory history. An earlier version of the first sentence, which was
identical in all pertinent respects to the first sentence of the current
standard, was proposed on June 24, 1970 to replace the then-existing standard.
The proposed standard read:

Every mine shall have two
separate properly maintained escapeways to the surface which are so positioned
that damage to one shall not lessen the effectiveness of the other.

Health and Safety
Standards for Metal and Nonmetallic Underground Mines, 35 Fed. Reg. 10,305,
10,307 (proposed June 24, 1970) (to be codified at 30 C.F.R. pt. 57). By its
terms this proposal provided that miners always have two ways of escape.

On
December 17, 1971 the Secretary revised the proposed standard by adding a
sentence which was identical to the second sentence in the current standard.
The revised proposal read:

Every mine shall have two
separate properly maintained escapeways to the surface which are so positioned
that damage to one shall not lessen the effectiveness of the other. A method of
refuge shall be provided while a second opening to the surface is being
developed.

Health and Safety
Standards for Metal and Nonmetallic Underground Mines, 36 Fed. Reg. 24,044,
24,045 (proposed Dec. 17, 1971) (to be codified at 30 C.F.R. pt. 57).

Thus, when
the second sentence was originally drafted, the proposal retained the
requirement that all mines have two escapeways. The second sentence required
that a refuge be provided in the one instance where it was contemplated that
only one escapeway would exist in the mine, i.e., while the second escapeway
was being developed. This regulatory history supports the Secretary’s argument
that the first two sentences taken together mandate that miners always have two
ways to safety.

It
was not until nearly six years later that the third sentence was added to what
became the final rule:

A second escapeway is
recommended, but not required, during the exploration or development of an ore
body.

New and Revised Health
and Safety Standards for Metal and Nonmetal Mines, 42 Fed. Reg. 57,038, 57,043
(Oct. 31, 1977) (to be codified at 30 C.F.R. pts. 55-57).

This
sentence provides for an exception to the two-escapeway requirement during
exploration or development work. With respect to miner safety it creates the
same circumstance contemplated in sentence two, i.e., the existence of only one
escapeway in the mine. As the Secretary correctly notes, despite creating the
same circumstance, sentence three is silent as to whether a refuge is required.

[6] The dissent points to our recent decision in Big
Ridge, Inc., 37 FMSHRC ___, Nos. LAKE 2011-699-R et al. (Sept. 9, 2015), as
a model for determining whether regulatory language is ambiguous. Big Ridge involved
the interpretation of section 103(j) of the Mine Act, 30 U.S.C. § 813(j), which
sets forth the responsibilities of an operator and the Secretary after a mine
accident. In that case, we held that section 103(j) of the Mine Act was clear
and unambiguous because Congress had directly spoken to the issue at hand.

Section
103(j) explicitly sets forth separate obligations for the operator and
authorization for the Secretary in two distinct scenarios: in the event of an
accident (where an operator must notify the Secretary and take measures to
prevent the destruction of relevant evidence) and in the event of an accident
in which rescue and recovery work is necessary (where the Secretary is
authorized to issue a 103(j) control order when he deems it appropriate, to
protect individuals and supervise and direct rescue and recovery activities). We
thus relied on the plain language of the statute to reject the Secretary’s
contention that he was authorized to issue a 103(j) control order in the
absence of rescue and recovery work. Big Ridge, Inc., 37 FMSHRC at ___,
slip op. at 5. However, such clarity is not found in section 57.11050(a), where
the obligations of the operator during exploration and development are muddled
because of the question of how the regulation’s third sentence modifies the
obligations imposed by the first and second sentences.

[7] The Administrative Procedure Act (“APA”) does not
require notice-and-comment rulemaking when an agency issues interpretive rules
intended to advise the public of the agency’s construction of the rules which
it administers. See, e.g., Shalala v. Guernsey Mem’l Hosp., 514
U.S. 87, 99 (1995). See also Perez v. Mortgage Bankers Ass’n, 135 S. Ct.
1199, 1206-07 (2015) (finding that notice-and-comment rulemaking is not
required even when an agency changes its interpretation of one of the
regulations it enforces).

