Eastern Associated Coal Corporation

Plain-English summary

Eastern Associated Coal operated the Federal No. 2 surface coal mine in West Virginia. MSHA issued an imminent-danger withdrawal order under section 107(a) and a section 104(d)(2) withdrawal order for the same unguarded conveyor tail roller, where miners had cleaned spillage while the belt was operating. The Commission held that the Mine Act did not bar MSHA from issuing both orders for the same condition, because the orders address different enforcement purposes and the section 104(d)(2) order preserves the unwarrantable-failure consequences. It affirmed the judge's decision and the $1,500 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.400
• Outcome: The Commission affirmed both withdrawal orders and the $1,500 civil penalty.
• Key point: An imminent-danger order under section 107(a) may be issued together with a section 104(d)(2) withdrawal order for the same violative condition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
WASHINGTON, D.C.
June 25, 1991

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

v.              Docket No. WEVA 89-192

EASTERN ASSOCIATED COAL
CORPORATION

BEFORE: Backley, Acting Chairman; Doyle. Holen and Nelson, Commissioners

                DECISION

BY THE COMMISSION:

 This civil penalty proceeding arises under the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)("Mine Act" or "Act").
It involves the validity of two orders of withdrawal issued for the same
violative condition to Eastern Associated Coal Company ("Eastern"), by the
Department of Labor's Mine Safety and Health Administration ("MSHA"),
pursuant to sections 104(d)(2) and 107(a) of the Mine Act. 30 U.S.C.
814 (d)(2) & 817(a). Commission Administrative Law Judg Avram
Weisberger affirmed both withdrawal orders. In an Order denying Eastern's
Motion for Summary Decision, he concluded that neither the Mine Act nor its
legislative history prohibits MSHA from issuing a section 104(d)(2) order
of withdrawal in conjunction with a section 107(a) imminent danger order of
withdrawal. 11 FMSHRC 1868 (September 1989)(ALJ). On the basis of
stipulated facts, the judge granted the Secretary of Labor's Motion for
Summary Decision, affirmed the withdrawal orders end assessed a civil
penalty of $1,500. Unpublished Decision dated April 20, 1990. For the
reasons set forth below, we affirm the judge's decision.

                 I.

         Factual and Procedural Background

Eastern operates a surface coal facility at the Federal No. 2 Mine

in Monongalia County, West Virginia. On January 26. 1989 MSHA Inspector
Joseph Migaiolo issued several withdrawal orders at the mine including
Order No. 3106731, under section 107(a) of the Mine Act, and Order
No. 3106732,

under section 104(d)(2), for a violation of 30 C.F.R. 77.400. 1/
The inspector issued the section 107(a) imminent danger order because
he determined that a guard for the tail roller of a conveyor belt had
been removed and that miners had cleaned spillage from both sides of the
unguarded tail roller while the belt was operating. The section 104(d)(2)
order alleged a violation of 30 C.F.R. 77.400 for the same unguarded
tail roller that was described in the imminent danger order. The order
also stated that "[t]his is a repeat violation at this location identical
in nature from a previous inspection as well as repeated when observed at
least twice by safety committee inspections [sic]." Order No. 3106732.

The orders were issued at 8:21 a.m. The cited condition was abated

at 8:45 a.m. on the same day, when Eastern installed the guards at the
cited locations and "presented education and training to the miners on safe
work procedures." Orders 3106731 and 3106732. Eastern contested both
orders.

On August 21, 1989 Eastern filed a Motion for Summary Decision with

the judge on the basis that, as a matter of law, only a 104(a) citation may
be issued in conjunction with a 107(a) imminent danger order." Eastern
asked the judge to modify the section 104(d)(2) order to a section 104(a)
citation. It conceded that the conditions set forth in the orders existed
but denied that they were the result of its unwarrantable failure. Eastern
contended that section 107(a) of the Mine Act 2/ allows an inspector to
issue a citation

1/ Section 77.400 entitled "Mechanical equipment guards" provides, in
pertinent part:

           (a) Gears; sprockets; chains; drive, head, tail,
  and takeup pulleys; flywheels; couplings; shafts;
  sawblades; fan inlets; and similar exposed moving
  machine parts which may be contacted by persons, and
  which may cause injury to persons shall be guarded.

