Emery Mining Corporation

Plain-English summary

Emery Mining Corporation operated the Deer Creek underground coal mine in Utah. MSHA cited the company after finding four roof bolts without bearing plates and determined that the violation of 30 C.F.R. § 75.200 was significant and substantial and caused by unwarrantable failure. The Commission held that unwarrantable failure requires aggravated conduct that is more than ordinary negligence, and found that Emery's extensive roof-support measures did not meet that standard. It reversed the unwarrantable-failure finding and modified the section 104(d)(1) citation to a section 104(a) citation.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.200
• Outcome: The violation remained subject to a citation, but the unwarrantable-failure finding was reversed and the citation was modified from section 104(d)(1) to section 104(a).
• Key point: Unwarrantable failure means aggravated conduct that is more than ordinary negligence.

Full text (FMSHRC public release)

CCASE:
EMERY MINING V. MSHA
DDATE:
19871211
TTEXT:

              FMSHRC-WDC
            December 11, 1987

EMERY MINING CORPORATION

v.              Docket No. WEST 86-35-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

               DECISION

BY THE COMMISSION:

This proceeding arising under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)("Mine Act"),
requires the Commission to determine the meaning of the term
"unwarrantable failure" as used in section 104(d) of the Mine Act.
30 U.S.C. $ 814(d). For the reasons that follow, we conclude that
unwarrantable failure means aggravated conduct, constituting more
than ordinary negligence, by a mine operator in relation to a
violation of the Act.

                  I.

This proceeding involves a violation by Emery Mining

Corporation ("Emery") of 30 C.F.R. $ 75.200, the mandatory
underground coal mine roof control standard. Commission
Administrative Law Judge John J. Morris found that the violation
occurred and was the result of Emery's unwarrantable failure to
comply with the cited standard within the meaning of section 104(d)(1)
of the Mine Act. 30 U.S.C. $ 814(d)(1). 1/

Page 2

1/ Section 104(d)(1) of the Act states in part:

 If, upon any inspection of a coal or other mine, an
 authorized representative of the Secretary finds that
 there has been a violation of any mandatory health or
 safety standard, and if he also finds that, while the
 conditions created by such violation

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8 FMSHRC 930 (June 1986)(ALJ). The sole issue on review is
whether this finding of unwarrantable failure was proper. For the
reasons that follow, we conclude that Emery did not exhibit the kind
of aggravated conduct necessary to sustain a finding of unwarrantable
failure. Accordingly, we reverse.

Emery's Deer Creek mine is an underground coal mine located

in Huntington, Utah. On October 22, 1985, Emery's safety department
received reports that along the First South haulage track, between
the No. 65 and No. 66 crosscuts, a section of chain link mesh was
hanging from the roof. That same day Emery safety engineer, Gary
Christensen, was instructed to investigate the problem. Christensen
was accompanied underground by Dick Jones, an inspector of the
Department of Labor's Mine Safety and Health Administration ("MSHA"),
and by Max Tucker, a member of the union safety committee.

Along the haulage track, between the No. 65 and No. 66

crosscuts, chain link mesh had been bolted to the roof. Christensen
found three or four inches of loose coal resting on the mesh. The
coal had broken from the roof, fallen onto the mesh, and caused the
mesh to sag. While Christensen clipped the mesh to remove the coal,
Jones and Tucker examined the surrounding area and found four roof
bolts, each of which was missing its six-inch-square bearing plate.
The MSHA inspector believed that the pressure of the roof had "popped"
the bearing plates off the bolts. Approximately 10 feet away from
these bolts, fallen coal had caused the chain link mesh to sag and
press across a trolley guard.

Inspector Jones concluded that the roof conditions between the
No. 65 and No. 66 crosscuts indicated that the roof was not adequately

 do not cause imminent danger, such violation is of
 such nature as could significantly and substantially
 contribute to the cause and effect of a coal or other
 mine safety or health hazard, and if he finds such
 violation to be caused by an unwarrantable failure of
 such operator to comply with such mandatory health or
 safety standards, he shall include such finding in any
 citation given to the operator under this [Act]. If,
 during the same inspection or any subsequent inspection
 of such mine within 90 days after the issuance of such
 citation, an authorized representative of the Secretary
 finds another violation of any mandatory health or safety
 standard and finds such violation to be also caused by an
 unwarrantable failure of such operator to so comply, he

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shall forthwith issue an order requiring the operator to
cause all persons in the area affected by such violation ...
to be withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the Secretary
determines that such violation has been abated.

