*1 drew the Commission Where mission’s. MINING policy decision. COAL to a FREEMAN UNITED
line amounted Petitioner, COMPANY, power to draw surely had Commission like on one side—those line, those giving v. un exclusivity they did not have American — AND MINE SAFETY FEDERAL those on the other regime, and prior der the COMMISSION HEALTH REVIEW Florida growth. slow option of side Cf. Secretary Labor, Respondents. FCC, 28 v. Communications Cellular Mobil (D.C.Cir.1994). Between F.3d 96-1185, 96-1186. Nos. rulemaking and proposed notice Appeals, States Court United other rule, may have been well there final Columbia Circuit. District of could have chosen. the Commission dates concluding legal no basis can see But we January Argued October other than some date 11, 1997. Decided March preferable. Those clearly have been would is, earlier, that those filed who like American grandfathering, gained the benefit
who be held to notice that would They may period.
eight-month construction that the Com speculated have
nevertheless the benefit of slow- offer them would
mission purpose of the Commission’s
growth, but If speculation. to deter drawing was
line slow-growth time frame believed
American only to withdraw its necessary, it had the final them after
applications and refile issued, losing grandfathering’s thereby
rule exclusivity gaining the ad
guarantee of constructing system over a
vantage of
three-year period. con Commission argument, oral
At petition for reconsid that American’s
ceded judicial review petition for and its
eration Los An eight-month deadline. tolled Cf. FCC, 70 Partnership
geles Ltd. SMSA (D.C.Cir.1995). 1358, 1359-60 we While
F.3d review, we as petition for
deny American’s will honor its conces
sume Commission
sion.
So ordered. *2 IL,
Richard Elledge, Chicago, R. argued cause, briefs, petitioner and filed the for Mining Company. Freeman United Coal Timothy Biddle, argued cause, M. for petitioners Merrifield Neal and James Yan- cik, Means, with whom Thomas C. Washin- DC, gotn, was on the briefs. Rosenbluth, Robin A Attorney, U.S. De- Labor, partment argued cause, respondents, McAteer, with whom J. Davitt Labor, Acting Sohcitor of and W. Christian Schumann, Counsel, were on brief. Nor- Gleichman, DC, Washington, man M. Federal Safety Commission, Mine and Health Review entered an appearance. added). Dufek, The Federal Mine A. Robert Buscemi and
Peter Review Commission brief, Health ami- DC, were on Washington, “Commission”) (“FMSHRC” has defined Asso- Operator’s Coal curiae Bituminous cus 110(c) to include “knowledge” under ciation, Inc. having knowledge and “reason actual both *3 EDWARDS, Judge, WALD Chief Before: The condition. of a violative know” SENTELLE, Judges. Circuit liability under also FMSHRC has held 110(c) requires “aggravated conduct” section Judge by filed Chief Opinion for the Court find “ordinary negligence.” We rather than EDWARDS. to be rea interpretation of the statute Chevron permissible. See sonable part in filed Circuit dissenting Opinion Inc. v. Natural Resources U.S.A. Defense Judge WALD. 843, Council, Inc., 837, 104 467 S.Ct. U.S. EDWARDS, Judge: T. Chief HARRY (1984). 2781-82, In 2778, 694 the 81 L.Ed.2d however, case, find the ALJ did not instant employees were four This case arose when “knowingly” vio that Yancik and Merrifield following collapse of section injured the rather, 77.200; focused on a § the ALJ lated plant preparation walkway in a coal cement “high negligence.” On concept of nebulous Coal Freeman United by petitioner owned hand, no rea we can discern the record at (“Freeman”). The Company Mining finding that Yancik or for a sonable basis the steel corrosion of resulted severe safety “knowingly authorized” the Merrifield walkway. An Admin- supporting the beams violation, “aggravat they engaged in or that (“ALJ”) found Judge Law istrative Therefore, we conclude ed conduct.” supervisors peti- its and two of Freeman — finding “high negligence”— ALJ’s the Merrifield— and Neal Yancik tioners James support a it means —cannot whatever on their penalties based liable for civil 110(c). According liability under section (1996), § 77.200 which of 30 C.F.R. violation petitions ly, grant we Yancik and Merrifield’s structures, enclo- requires “[a]ll findings the of indi for review and reverse (including sures, custom other facilities or liability by FMSHRC. vidual good in ... be maintained preparation) coal injuries prevent repair to accidents BackgRound employees.” I. 110(a) Act, operates Orient Mine No. 6 Freeman of the Mine section Under Waltonville, 820(a)- original coal (1994), operator of near Illinois. U.S.C. mine, any plant where the preparation viola- at mine faces strict coal occurred, was collapse at issue in this case mandatory safety Free- standard. tion of a prepara- In a new coal § 77.200 is un- built in 1968. argues that 30 C.F.R.