           *       *       *

            (d) Except when testing the machinery, guards
  shall be securely in place while machinery is being
  operated.

2/ Section 107(a) provides:

            If, upon any inspection or investigation of a coal
  or other mine which is subject to this [Act], an

authorized representative of the Secretary finds that
an imminent danger exists, such representative shall
determine the extent of the area of such mine through
out which the danger exists, and issue an order
requiring the operator of such mine to cause all
persons, except those referred to in section [104(c)]
of this [Act], to be withdrawn from, and to be

under section 104(a) along with an imminent danger order but prohibits
him from issuing another withdrawal order for the same condition.
Eastern further argued that section 104(d)(1) of the Mine Act 3/ also
supports its position that only a section 104(a) citation may be issued
with an imminent danger order because section 104(d)(1) expressly limits
the issuance of a citation under that section to circumstances in which
"the conditions created by such violation do not cause imminent danger."
30 U.S.C. 814(d)(1). Eastern reasoned that because section 104(d)(2)
of the Mine Act 4/ is dependent upon

   prohibited from entering, such area until an authorized
   representative of the Secretary determines that such
   imminent danger and the conditions or practices which
   caused such imminent danger no longer exist. The
   issuance of an order under this subsection shall not
   preclude the issuance of a citation under section [104]
   of this [Act] or the proposing of a penalty under
   section [110] of this [Act].

30 U.S.C. 817(a)(emphasis added).

4/ Section 104(d)(1), in relevant part, provides:

            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 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 standard,
  he shall include such finding in any citation given to
  the operator under this Act.

30 U.S.C. 814(d)(1) (emphasis added).

4/ Section 104(d)(2) provides:

            If a withdrawal order with respect to any area in
  a coal or other mine has been issued pursuant to
  paragraph (1), a withdrawal order shall promptly be
  issued by an authorized representative of the Secretary

who finds upon any subsequent inspection the existence
in such mine of violations similar to those that
resulted in the issuance of the withdrawal order under
paragraph (1) until such time as an inspection of such
mine discloses no similar violations. Following an
inspection of such mine which discloses no similar
violations, the provisions of paragraph (1)

104(d)(1), the prohibition in (d)(1) against an inspector finding an
imminent danger in conjunction with issuing a section 104(d)(1) citation
also applies to (d)(2). Eastern argued that "as only 'violations similar
to those that resulted in the issuance of the withdrawal order under
paragraph (1) may result in a (d)(2) order, and as paragraph (d)(1)
citations may be issued only when there is no imminent danger, it
follow[s] that a (d)(2) order may not be issued in conjunction with the
107(a) order." Memorandum of Law in Support of Respondent's Motion for
Summary Decision at 4 (emphasis in original).

In response to Eastern's motion, the Secretary stated that she is not

precluded from issuing a section 104(d)(2) unwarrantable failure order in
conjunction with a section 107(a) imminent danger order for two basic
reasons. First, she contended that the language of the Mine Act and the
legislative history do not preclude the conjunctive issuance of such
orders. Second, she maintained that her position on this issue is based on
a permissible construction of the statute, is reasonable, and furthers the
purpose of the Act. She concluded by arguing that "[o]ne order addresses
the heightened negligence of the operator while the other addresses the
heightened gravity of the condition cited, and an inspector should not be
made to choose which order he will issue." Secretary's Response to Motion
for Summary Decision at 12.