30 U.S.C. $814(d)(1).

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supported in violation of section 75.200. 2/ Having made further
findin000that the violation was of a significant and substantial
nature and was the result of the operator's unwarrantable failure
to comply with the standard, the MSHA inspector issued to Emery a
citation pursuant to section 104(d)(1) of the Mine Act (n. 1, supra).

Emery contested the citation, asserting that it was not in

violation of section 75.200 and that, in any event, the violation was
not the result of its unwarrantable failure. Following an evidentiary
hearing, the judge credited the inspector's testimony that a lack of
adequate roof support was shown by virtue of the four roof bolts that
had "popped" their plates. 8 FMSHRC at 935. The judge held that the
sagging in the chain link mesh itself did not violate the standard,
but served to focus attention on the area of the entry where the
violation occurred. Id. Noting that the First South haulage track
was a regularly traveled entry in the mine, the judge concluded that
the roof bolts had "popped" their plates at least a week before
October 22, and that Emery's safety personnel, who were required to
inspect the haulage track for safety hazards, "should have known of
the condition." 8 FMSHRC at 936. The judge therefore concluded that
the violation was due to Emery's unwarrantable failure to comply with
section 75.200.

On review Emery contends that if the judge's decision stands,

any violation in an active area of a mine will be an unwarrantable
failure violation because supervisors and preshift examiners travel
through and inspect all such areas. Emery argues that the judge's
decision construes unwarrantable failure as equivalent to ordinary
negligence and that only a more stringent legal standard, one
involving aggravated conduct, can be the basis for an unwarrantable
failure finding. 3/ We agree.

2/ Section 75.200 provides in part:

         Each operator shall undertake to carry out on a
 continuing basis a program to improve the roof control
 system of each coal mine and the means and measures to
 accomplish such system. The roof and ribs of all active
 underground roadways, travelways, and working places shall
 be supported or otherwise controlled adequately to protect
 persons from falls of the roof or ribs. A roof control
 plan and revisions thereof suitable to the roof conditions
 and mining system of each coal mine and approved by the
 Secretary shall be adopted and set out in printed form....

Page 6

(Emphasis added.)

3/ The American Mining Congress ("AMC") has filed a brief amicus
curiae that essentially presents the same arguments put forth by
Emery.

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II.

In the Mine Act the term "unwarrantable failure" appears only

in section 104(d). Its presence and use is of vital importance in
the enforcement of the Act. See Nacco Mining Co., 9 FMSHRC 1541,
1545-46 (September 1987); UMWA v. FMSHRC and Kitt Energy Corp,
768 F.2d 1477, 1479 (D.C. Cir. 1984). See also S. Rep. No. 181,
95th Cong., 1st Sess. 31 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of
1977, at 619 (1978)("Mine Act Legis. Hist."). Section 104(d) is an
integral part of the Act's enforcement scheme, a scheme which, as an
incentive for operator compliance, provides for "increasingly severe
sanctions for increasingly serious violations or operator behavior."
Cement Division, National Gypsum Company, 3 FMSHRC 822, 828 (April
1981). Under this enforcement scheme, sections 104(a) and 110(a)
provide that the violation of any mandatory safety or health standard
requires the issuance of a citation and assessment of a monetary
civil penalty. 30 U.S.C. $$ 814(a) & 820(a). Under sections 104(b)
and 110(b), if the operator does not correct the violation within the
prescribed period, the more severe sanction of a withdrawal order is
required and a greater civil penalty is assessed. 30 U.S.C. $$ 814(b)
& 820(b).

 Under section 104(d) an unwarrantable failure finding serves

to trigger the application of yet more rigorous sanctions. As the
U.S. Court of Appeals for the District of Columbia Circuit has
explained:

          An "unwarrantable failure" citation commences
 a probationary period: If a second violation
 resulting from an "unwarrantable failure" is found
 within 90 days, the Secretary must issue a "withdrawal
 order" requiring the mine operator to remove all persons
 from the area ... until the violation has been abated....

          Once a withdrawal order has been issued, any
 subsequent unwarrantable failure results in another such
 order. This "chain" of withdrawal order liability remains
 in effect until broken by an intervening "clean" inspection.
 That is, "an inspection of such mine [which] discloses no
 similar violations."

UMWA v. FMSHRC and Kitt Energy Corp., 768 F.2d at 1478-79 (emphasis
in original). The court described this section 104(d) "chain" of

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citations and withdrawal orders, keyed to the operator's unwarrantable
failure to comply, as "among the Secretary's most powerful instruments
for enforcing mine safety." 768 F.2d. at 1479. The threat of the
"chain" is a forceful incentive for the operator to exercise special
vigilance in health and safety matters. Nacco Mining Co., supra,
9 FMSHRC at 6.