man imme- plant claim tion the mine constitutionally vague, we find this constructed diately adjacent plant. old The old regulation is to the Although the cited meritless. and continued to be enough pro- plant standing was left admittedly general, is clear it conjunction in requires operations it used for certain vide notice of the conduct Appendix Moreover, case, facilities. Joint plain it is with the new See in this prohibits. (“J.A.”) had notice of 58-59. Freeman from the record that in its and the problem a corrosion opera- plant’s Because of the nature result, Free- posed. it As a hazard tions, framing and beams the steel columns of its it was unaware man cannot claim that be, been, plant had and continued the old in- structural responsibility to maintain subject J.A. 59. pervasive See corrosion. corrosion. tegrity plant against of its conveyor Following collapse of a belt Act, pro- began Freeman a rehabilitation of the Mine Under part of this 820(c) (1994), gram plant. old As corporate U.S.C. engineering program, Freeman hired the vio- agents personally liable for are authorized, to assess the firm of Roberts & Schaefer they “knowingly or- lation facility. No- integrity On dered, violation.” Id. structural [the] or carried out 30, 1989, Roberts & Schaefer vember issued ment at Freeman. See Tr. at 408. The report. Although its engineering Roberts & Schaefer department reported also that, majority cases, found enough Operations Vice President for —Merrifield— sup- responsible metal remained the steel members to who was for prioritizing repairs, port approving plant, budgets reduced loads the old see Gov- implementing the re- habilitation reprinted program ernment Exhibit 3 at in Exhib- for the plant. See its, I, report Tr. at Volume cautioned that There was no evidence that “[a]mong delayed Merrifield ever repairs items that need immediate at- recom- mended tention are the engineering department beams and columns where holes that he ever punched hammer,” department or can be denied the any exist out with a re- quested id. resources to report plant. at 3. The also maintain made clear that fact, record upon were “based showed a visual in- between 1989 *4 1993, and “[ejxtent Freeman spection,” spent and it substantial warned that the sums of of money to maintain plant. the old safety deterioration and See actual of Re- [the] struc- spondents’ 13, Exhibit Exhibits, reprinted ture cannot be without determined extensive Volume I. measuring, testing, and calculation.” Id. at report 5. The identified a specific number of 8, 1993, On June a section of concrete repair, that needed areas did not mention walkway plant in the collapsed, old seriously area at issue in this case. injuring four employees Freeman who were thrown onto the floor seventeen feet below. Freeman repairs suggested undertook the An investigation by the Mine & by the Roberts & report Schaefer and had (“MSHA”) Health Administration concluded substantially completed specific work on the that the by was caused the advanced report by mentioned in items mid-1990. deterioration of a supporting beam the walk- (“Tr.”) Hearing 482-83, See Transcript way. 13, See 14, Government Exhibits re- Exhibits, reprinted in II. In Volume addi- printed Exhibits, Volume I. It is undis- tion, Freeman an ongoing pro- established puted particular that that beam had never gram inspection and rehabilitation at the been identified as needing repair by either Inspections old plant. were by carried out Yaneik, Roberts & Schaefer or nor had it Yaneik, Manager Quality Freeman’s Con- been identified as a during hazard eleven trol Preparation Maintenance, and Plant who inspections, MSHA nine state inspec- reported on his to the Vice Presi- tions, and six inspections union conducted in Operations dent of and others. From Octo- year prior collapse. See Tr. at on, ber 1991 Operations the Vice President of 207, 434, 513-15, 537, 552-53, 600-01.