The judge rejected each of Eastern's arguments and denied Eastern's

motion. 11 FMSHRC at 1868. First, the judge stated that he could find no
support in the language of section 107(a) or the legislative history for
Eastern's argument that by expressly not precluding the issuance of a
citation under section 104(a), Congress intended thereby to preclude the
issuance of a section 104(d) order. 11 FMSHRC at 1868-69. Second, he
determined that the language referred to by Eastern in section 104(d)(1)
was "insufficient to base a conclusion that Congress intended that a
section 104(d)(2) order may not be issued in conjunction with a section
107(a) order." 11 FMSHRC at 1869. The judge agreed with the Secretary
that if Eastern's interpretation is adopted "it will result in the
frustration of the statutory scheme embodied in section 104(d)(1) and (2),
as an inspector would be prevented from issuing orders required by section
104" whenever an imminent danger exists. Id. He concluded that "it has
not been established, that, as a matter of law, the section 104(d)(2) order
herein was improperly issued and should be amended to a section 104(a)
citation." 12 FMSHRC at 1870.

Eastern petitioned the commission for interlocutory review of the

judge's order (29 C.F.R. 2700.74). and the Commission denied the petition
on October 26. 1989. Eastern's petition to reconsider the denial was also
denied by the Commission on November 30, 1989.

After the judge set the case for hearing, the parties stipulated to

the following key facts: (1) "An imminent danger as defined by Section
107(a) of the Act existed at the belt roller;" (2) "A violation of 30
C.F.R. 77.400 existed at the belt roller;" (3) "The violation was of such
a nature as to

    shall again be applicable to that mine.

30 U.S.C. 814(d)(2) (emphasis added).

significantly and substantially contribute to the cause and effect of
a mine safety hazard;" and (4) "The violation was the result of an
unwarrantable failure on the part of [Eastern]." Stipulated Facts, filed
March 27, 1990, at 2.

The Secretary filed a Motion for Summary Decision, asserting that the

Stipulated Facts disposed of all issues except whether section 107(a) and
104(d)(2) orders can be issued for the same condition. She argued that
since the judge decided that issue in his Order of September 12, 1989, the
judge should issue a decision affirming the orders and assessing a penalty.

In an unpublished decision dated April 20. 1990, the judge held:

             The Secretary ... on March 27, 1990, filed a
  Motion for Summary Decision concerning Order Nos.
  3106731 and 3106732. This Motion was not opposed by
  Respondent. Accordingly, and based on the stipulated
  facts filed along with the Motion, the Motion is
  GRANTED.

The judge assessed a civil penalty of 1,500.

                    II.

              Disposition of Issues

Eastern's position before the Commission is essentially the same as

it was before the judge. First, it argues that the last sentence of
section 107(a) prohibits the issuance of a companion section 104(d)(2)
order of withdrawal. It contends that the terms "order" and "citation" are
not used interchangeably in the Act because each has "a precise meaning and
precise ramifications." Eastern Br. 3. It maintains that a court may not
insert words or phrases into a statute and that if Congress had intended
that section 104(d} orders could be issued in conjunction with 107(a)
orders, it would have so stated. Eastern argues that because the language
of section 107(a) is clear on its face, the Commission cannot expand that
section beyond its plain meaning and that resort to the legislative history
to aid construction is proper only where the language of the Mine Act is
ambiguous.

Second, Eastern contends that the judge read section 104(d) in

isolation, without considering "the balance of the enforcement scheme
contained in 104" of the Mine Act. Eastern Br. 5. As an example, Eastern
offers the fact that conditions supporting the issuance of a withdrawal
order pursuant to section 104(b). 30 U.S.C. 814(b) may also support the

issuance of a section 104(d) order. Eastern argues that "MSHA correctly
makes no effort to issue concurrent withdrawal orders at that point for the
obvious reason that they would be in derogation of the statutory scheme of
enforcement." Eastern Br. 6. Likewise, Eastern asserts that issuing
concurrent 107(a) and 104(d) orders would be "in derogation of the
statutory scheme of enforcement." Id. In addition, Eastern maintains that
the only plausible explanation for the last sentence of section 107(a) is
that it enables the Secretary to propose a penalty should any violation be
found.