Although section 104(d) is.a key element of the overall attempt

to improve health and safety practices in the mining industry (Mine
Act

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Legis. Hist. at 618-620), the Act does not define the term
"unwarrantable failure." Consequently, in determining its
meaning, we must turn to intrinsic and extrinsic aids of statutory
construction. We must examine the meaning of the term with reference
to both its meaning in ordinary usage and its context in the statute,
as well as any legislative history and judicial precedent relating to
"unwarrantable failure."

We first determine the ordinary meaning of the phrase

"unwarrantable failure." "Unwarrantable" is defined as "not
justifiable" or "inexcusable." "Failure" is defined as
"neglect of an assigned, expected, or appropriate action."
Webster's Third: New International Dictionary (Unabridged) 2514,
814 (1971) ("Webster's"). Comparatively, negligence is the failure
to use such care as a reasonably prudent and careful person would
use and is characterized by "inadvertence," "thoughtlessness," and
"inattention." Black's Law Dictionary 930-31 (5th ed. 1979).
Conduct that is not justifiable and inexcusable is the result of
more than inadvertence, thoughtlessness, or inattention. Thus, the
ordinary meaning of the phrase "unwarrantable failure" suggests more
than ordinary negligence. Indeed, we note the Secretary's position
that this view of unwarrantable failure represents the intent of the
phrase. The Secretary insists that to equate ordinary negligence
with unwarrantable failure is to "grossly mischaracteriz[e]" his
position. S. Reply Br. 3, 5.

In statutory interpretation, the ordinary meaning of words

must prevail where that meaning does not thwart the purpose of the
statute or lead to an absurd result. In re Trans Alaska Pipeline
Rate Case, 436 U.S. 631, 643 (1978). Far from leading to an absurd
result, construing "unwarrantable failure" to mean aggravated conduct
constituting more than ordinary negligence produces a result in
harmony with the Mine Act's statutory enforcement scheme of providing
increasingly severe sanctions for increasingly serious mine operator
behavior. Within the Mine Act are found distinct descriptions of
types of operator conduct that evoke particular sanctions.
"Negligent" conduct is considered when proposing and assessing civil
penalties. 30 U.S.C. $$ 815(b)(1)(B) & 820(i). Conduct that is
"knowing" and "willful" may result in civil or criminal sanctions
against individual corporate agents. 30 U.S.C. $$ 820(c) & (d).
Conduct determined to be characterized by an unwarrantable failure
to comply with a mandatory regulation results in a section 104(d)
"chain" of citations and orders. The Mine Act's use of different
terms within the same statute demonstrates that Congress intended the
different terms to censure different types of operator conduct within

Page 10

a graduated enforcement scheme. Cf. Persinger v. Islamic Republic of
Iran, 729 F.2d 835, 843 (D.C. Cir. 1984); National Insulation Transp.
Committee v. I.C.C., 683 F.2d 533, 537 (D.C. Cir. 1982).

Construing unwarrantable failure to mean aggravated conduct

constituting more than ordinary negligence is consistent with the
manner in which the Secretary enforces the Mine Act. In civil penalty
cases brought before the Commission, the Secretary often argues that
an operator was negligent in allowing a violation to exist, yet the

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Secretary does not assert that the operator's conduct was marked
by unwarrantable failure. Similarly, in settling civil penalty
cases the Secretary often agrees to delete unwarrantable failure
findings because, upon further consideration, the operator's
negligence was less egregious than had been believed. Equally
significant, the Secretary's civil penalty proposal regulations
recognize degrees of negligence, 30 C.F.R. $ 100.3(d), but distinguish
unwarrantable failure violations as distinct and subject to higher
special penalty assessments. 30 C.F.R. $ 100.5(b). Further, the
Secretary has represented before the Commission that unwarrantable
failure findings constitute approximately three percent of the
citations and orders issued by MSHA. 4/ Amicus AMC attached to its
brief official MSHA reports, which indicate that in 1986 the Secretary
issued 126,026 citations that were the result of operators' "low" or
"moderate" negligence, and 3,462 violations that were the result of
operators' "high negligence" or "reckless disregard." The latter
number roughly corresponds with the 3,572 "unwarrantable failure"
citations issued in 1986. AMC Br. 16-17 and attachments D & E.
Thus, in enforcement practice as well as in theory, the Secretary
views unwarrantable failure as aggravated conduct that is more than
ordinary negligence. See S. Reply Br. 3, 5; S. Br. 9.