was Merrifield. Yaneik claims that he was in Freeman was cited violation of plant 30 every old almost week and conduct- “[ajll C.F.R. provides 77.200 which ed formal quarterly on a basis. structures, enclosures, or 387, other facili- See Tr. at 415. Reports inspec- of his (including ties preparation) custom coal tions, shall evidence, introduced into were dated good be maintained in repair prevent to acci- 1987; March, May, October and December injuries employees.” dents and to After a 1988; 1989; January, October, March and hearing, the ALJ upheld the citation and 1990; February, August, December and De- imposed $10,000 penalties civil against 1991; 1992; March cember June and and Freeman, $5,000 Merrifield, against Respondents’ 2, March 1993. See Exhibit $4,000 against Yaneik. Petitioners were de- reprinted in Exhibits I. Volume Yancik’s in- and, therefore, nied review the FMSHRC spections consisted survey of visual 8, the ALJ’s decision May became final on plant testing structure with a any hammer steel appeared beams that to be corroded. See Tr. at 415. II. Disoussion mining is a engineer, Yaneik but not a A. Freeman engineer. structural See Tr. at 383. As a result, the final regarding determinations 110(a) re- parties agree pairs engineering depart- made the Mine Act imposes strict
362 employ- injuries to prevent accidents and of a any violation operators
coal mine See Western ees. safety standard. mandatory 711, FMSHRC, F.2d Fuels-Utah, 870 v. Inc. regula- § 77.200. find that 30 C.F.R. We Asarco, Inc.-Northwest (D.C.Cir.1989); 716 sufficiently specific provide notice tion was FMSHRC, F.2d 868 Dept. v. Mining ern required it of the conduct that petitioners Cir.1989). (10th argues, 1195, 1197 Freeman found, plain As the ALJ prohibited. allegedly however, it standard requirement meaning of the standard’s 77.200, violated, contravenes 30 C.F.R. prevent acci- be “maintained” structures it is unconstitu process clause because due injuries structures like is that dents tionally vague. “ in state of ‘[kept] preparation due satisfy constitutional order to efficiency[,] [kept] good or- ... repair or ” must be regulations requirements, process [,] do preserved]’ ... or so der give regulated parties sufficiently specific hazard- to a condition not deteriorate they require conduct notice of the adequate (citing J.A. 67 ous. Third New Webster’s City Rock Grayned v. prohibit. See 1362 DICTIONARY,UNABRIDGED INTERNATIONAL 2294, 2298- 92
ford, 408 U.S. S.Ct. (1971); A Mining, Dictionary Mineral, (1972); 222 Elec. Co. General 33 L.Ed.2d (1968); Terms 675 BlaoK’s and Related (D.C.Cir. F.3d 1328-29 ed.1979)). (5th EPA Diotionary Law OSHRC, Co., 1995); Inc. v. Fox& Gates *5 reasonably prudent person rec- Any would (D.C.Cir.1986). 154, courts The F.2d 156 a allowing supporting steel beams ognize that however, reg “specific recognized, have corrode and deteriorate to all of the begin to cover ulations cannot failure to main- collapse constitutes a point of ... which em variety of conditions infinite Indeed, the facility good repair. in tain a face,” “[b]y requiring must ployees recognized clear that Freeman record makes specific would regulations [courts] to too be prepara- obligation to ensure that the allowing large loopholes con opening up be structurally despite the tion sound regulated escape duct which should be plain lan- Because the ongoing corrosion. Ray Welding Co. v. regulation.” Evers gives notice of what it guage of 77.200 fair (6th Cir.1980); OSHRC, 726, 625 F.2d 730 requires, regulation is not unconstitution- 110, at 92 S.Ct. Grayned, accord 408 U.S. ally vague. regulations not (indicating that need 2300 certainty” or “meticu “mathematical achieve may embody instead specificity,” lous B. Yancik and Merrifield (internal “flexibility reasonable breadth” pro Act of the Mine Section omitted)). regula Accordingly, quotations corporate operator whenever a vides satisfy process due so tions will be found to standards, “any di or its violates Act sufficiently specific that a long they are as rector, officer, knowingly agent ... who
reasonably person, with the prudent familiar ordered, authorized, or carried out vio such regulations are meant to ad conditions the may 30 U.S.C. lation” be held liable. objectives regulations are dress and the 820(c). challenge Yancik and Merrifield achieve, warning of meant would have fair they “knowingly” finding that the ALJ’s regulations require. See Utah what in this caused or a violation permitted Labor, Secretary 951 Light Power & Co. ease, merely arguing that the ALJ found (10th 292, Cir.1991); F.2d n. 11 Vanco 295 “high negligence,” that the negligence or Donovan, 410, Constr., 412- Inc. v. 723 F.2d finding of cannot record evidence (5th Cir.1984); Welding, Ray 625 13 Evers claim knowing At the heart violation. F.2d at 732. interpre dispute over the Commission’s is a pro- regulation at in this case The issue “knowingly” in section tation of the term vides, entirety: in its 110(c). structures, enclosures, All or other term has defined the (including prepara- coal Commission custom facilities tion) repair “knowingly” as follows: good in be maintained shall
303
“Knowingly,”
Act,
may
as used
convey any
does
of a number of meanings.
any meaning of
have
bad faith or evil This court has found the
“knowingly”
term
purpose
meaning
or criminal intent.
Its
include “actual knowledge,”
igno
“deliberate
law,
rather
used
contract
it
where
rance,” and
disregard.”
“reckless
See Unit
knowing
having
means
reason to know.
Management
Inc.,
ed States v.