Finally, Eastern argues that the statutory purpose of protecting the safety
of miners will not be frustrated if a 104(d)(2) order cannot be issued with
a 107(a) order because a withdrawal of miners will be required by the
imminent danger order in any event.

The Secretary's position also is essentially the same as it was

before the judge. First, she argues that the language of the last sentence
of section 107(a) is permissive, not restrictive. She argues that had
"Congress meant to restrict the type of enforcement action the Secretary
may issue in conjunction with a section 107(a) order, it would have stated
that 'only' section 104(a) citations may be issued' or that 'citations, but
not orders' may be issued." Sec. Br. 6. She concurs with the judge's
conclusion that Eastern's interpretation is not supported by a plain
reading of section 107(a) or its legislative history. She states that the
disputed language in section 107(a) was included merely to make clear that
the enforcement mechanisms available under section 104 and 110 are
available to the Secretary even when the particular violation creates an
imminent danger.

The Secretary maintains that "Congress could not reasonably have

intended that [an operator's unwarrantable] misconduct be removed from the
reach of section 104(d) sanctions merely because of the happenstance that
such misconduct resulted in conditions that arose beyond merely
'significant and substantial' and created an imminent danger." Sec. Br. 9.
She maintains that, if an operator could evade the sanctions of section
104(d) on the basis that the violation was so egregious as to result in an
imminent danger, "the incentive to improve conduct, which the 104(d)
withdrawal order threat places on an operator, would be lost." Id.
Finally, she concludes that, because her interpretation of the disputed
language of section 107(a) is reasonable, the Commission should hold that
the issuance of a section 107(a) order does not affect her ability to issue
orders under section 104(d).

A. Section 107(a)

Each party argues that the plain meaning of the last sentence of

section 107(a) supports its respective position in this case. By its
terms, the disputed sentence permits an inspector to issue a section 104
citation in conjunction with an imminent danger order. The language of
this sentence, however, does not address the issuance of other orders.
Consequently, we believe that the language is sufficiently ambiguous to
require a more thorough analysis than that provided by the parties.

The legislative history of the last sentence of section 107(a) is

instructive. The imminent danger provision of the Coal Mine Health and

Safety Act of 1969, 30 U.S.C. 801 et seq. (1976)(amended 1977) ("Coal
Act"), was contained in that statute's section 104(a). That provision was
very similar to section 107(a) of the Mine Act of 1977 but did not contain
the language in dispute in this case. 5/ Section 104(b) of the Coal Act
authorized an

5/ Section 104(a) of the Coal Act provided:

           If, upon any inspection of a coal mine, an

inspector to issue to an operator a notice of violation (the equivalent
of a citation) if he found a violation of a safety or health standard
that did not create an imminent danger. 6/ Under the Coal Act, if an
inspector found that a violation created an imminent danger, he issued
an imminent danger order under section 104(a) and the same order also
charged the operator with a violation of a safety or health standard.
A civil penalty was assessed for the violation alleged in the order.
Eastern Associated Coal Corp., 1 IBMA 233, 236, 1 BNA MSHC 1046, 1048-49
(December 1972). In such a case, a separate notice of violation (citation)
was not issued by the inspector.

The version of the Mine Act that passed the House in 1977 did not

amend the imminent danger provision of the Coal Act. Senate Subcommittee
on Labor. Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 1260 et seq.
(1978) ("Legis. Hist."). Thus, the House bill did not purport to change
the above-described method of charging operators with violations in
imminent danger orders and assessing civil penalties for such violations.
The Senate bill, on the other hand, moved the imminent danger provision to
a separate section of the Act. From the outset, the Senate bill contained
the disputed language permitting the issuance of a citation for a violation
under what became section 104 of the Mine Act. Legis. Hist. at 150, 551 &
1121. In addition, the section of the Senate bill that became section
105(a) of the Mine Act, 30 U.S.C. 815(a), provided for the assessment of a
penalty "after ... the Secretary issues a citation or order under section
[104]...." Legis. Hist. at 1118.