 Construing unwarrantable failure as aggravated conduct

constituting more than ordinary negligence also is essentially
in harmony with the legislative history bearing on the term.
Unwarrantable failure sanctions first appeared in section 203(d)
of the Federal Coal Mine Safety Amendments Act of 1965. 30 U.S.C.
$ 472 (1966). Section 203(d) was carried over with minor changes
as section 104(c) of the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. $ 814(c) (1976) ("Coal Act"), and section 104(c)
was, in turn, carried over without substantive change as section
104(d) of the Mine Act. In summarizing the major provisions of the
bill that became the Coal Act, the Conference Committee stated that
unwarrantable failure to comply meant "the failure of an operator to
abate a violation he knew or should have known existed." Senate
Subcommittee on Labor, Committee on Labor and Public Welfare,
94th Cong., 1st Sess., Part I Legislative History of the Federal
Coal Mine Health and Safety Act of 1969, at 1602 (1975) ("Coal Act
Legis. Hist."). In addition, the House Managers stated that
unwarrantable failure to comply meant "the failure of an operator
to abate a violation he knew or should have known existed, or the
failure to abate a violation because of a lack of due diligence, or
because of indifference or lack of reasonable care on the operator's
part." Coal Act Legis. Hist. 1512. Further, in Zeigler Coal Co.,
7 IBMA 280, 295-96 (March 1977), the Interior Board of Mine Operations

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Appeals interpreted unwarrantable failure to mean the failure to
abate conditions or practices the operator "knew or should have known
existed or which it failed to abate because of due diligence, or
because of indifference or lack of reasonable care." In drafting the
1977 Mine Act, the Senate Committee report cited Zeigler with
approval. Mine Act Legis. Hist.

4/ See the Secretary's brief on review in Helen Mining Co., 9 FMSHRC
1095 (June 1987): S. Br. 11. See also statement of Solicitor of
Labor, George Salem, Nacco Mining Co., 9 FMSHRC 1541 (September 1987),
Oral Arg. Tr. 20.

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62O. 5/

 Thus, the legislative histories of the Coal Act and the

Mine Act and the Board's definition in Zeigler make reference to
"unwarrantable failure" in terms of "indifference," "knew or
should have known," "lack of due diligence," and "lack of reasonable
care." Although neither the legislative histories nor the Board
further explored the meaning of these terms in any detail, the
ordinary meanings of these terms are largely congruent with the
aggravated conduct meaning discussed above. Indeed, in discussing
aggravated conduct that constitutes unwarrantable failure, the
Commission has concurred previously with the Board's Zeigler decision
to the extent that an unwarrantable failure may be proved by showing
that a violative condition or practice was not corrected prior to the
issuance of a citation or order because of "indifference, willful
intent or serious lack of reasonable care." United States Steel
Corp., 6 FMSHRC 1423, 1437 (June 1984); Westmoreland Mining Co.
7 FMSHRC 1338, 1342 (September 1985).

 The descriptions of unwarrantable conduct proffered in

the legislative histories and Zeigler in large measure harmonize
with and complement the conclusion that unwarrantable failure
means more than ordinary negligence. The usual meaning of
"indifference" is of "little consequence" or "total or nearly
total lack of interest." Webster's 1151. In common legal parlance
"indifferent" conduct is conduct more aggravated than ordinary
negligence. Prosser and Keaton on the Law of 'Torts 212 (1984).
Likewise, under the Mine Act a corporate agent who "knowingly"
authorizes a violation of a mandatory health or safety standard
under the Act is subject to personal civil and criminal liability.
30 U.S.C. $ 820(c). This heightened liability is clearly a
Congressional response to more serious breaches of operator conduct,
i.e., aggravated conduct. The term "knowingly" has been interpreted
to mean "knew or had reason to know." Secretary v. Kenny Richardson,
3 FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983); Secretary v. Roy Glenn, 6 FMSHRC
1588, 1585-86 (July 1984). Therefore, the references in the
legislative history and in Zeigler to "indifference" and "knew or
should have known"

5/ Zeigler was decided on a remand from the U.S. Court of Appeals
for the District of Columbia Circuit. UMWA v. Kleppe, 532 F.2d
1403 (D.C. Cir. 1976). The issue before the D.C. Circuit was whether
an "unwarrantable failure" closure order (and subsequent closure
orders in the chain) had to be based both on "unwarrantable failure"

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and "significant and substantial findings." The court held that only
a finding that the violation was the result of the operator's
unwarrantable failure to comply was required. Before the court,
the UMWA had also challenged the Board's definition of '"unwarrantable
failure," established in a prior, unappealed case. Eastern Associated
Coal Co., 3 IBMA 331 (September 1974). In Eastern, the Board had
defined "unwarrantable table failure" as intentional or knowing
failure to comply or reckless disregard for the health and safety of
miners. Id. at 356. The court in Kleppe explicitly declined to
address the definition of "unwarrantable failure," but left the Board
the option to revisit the issue. 532 F.2d at 1407 n.7.