[8] We note that in the incident described infra,
footnote 9, MSHA required
refuge chambers to be used in a mine being developed, which had only one
escapeway, in 1978, after the present language of the regulation had become
effective.

[9] MSHA has
documented an incident where, in an underground zinc mine, a diesel-powered
front end loader caught fire, blocking a 15-degree incline to the mine portal. The
mine was under development and had only one escapeway. Twenty-nine trapped
miners retreated to rescue chambers, where they waited more than five hours
until a rescue team reached them and brought them out safely. MSHA, Mine
Safety and Health Magazine, April-May 1978, page 19.

[10]
In Big Ridge, the Commission rejected an argument by the Secretary that
the first sentence of section 103(j) of the Mine Act is silent on the right of
the Secretary to issue orders for the preservation of evidence and thus
ambiguous. The Commission correctly applied the plain language of the section. 37
FMSHRC at ___, slip op. at 5.

[11]
Program Information Bulletin No. P07-04, at 1-2 (Feb. 28, 2007) (Gov’t Ex. 6);
Program Information Bulletin No. P09-09, at 1-2 (Jun. 4, 2009) (Gov’t Ex. 7)
are classic examples of an attempt to make a de facto change of the substance
of the rule without rulemaking.

[12] The majority seems to fault us for the Secretary’s
drafting, stating that in failing to read into the standard language what the
Secretary didn’t include, we “are only
half right – the sentence addresses one-escapeway mines, but only as to the
escapeway requirement, not the refuge requirement.” This is circular. Without
the assumption of a “refuge requirement” by the majority, there is none.

[13]
The majority seems not to understand that mineral exploration and development
depends, inter alia, upon geologic, technical, environmental, and
economic considerations. A plethora of variables enters into the undertaking of
mineral exploration.

[14]
We further note that making the “careful” operator the new legal benchmark
would perversely discourage more careful practices, which would only be seen by
operators as a toehold for more onerous regulation as requirements are
ratcheted up. As they say, no good deed goes unpunished.

[15]
MSHA’s Program Policy Manual states:

In
this connection, “exploration or development of an ore body” should be used in
its narrowest sense, i.e., while an ore body is being initially developed,
or development or exploration work is being conducted as an extension of a
currently producing mine.

IV MSHA, U.S. Dept. of Labor, Program Policy
Manual, 57.11050 (2003) (emphasis added).

[16] We note that, although there is scant regulatory
history, the history of the period demonstrates a likely scenario for the
exception to allow one-escapeway exploration mines — a desire to encourage
mineral exploration and development within the United States. We need cite no
authority for the common knowledge that in the early 1970s there was a
worldwide copper shortage causing many homebuilders to switch from copper
wiring to aluminum — a change that would be reflected in house fires in only a
few years. More importantly and just as well known, in May 1973, oil-exporting
nations embargoed oil shipments. The impact upon the United States was
immediate and dramatic. Prices for petroleum-based products — an almost
unlimited array of products from gasoline to paint to all plastic products —
skyrocketed. These developments naturally created a demand for domestic
American production of raw materials. In this context, encouragement of
exploration mining is entirely understandable.

[17]
In attempting to deal with section 57.11050(b), the majority does not address
the point of our reference to this subsection. The point, of course, is that,
in drafting the final regulation in 1978, the drafters decided 30 minutes
provided an adequately close refuge. Thus, the regulation permits refuge
chambers to be 30 minutes from the workplace in production mines while in this,
and other short-lived exploration mines, the outdoor environment (10 minutes
away) is closer than required for refuges in mines that require the presence of
two escapeways.