   authorized representative of the Secretary finds that
   an imminent danger exists, such representative shall
   determine the area throughout which such danger exists,
   and thereupon shall issue forthwith an order requiring
   the operator of the mine or his agent to cause
   immediately all persons, except those referred to in
   subsection (d) of this section, to be withdrawn from.
   and to be prohibited from entering, such area until an
   authorized representative of the Secretary determines
   that such imminent danger no longer exists.

30 U.S.C. 814(a) (1976) (amended).

6/ Section 104(b) of the Coal Act provided, in pertinent part:

            [I]f, upon any inspection of a coal mine, an
  authorized representative of the Secretary finds that
  there has been a violation of any mandatory health or

 safety standard but the violation has not created an
 imminent danger, he shall issue a notice to the
 operator or his agent fixing a reasonable time for the
 abatement of the violation.

30 U.S.C. 814(b) (1976) (amended) (emphasis added).

The Conference Report states:

           Under both [the Senate and House] versions, the
  issuance of an imminent danger withdrawal order would
  not preclude the issuance of a notice (or citation) or
  the proposal of a civil penalty assessment.

  The conference substitute conforms to the Senate
  bill....

S. Rep. No. 461, 95th Cong., 1st Sess. 55 (1977) reprinted in Legis. Hist.
at 1333. Thus, under the structure of the Mine Act, the Secretary's
allegation of a violation must be issued under section 104 rather than
section 107(a) because section 105(a) provides for the assessment of a
penalty only after "the Secretary issues a citation or order under section
104...." 30 U.S.C. 815(a).

Further analysis of the language of the disputed sentence in section

107(a) through intrinsic aids to construction helps explain its purpose.
2A Sutherland Statutory Construction. 45.14, at 70 (Sands 4th ed. 1984
rev.). One frequently used principle of statutory construction provides
that "the mention of one thing implies the exclusion of another; ex ressio
unius est exclusion alterius." 73 Am Jur. 2d Statutes. 211, at 405.
This principle of construction provides that the [l]egislative prescription
of a specified sanction for noncompliance with statutory requirements ...
exclude[s] the application of other sanctions." Sutherland, supra, 47.23
at 194. In essence, Eastern relies upon this principle to support its view
that Congress knew the difference between citations and orders so that its
failure to include orders in the disputed language means that it intended
to exclude them.

 This principle of statutory construction, however, "cannot apply when

the legislative history and context are contrary to such a reading of the
statute." U.S. v. Castro, 837 F.2d 441, 442-43 & n. 2 (11th Cir. 1988).
It is also clear that this principle is not a rule of law. Loc. Union 2274
UMWA v. Cinchfield Coal Co., 10 FMSHRC 1493, 1502 (November 1988), aff'd
sub. nom. Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773 (D.C. Cir. 1990);
Sutherland, supra, 47.23 at 194. As a consequence, it can be overcome by
indications of contrary legislative intent or policy. Id. In addition,
when the word "include" or "including" is used in a statute, "it is
generally improper to conclude that entities not specifically enumerated
are excluded." Sutherland, supra, 47.23 at 194.

As a matter of statutory construction, we believe that the "shall not
preclude" language is, as the Secretary maintains. permissive and not

restrictive. This language does not expressly exclude or otherwise address
the issuance of orders of withdrawal. Rather, this language is similar to
statutory provisions that contain the word "include" or "including," with
the result that "entities not specifically enumerated" are not to be
excluded unless such exclusion is warranted by the context or legislative
history.