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describe aggravated forms of operator conduct.

With regard to the phrases "lack of due diligence" and "lack

of reasonable care" also appearing in these sources, we recognize
that the phrases, if considered in isolation, can be viewed as
referring to an ordinary negligence test. However, ascribing such a
meaning to "unwarrantable failure" cannot be reconciled with either
the purpose of unwarrantable failure sanctions or with the ordinary
meaning of the term unwarrantable failure itself. Where the ordinary
meaning of the phrase "unwarrantable failure" complements and
effectuates the enforcement scheme of the Mine Act that meaning must
prevail. As the U.S. Court of Appeals for the District of Columbia
Circuit recently stated in a related context, "it is beyond cavil that
the first step in any statutory analysis, and our primary interpretive
tool, is the language of the statute itself." American Civil
Liberties Union v. FCC. 823 F.2d 1554, 1568 (D.C. Cir. 1987). Thus,
to the extent that these limited references in the legislative history
are at odds with the structure and purpose of the Act, as well as
other parts of the legislative history, they are not controlling.
Abourezk v. Reagan, 785 F.2d 1043, 1055 n.11 (D.C. Cir. 1986), cert.
granted, U.S. , 107 S.Ct. 666 (December 15, 1986). See also
United Air Lines, Inc. v. CAB, 569 F.2d 640, 647 (D.C. Cir. 1977).
Therefore, we conclude that unwarrantable failure means aggravated
conduct, constituting more than ordinary negligence, by a mine
operator in relation to a violation of the Act.

                III.

Turning now to the specific violation at issue, we conclude that

substantial evidence does not support the judge's finding that the
violation resulted from Emery's unwarrantable failure to comply with
section 75.200.

The judge premised his finding that the lack of adequate

roof support was the result of an unwarrantable failure upon his
conclusion that the four roof bolts were without their bearing
plates for at least a week before their condition was detected and
that Emery's preshift and onshift inspectors should have detected
and corrected the condition. 8 FMSHRC at 936. Under the
circumstances of this case, the fact that Emery's preshift or
onshift examiners did not detect the four roof bolts with "popped"
plates is not an adequate basis for a finding of such aggravated
conduct constituting unwarrantable failure.

Emery was not indifferent to roof support in the entry

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between the No. 65 and No. 66 crosscuts. Indeed, the record shows
that Emery knew for some time of the instability of the roof along
the track haulage, including the area between the cited crosscuts,
and took exceptional measures to provide adequate roof support. Emery
placed cribs on one side of the track and timbers on the other as
close together as possible. Emery placed steel mats on the roof,
running crossways, and pinned the mats with roof bolts. In addition,
Emery installed chain link mesh between the mats with another set of
roof bolts. Emery exceeded the requirements of its approved roof
control plan by placing some roof bolts as close together as one or
two feet. The area between the crosscuts was approximately 55 feet
long. The area

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contained hundreds of roof bolts. Given these efforts to support
the roof adequately, we cannot conclude that simply because four
of these roof bolts had missing plates Emery exhibited aggravated
conduct exceeding ordinary negligence. Cf. Westmoreland Mining Co.,
7 FMSHRC at 1342.

Accordingly, we hold that the violation of section 75.200 was

not caused by Emery's unwarrantable failure. We reverse the judge's
contrary finding and modify the section 104(d)(1) citation to a
citation issued pursuant to section 104(a). 30 U.S.C. $ 814(a).

              Ford B. Ford, Chairman

              Richard V. Backley, Commissioner

              Joyce A. Doyle, Commissioner

              James A. Lastowka, Commissioner

              L. Clair Nelson, Commissioner

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Distribution

Timothy M. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Henry Chajet, Esq.
American Mining Congress
1920 N Street, N.W.
Suite 300
Washington, D.C. 20036

Administrative Law Judge John Morris
Federal Mine Safety and Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204