Corp.
TDC
24
person
A
has reason to know when he has
292,
(D.C.Cir.1994)
F.3d
297-98
(interpreting
person
such information as would lead a
“knowingly”
meaning
within the
of the False
exercising
acquire
reasonable
care to
Act).
Claims
Other courts have also found
question
of the fact in
or to
that “knowingly” encompasses more than ac
infer its existence.
See,
tual knowledge.
e.g., United States v.
Secretary
Richardson,
Labor v.
3 DiSanto,
(1st
1238,
Cir.1996)
86 F.3d
1257
8,
(1981)
added,
F.M.S.H.R.C.
16
(noting that
meaning
of “knowledge” de
omitted),
quotations
aff'd,
internal
689 F.2d
pends upon context and that a continuum of
(6th Cir.1982).
632
Secretary
Accord
La
meaning stretches from “constructive knowl
Mines,
BethEnergy
bor v.
14 F.M.S.H.R.C.
edge” to
knowledge”
“actual
with various
(1992);
Secretary
1245
Labor v.
gradations between), petition
filed,
cert.
Constr.,
Warren
14
Steen
F.M.S.H.R.C.
(U.S.
12, 1996) (No.
ALJ liability. individual (“I of 77.200 find that the violations So ordered. high due to Respondents were WALD, Judge, dissenting part: Circuit tell, can far as we negligence_”). So concept that has rele- majority upholds Federal Mine “high negligence” is of the to the determination and Health Review Commission’s vance Commission”) imposed (“the once penalty interpretation to be amount of a civil incorporating See 30 C.F.R. a “con- “knowingly” determined. as has been word 100.3(d) (1996) negligence (degree knowledge” to know” or “reason structive —“no standard, negligence,” majority opinion “moderate negligence,” “low see Judge’s or “reckless negligence,” rejects Law negligence,” “high the Administrative formula); (“ALJ”) penalty peti- application factor that standard to disregard” one —is 100.5(h) (1996) (special assess- Yancik and Neal Merrifield. 30 C.F.R. tioners James amply if viola- may be demon- penalty ment of warranted Because I find that the record *7 “extraordinarily high degree of the ALJ did not err tion involved strates that is negligence,” know of negligence”). “High petitioners which had that reason these mitigating walkway cir- that without of apparently negligence dangerous condition the VIII, 100.3, cumstances, collapsed, portion see 30 C.F.R. tbl. I dissent an upon penalties permissible majority opinion is not a basis which that vacates may found hable agent imposed on them under section safety un- violating Safety Act of 1977. “knowingly” standard Mine and Federal Health 110(e) Act. of the Mine der section imposition of collapse led to the The which Merrifield was against sanctions Yancik and inquiry is Yancik proper whether occur in Orient No. 6 not the first to had “reason know” or Merrifield knew years preparation plant earli- of the Mine’s old of the hazardous level deterioration —six just sixty i.e., conveyor collapsed, belt had collapsed, er whether beam that tragic beam that caused knowledge feet from the or constructive either had actual (“J.A.”) at Appendix in 1993. Joint does accident The record of the violative condition. time, Yancik was the At that James did. support conclusion either not Prep- Quality and plant’s Manager of Control Certainly knew of the risk both men Maintenance, reporting to Neal aration plant in the Plant. beams old support corrosion of Merrifield, Superintendent. This they the Mine instability. But could cause structural er- starkly demonstrated con- earlier addressing responsibly that risk were oding atmosphere Report, effect that the corrosive ongoing process R&S and the plant exposed obviously inside the had on metal struc- corrosion taking place between the tures, and led the Freeman United Coal Min- collapses first and second plant’s —that (“the ing Company Company”) to Manager undertake Quality Super- Control and Mine long-term program. rehabilitation visor had no “reason to know” that a beam sixty away feet from the one that failed in years collapse, two after that first 1987 could fail in if replaced it were not the Mine and Health Administration reinforced, tested, or even in the interim. (“MSHA”) Company advised the to hire a majority opinion See at 364. Knowing that a plant’s consultant to evaluate the structural nearby collapsed beam had and that its fail- Company condition. The hired the Roberts ure had been caused a corrosive atmo- (“R&S”), Company and Schaefer firm sphere which plant’s affected all of the designed plant, to conduct the evalu- beams, having expressly and been warned engineer, accompanied by ation. An R&S against relying inspections, on mere visual Yaneik, plant, toured the and on November Yaneik and Merrifield ample had reason to 80, 1989, Report R&S issued its to Deter- test supported platforms those beams that Integrity Existing Structural Coal which miners required were every to walk Preparation Plant for Freeman United Coal day. And the clearly record shows had (“R&S Company Report”), Orient No. 6 Mine they tested eventually the beam that failed in which both Yaneik and Merrifield received 1993, they would have