UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CYPRUS EMERALD RESRC

v.

MSHR


98-1442a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: Section  104(d)(1) of the
Federal Mine Safety and Health Act of 1977  (Act) provides in part:


If, upon any inspection of a coal or other mine, an  authorized
representative of the Secretary [of Labor]  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 standards, he shall 
include such finding in any citation given to the operator  under this


30 U.S.C. s 814(d)(1). Designation of a violation as "signifi- cant and
substantial" under section 104(d)(1) can have signifi- cant
consequences to a mine operator. See 30 U.S.C.  s 814(d), (e).1 RAG
Emerald Resources Corp. (Emerald), 




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n 1 If the violation is found to be both "significant and substantial" 
and "caused by an unwarrantable failure of [the] operator to comply 
with [the] mandatory health or safety standards," section 104(d)(1) 
requires a withdrawal order for a second mandatory standard  violation
caused by an "unwarrantable failure to comply" within 90  days of the
first. 30 U.S.C. s 814(d)(1). Section 104(d)(2) requires  a second
withdrawal order for "violations similar to those that  resulted in
the issuance of the [first] withdrawal order." Id. 


formerly known as Cyprus Emerald Resources Corp., peti- tions for
review of a Federal Mine Safety Health Review  Commission (FMSHRC,
Commission) decision upholding a  finding that Emerald's violation of
30 C.F.R. s 50.11(b)  (50.11(b)) was "significant and substantial."
Secretary of  Labor v. Cyprus Emerald Resources Corp., 20 F.M.S.H.R.C.
 790 (1998). Emerald had challenged the finding on the  ground that
the plain language of section 104(d)(1) precludes  designation of the
50.11(b) violation as "significant and sub- stantial" because 50.11(b)
is not "a mandatory health or safety  standard" as section 104(d)(1)
requires.2 The Commission  determined that the statute is ambiguous on
the subject and  that the Commission could therefore reasonably
construe the  statutory language to permit such a finding. The Commis-
sion was wrong. Section 104(d) unambiguously authorizes a 
"significant and substantial" finding for violation only of a 
mandatory health or safety standard. We therefore hold that  a
"significant and substantial" finding is permissible in a  citation
charging violation of a mandatory safety or health 




__________

n s 814(d)(2). Section 104(e)(1) requires withdrawal for "any viola-
tion of a mandatory health or safety standard which could signifi-
cantly and substantially contribute to the cause and effect of a coal 
or other mine safety or health hazard" within 90 days after the 
operator has been notified of "a pattern of violations of mandatory 
health or safety standards in the coal or other mine which are of 
such nature as could have significantly and substantially contributed 
to the cause and effect of coal or other mine health or safety 
hazards." Id. s 814(e)(1). Once a section 104(e)(1) withdrawal  order
issues, section 104(e)(2) requires another such order for "any 
violation of a mandatory health or safety standard which could 
significantly and substantially contribute to the cause and effect of
a  coal or other mine health or safety hazard." Id. s 814(e)(2).


2 Mandatory safety and health standards are promulgated in  accord with
the procedure set out in section 101 of the Act, 30  U.S.C. s 811
(titled "Mandatory safety and health standards").  Both the Secretary
and the Commission have acknowledged that  the regulation here, 30
C.F.R. s 50.11(b), was promulgated not  under section 101 but under
section 508, 30 U.S.C. s 957, the Act's  general rulemaking provision.
See Secretary's Brief at 17 n.6; 20  F.M.S.H.R.C. at 799 n.10.


standard only3 and, accordingly, grant Emerald's petition for 


I.


Emerald operates a coal mine and processing plant in  Greene County,
Pennsylvania. Refuse from the plant is  ordinarily used to build up a
nearby impoundment embank- ment pursuant to a disposal plan approved
by the Mine  Safety and Health Administration (FMSHA) in 1983. When 
road or weather conditions prevent hauling refuse to the  impoundment,
Emerald takes it to a "short-haul" area closer  to the processing
plant. On April 2, 1993 FMSHA received a  complaint that part of a
short-haul refuse pile had collapsed  and slipped into a "slurry
pond."4 An FMSHA inspector  issued an "imminent danger" withdrawal
order pursuant to  section 107(a) of the Act, 30 U.S.C. s 817(a),5 and
upon a  subsequent inspection issued three citations charging
"signifi- cant and substantial" and "unwarrantable" violations of man-
datory safety standards (30 C.F.R. ss 77.215(f), 77.215(h) and 
77.1608(b)) under section 104(d)(1) for improperly construct-