[18]
Moreover, under section 57.11050(a),
there would be no requirement in the regulation for the position of the
placement of refuges in one-escapeway mines. Any placement would be less than
30 minutes from the face. Therefore, despite the inspector’s protestation,
placement of a refuge just within the outside opening would comply with section
57.11050(a) and (b). In fact, there would be a host of unanswered questions. When
would the refuge chamber be required in a one-escapeway exploration mine? When
the entry was 100 feet and less than a minute to the outside? When the entry
was 500 feet and 2.5 to 5 minutes from the outside? Finally, recognizing the
vital importance of the exploration and development of metal and nonmetal
resources, the promulgating Secretary may have decided not to require refuges
in exploration mines that are transitory and rapidly either abandoned or
converted to production mines, at which point the first two sentences of the
section would then apply.

[19] Rulemaking serves the critical interests of
transparency and public participation in the creation of binding obligations. MSHA
has long had an opportunity to propose requiring installation of refuge
chambers in exploration mines by amendment of the regulation rather than taking
the path of attempting to force refuge chambers upon one-escapeway mines
through an untenable, invented interpretation. MSHA’s failure to take such
action notwithstanding the clarity of section 57.11050(a) is another factor in
rejecting the Secretary’s tortured interpretation of the regulation. See
Northshore Mining Co. v. Sec’y of Labor, 709 F.3d 706, 711 (8th Cir. 2013)
(“MSHA has not changed the regulation even when it
had the opportunity to do so.”).

[20] While
the majority claims that MSHA “has documented” a situation where miners in a
development mine with a single escapeway were able to use a refuge chamber, slip op. at 10 n.9, this supposed historical reference is legally irrelevant.
The “documentation” is included in a news item in a publication that MSHA did
not even rely on in these proceedings. It is not part of the administrative
record before us and we therefore may not consider it. See 30 U.S.C.

§ 823(d)(2)(C). Furthermore, the news item,
even if accurate, indicates that 29 miners were underground at the mine. This
is radically different from the circumstances before us. The news item does not
state whether MSHA required the chamber due to the extensive nature of the
development or whether the operator voluntarily installed it. Of course, even were there some regulatory history
consonant with the majority’s desire to impose a refuge chamber requirement on
one-escapeway exploration mines, it could not overcome the plain language of
the section. A regulation cannot be construed to mean what an agency intended but did not express. Performance
Coal, 642 F.3d at 238.

[21] In Perez v. Mortgage Bankers Association, the
Supreme Court reversed the requirement, articulated in Paralyzed Veterans,
that interpretive rules that substantively alter a regulation’s prior,
definitive meaning must proceed through notice-and-comment rulemaking. The
Supreme Court’s unanimous judgment disapproved of the D.C. Circuit’s decision
as inconsistent with the Court’s “straightforward reading of the APA.” 135 S.
Ct. at 1207. However, nothing in the Court’s opinion undercuts the D.C.
Circuit’s disapproval of untrammeled deference. Indeed, Justice Scalia and
Justice Thomas expressly questioned the application of Auer deference
and its underpinnings in Seminole Rock. Id. at 1211-13 (Scalia,
J., concurring); Id. at 1213-25 (Thomas, J., concurring). Justice Alito
suggested he would consider these views in a more appropriate context, where
concerns about “the aggrandizement of the power of administrative agencies”
enabled by Seminole Rock and its progeny “may be explored through full briefing
and argument.” Id. at 1210-11 (Alito, J., concurring in part). Thus, a
significant plurality on the Court is open to questioning Auer due to
overreaching typified by the Secretary in this case.

[22] The majority and the Judge below seem untroubled by
practical aspects of mining, especially in an exploration context. We should
draw a reasonable inference that the Secretary determined at the time the rule
was drafted that the advice of its advisory committee was helpful on this
question and that the Secretary accordingly determined that the recommended
exception was consistent with the statute.

[23] The Judge generally precluded cross-examination about
the specific conditions the inspector may have considered in determining that
the violation was S&S. Tr. 52-55. However, the Secretary bears the burden
of proof on this issue, and it is conclusively established that the inspector
did not observe any conditions underground at a mine he had never visited
before determining that this violation was S&S.