discovered that it was page The second read. text of this Thus, unsafe. See Transcript at 245. Yaneik report following warning: included the and Merrifield had the “reason to know” “Among the items that need immediate at- required 110(c). under section tention are beams and where holes columns 'punched exist or can be out with a hammer My colleagues’ claim that the record can- One, (emphasis Exhibits Volume Tab at 3 conclusion, support majority see added). page The fourth and final text reit- opinion incomprehensible me; point inspections erated the that visual alone they appear also that even if assert adequately could not establish the Yaneik and Merrifield did have constructive metal beams: risk, knowledge they of a “addressing Although appears structure to be sound in responsibly by that risk conducting regular general these upon are based repairs.” Id. On this issue inspection. a visual No load tests or calcu- note, first, I incontrovertibly the record performed lations were to determine actual shows Yancik’s and Merrifield’s con- stresses. Extent of deterioration and ac- structive involved a risk of a far tual structure cannot be deter- particularized more severe and sort than the mined measuring, without extensive test- majority’s vague amorphous reference to ing, and calculation. a “risk that corrosion of beams in the added). Id. at 5 There followed a instability” could cause structural recommendations, list of of which the first suggests. Id. Even had never read “[p]ower cleaning, priming, tool *8 Report, they R&S and even could not steel, painting prevent of all to further dete- charged knowledge with the that six rioration.” Id. years’ away worth of corrosion would eat years For conveyor six after the 1987 substantially plant’s belt all exposed of the and collapse, years and for beams, three and a half unrepaired after metal Yaneik and Merri- Yaneik explicit and Merrifield had read significant field still had to realize the risk of warnings in the Report, dangerous R&S both of collapse by them a caused the failure of permitted walkways daily beam, miners to use exposed that a corroded metal based on the supported by exposed just metal beams that fact already such a had Second, had never been tested to establish their impor- occurred 1987. and more safe- ty. history, I tantly, Given cannot fathom how I inspection fail to see how the visual majority failed, reaches the conclusion—in the of the beam that later combined with face collapse, warnings of the earlier repair replacement and of other corroded ag- Secretary Respondents because any conclu- plant, can in the
beams steps ignoring the clear gravated conduct to let miners “responsible]” that it was sion miners.”) protect the needed stood seventeen platform which walk on added). sup- floor and was a concrete feet above untested, exposed met- unrepaired by ported strongly sum, I that the record believe in the ma- my colleagues If Id. al beams. clearly AL articulated supports the J’s old, decaying an over to drive jority were petitioners Yancik liability of regarding the mile-deep gorge, I doubt bridge spanning Merrifield, dissent respectfully and I knowledge in the comfort take would majority opinion portion from authority repairing all bridge findings of their reversing the Commission’s time, simply at a bridges one its liability. yet, or fixing this one gotten around hadn’t it was whether to determine testing it even
safe. the fact that majority refers to
Next the by conducted inspections [were]
“numerous union,” MSHA, regulators, and state any immediate risk whom identified
none of inspec- collapse. Id. But these of another SIMPKINS, Appellant, O. Cuthbert array informa- privy tors were Merrifield, by Yancik tion held intimate expertise and lacked the OF COLUMBIA DISTRICT enjoyed these preparation of the old GOVERNMENT, al., et Furthermore, we officials. veteran Appellees. provid- Congress’ intent would contravene employees of mine No. 94-5243. ing punishment “knowing” violations involved in Appeals, United States Court permit mine offi- were we requirements District of Columbia Circuit. conducted rely cials to insulate themselves outside authorities Argued Dec. liability. 14, 1997. Decided March majority rests basis on which The last finding of rejection of ALJ’s The ma the ALJ said. simply ignores what find that
jority that “the ALJ did not asserts ‘knowingly’ violated 30 Merrifield
Yancik or But he did. at 364. 77.200.” Id.
C.F.R. Mining, v. Freeman United Coal
See MSHA (1996) (“I find ‘know and Yancik
Respondents Merrifield ordered, authorized, out’ a or carried
ingly 77.200.”). ma
violation of 30 C.F.R. could
jority the ALJ then contends liable Yancik and Merrifield
properly find only if to know” standard
under the “reason “aggravated con guilty of
he found them - (quoting Majority opinion at duct.” *9 Mines, BethEnergy
MSHA v. (1992)). He did
F.M.S.H.R.C. Min Freeman United Coal too. See (“The penalties
ing, at 458 higher penalties proposed
are than the