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n 3 This holding was foreshadowed by language in Secretary of  Labor v.
FMSHRC, 111 F.3d 913 (D.C. Cir. 1997). See, e.g., 111  F.3d at 917
("Congress has plainly excluded consideration of sur- rounding
conditions that do not violate health and safety stan- dards."). In
that case, however, we did not address the precise  question raised
here. We held there that the plain language of  section 104(d)(1)
precludes the Commission from basing a "signifi- cant and substantial"
finding on conditions that did not violate the  regulation under which
the mine operator was cited. Because that  regulation was a mandatory
standard, we did not consider whether  the statute permits a
"significant and substantial" finding when the  violated regulation is
not a mandatory standard.


4 According to the Commission, "slurry" is "the fine carbonaceous 
discharge from a mine washery." 20 F.M.S.H.R.C. at 791 n.2.


5 Section 107(a) provides that, if an inspector "finds that an 
imminent danger exists" at a mine, he may issue a withdrawal order 
requiring the mine operator to evacuate the dangerous area until an 
inspector determines the danger and the condition that caused it  have
ceased. 30 U.S.C. s 817(a).


ing and using vehicles in the refuse pile. During his investi- gation,
the inspector learned of a previous refuse pile collapse  on December
27, 1992, for which the inspector also issued  citations alleging
"significant and substantial" and "unwar- rantable" violations of the
same standards. In addition, he  issued citations for violating two
additional regulations that  are not mandatory standards: 30 C.F.R. s
50.10, for failing to  notify FMSHA of the earlier collapse, and 30
U.S.C.  s 50.11(b), for failing to investigate the collapse. The
inspec- tor designated the 50.11(b) violation as "significant and sub-


After conducting a hearing, the administrative law judge  issued a
decision dated November 29, 1995 upholding each of  Emerald's
citations. Secretary of Labor v. Cyprus Emerald  Resources Corp., 17
F.M.S.H.R.C. 2086 (1995). In the deci- sion, the judge specifically
concluded that violation of a  regulation such as 50.11(b), which is
not a mandatory stan- dard, may be designated "significant and
substantial."6 Em- erald petitioned the Commission to review the


In a decision dated August 24, 1998 the Commission, inter  alia, upheld
the Secretary's designation of the 50.11(b) viola- tion as
"significant and substantial." The three-commissioner  majority
concluded that section 104 was ambiguous on the  issue and could
therefore be construed to permit "significant  and substantial"
designation of such a violation.7 Emerald  petitioned for review of




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n 6 The judge also stated, however, that because the citation was 
issued under section 104(a), and not under section 104(d), the 
finding was "an allegation of gravity, not an assertion of
jurisdiction  to apply the sanctions of [section] 104(d)," and
declined to "reach  the issue whether the sanctions of s 104(d) apply
to a violation of  Part 50." 17 F.M.S.H.R.C. at 2099.


7 Unlike the administrative law judge, see supra note 6, the 
Commission majority undertook to "address the issue squarely  raised
by the parties and consider whether the reference to manda- tory
health or safety standard in sections 104(d) and 104(e) pre- cludes
the Secretary from attaching the S&S designation to a 


II.


The outcome of this proceeding rests on the interpretation  of the
single statutory sentence quoted above and repeated  here:


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
immi- nent 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 unwarranta- ble failure of such operator
to comply with such mandato- ry health or safety standards, he shall
include such  finding in any citation given to the operator under this


30 U.S.C. s 814(d)(1) (emphasis added). If in drafting this  provision
" 'Congress has directly spoken to the precise ques- tion at issue,' "
we "must give effect to Congress's 'unambigu- ously expressed intent.'
" Secretary of Labor v. FMSHRC,  111 F.3d 913, 917 (D.C. Cir. 1997)
(quoting Chevron USA,  Inc. v. Natural Resources Defense Council,
Inc., 467 U.S.  837, 842 (1984)). "If 'the statute is silent or
ambiguous with  respect to the specific issue,' we ask whether the
agency's  position rests on a 'permissible construction of the
statute.' "  Id. (quoting Chevron, 467 U.S. at 843). We conclude, as 
Emerald has maintained from the start, that the highlighted  portion
of the quoted sentence plainly and unequivocally  conditions a
"significant and substantial" finding (as well as  an "unwarrantable"
one) upon an initial finding "that there  has been a violation of [a]
mandatory health or safety stan- dard." As the two dissenting
Commissioners observed, "The  language of the Act is inescapable on
this point." 20  F.M.S.H.R.C. at 826-27 n.1. We therefore hold that




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n violation of another regulatory requirement." 20 F.M.S.H.R.C. at 
801.


statute does not authorize the FMSHA to designate as "sig- nificant and
substantial" a violation of a regulation such as  50.11(b) that is not
a mandatory health or safety standard.