Nothing in the legislative history suggests that the purpose of the

disputed language was to restrict the authority of the Secretary. As
noted, this language was apparently added because section 105(a) provides
a mechanism for assessing civil penalties only for citations and orders
issued under section 104. Thus, at a minimum, this language was included
to permit the Secretary to allege violations of safety and health standards
in conjunction with imminent danger closure orders and to assess civil
penalties for these alleged violations. We conclude from the legislative
history that Congress did not intend the last sentence of section 107(a) to
circumscribe the Secretary's enforcement authority under section 104 of the
Act.

 We also conclude from the Mine Act's remedial purpose that the

disputed language should not be construed to limit the Secretary's
enforcement authority. The Act's enforcement scheme provides for
"increasingly severe sanctions for increasingly serious violations or
operator behavior." Cement Division, National Gypsum Company, 3 FMSHRC
822, 828 (April 1981). Congress viewed section 104(d) as a key element in
the overall attempt to improve health and safety practices in the mining
industry. See S. Rep. No. 181, 95th Cong., 1st Sess. 30-32, reprinted in
Legis. Hist. 618-20. The threat of a chain of section 104(d) orders
"provides a powerful incentive for the operator to exercise special
vigilance in health and safety matters" because this sanction is triggered
by the unwarrantable conduct of the operator. Nacco Mining Co., 9 FMSHRC
1541, 1546 (September 1987). A determination that an operator's conduct in
relation to a violation ia unwarrantable is as relevant to situations where
the violation creates an imminent danger as to violations involving lesser
hazards. To read out of the Act the protections and incentives of a
section 104(d)(2) order on the basis that the hazard created by the
violation is so great that it creates an imminent danger would seem
peculiar on its face and would blunt the effectiveness of this sanction.

 The importance of section 104(d)(2) orders stems from the fact that

the chain of withdrawal order liability continues under that section until
broken by an intervening clean inspection. UMWA v. FMSHRC and Kitt Energy
Corp., 768 F.2d 1477, 1479 (D.C. Cir. 1984). The fact that the section
104(d)(2) 'order would not require the actual withdrawal of miners,
inasmuch as they would be withdrawn by the imminent danger order in any
event, does not render the unwarrantable failure order meaningless. The
unwarrantable failure order "would not be pointless, for it would serve to
place or keep the mine operator on the section 104(d)(2) probationary
chain." Emerald Mines Co. v. FMSHRC, 863 F.2d 51, 57 (D.C. Cir. 1988)
(footnote omitted).

Based on the legislative history, the remedial purposes of the

Act and the role of section 104(d) orders in the statutory scheme of

enforcement, we conclude that the Secretary is not prohibited by the
disputed language from issuing the two orders in this case.

B.   Section 104(d)

 Eastern also argues that section 104(d) itself prohibits the

issuance of an imminent danger order in conjunction with a section
104(d)(2) order. The judge held that neither the language nor the
legislative history supports Eastern's position. 11 FMSHRC at 1869. He
further stated that he did not find merit in Eastern's argument that
"inasmuch as section 104(d)(1) citations

may be issued only where there is no imminent danger. it follows that
similarly a section 104(d)(2) order may not be issued in conjunction
with a section 107(a) order." Id. We agree with the judge.

We reach our conclusion based on the plain meaning of the text of

the Mine Act. Section 104(d)(1) provides, in pertinent part, that [1] if
an inspector "finds that there has been a violation of any mandatory health
or safety standard, and [2] if he also finds that, while the conditions
created by such violation 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
[3] 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." (Emphasis and bracketed numbers added). We read the language in
clause [2] to mean that the conditions created by an S&S violation "need
not be so grave as to constitute an imminent danger." National Gypsum,
3 FMSHRC at 828. Because a section 104(d)(2) order need not be S&S, we
conclude that the "do not cause an imminent danger" language contained in
(d)(1) is not relevant to the issue of whether a (d)(2) unwarrantable
failure order can be issued in conjunction with an imminent danger order.

                    III.

                  Conclusion

 Accordingly, on the foregoing basis, the judge's decision is

affirmed.