Despite the clarity of the relevant language, the Commis- sion suggests
a Chevron detour around the statute's plain  meaning. We find it
impassable. The Commission asserts  that the quoted statutory language
is somehow rendered  ambiguous by its reference to "any citation given
to the  operator under [chapter 22 of Title 30]," that is to any
citation  authorized by section 104(a). The Commission's reasoning, as
 far as we can discern it, runs thus: (1) section 104(d)(1) refers  to
a citation issued under section 104(a), which is the source  of the
Commission's authority to issue all citations, including  those
containing "significant and substantial" findings; (2)  section 104(a)
treats all violations identically, whether of a  statutory provision,
of a mandatory standard or of a regula- tion that is not a standard;
(3) therefore, it is ambiguous  whether the "significant and
substantial" authority in section  104(d)(1) also applies equally to
all violations. The Commis- sion's third point simply does not follow
from the other two;  and, besides, it ignores the unambiguous language
that the  Congress used.


The Commission has also suggested we should ignore the  statute's plain
meaning because without authority to make a  "significant and
substantial" finding for violation of a regula- tion that is not a
mandatory standard, FMSHA will be unable  to enforce such regulations
and the Congress's intent to  promote safety and prevent accidents
will therefore be  thwarted. We find the Commission's concerns
overblown.  We believe the Act provides adequate means to enforce such
 regulations, including section 107(a) "imminent danger" with- drawal
orders, section 104(a) citations and section 110(a) civil  penalties,
see 30 U.S.C. s 820(a). If the Secretary of Labor  finds a particular
practice or condition so dangerous as to  require the sanctions
provided in section 104(d) and (e), she  may promulgate an appropriate
mandatory standard under  section 101, 30 U.S.C. s 811, the violation
of which may  properly be found "significant and substantial." Given
these  alternative measures, we do not believe this is one of the 


" ' "rare cases [in which] the literal application of a statute  will
produce a result demonstrably at odds with the intentions  of its
drafters." ' " Davis County Solid Waste Management  v. United States
EPA, 101 F.3d 1395, 1405 (D.C. Cir. 1996)  (quoting United States v.
Ron Pair Enters., Inc., 489 U.S.  235, 242 (1989) (quoting Griffin v.
Oceanic Contractors, Inc.,  458 U.S. 564, 571 (1982))).


For the preceding reasons, we grant Emerald's petition for  review,
reverse the Commission's 50.11(b) "significant and  substantial"
determination and remand for appropriate ad- ministrative action.


So ordered.


Randolph, Circuit Judge, concurring: Because "the doc- trine of stare
decisis is of fundamental importance to the rule  of law," Welch v.
Texas Dep't of Highways & Pub. Transp.,  483 U.S. 468, 494 (1987), our
disposition of this case should  have begun with a citation to F.3d
and there it should have  ended.


Today's majority opinion holds that under s 104(d)(1) of  the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.  s 814(d)(1), there may
be "a 'significant and substantial'  finding for violation only of a
mandatory health or safety  standard." Maj. op. at 3. Secretary of
Labor v. FMSHRC,  111 F.3d 913, 917 (D.C. Cir. 1997), held the same:


As we read [s 104(d)(1)], the critical words are "such  violation is of
such nature." A "significantly and sub- stantially" finding may be
made only after an authorized  representative has found a "violation"
of mine safety and  health regulations.... By focusing the
decisionmaker's  attention on "such violation" and its "nature,"
Congress  has plainly excluded consideration of surrounding condi-
tions that do not violate health and safety standards.


This was not dictum. It was a necessary ground for the  decision,
leading us to reject the argument that in making an  "S & S" finding,
the Secretary could consider violations of  something other than a
mandatory health or safety standard.  As such, Secretary of Labor v.
FMSHRC should have been  treated, by the Commission and by this court,
as conclusive.