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Cannelton Industries Brief, on petition for review of a decision

ORAL ARGUMENT SCHEDULED FOR
FEBRUARY 18, 2005

UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
____________________________________________________

No. 04-1126
____________________________________________________

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

Petitioner,

v.

CANNELTON INDUSTRIES, INC.,

and

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,

Respondents.

____________________________________________________

ON PETITION FOR REVIEW OF A DECISION
OF THE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
____________________________________________________

BRIEF FOR THE SECRETARY OF LABOR
____________________________________________________

HOWARD M. RADZELY
Solicitor of Labor

EDWARD P. CLAIR
Associate Solicitor

W. CHRISTIAN SCHUMANN
Counsel, Appellate Litigation

JERALD S. FEINGOLD
Attorney

U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard
Suite 2200
Arlington, Virginia 22209-2296
Telephone: (202) 693-9335

CERTIFICATE AS TO PARTIES, RULINGS,
AND RELATED CASES

    (A)    Parties and Amici. The parties who appeared before the Federal Mine Safety and Health Review Commission ("the Commission") are the Secretary of Labor and Cannelton Industries, Inc. The parties in this Court are the Secretary of Labor, Cannelton Industries, Inc., and the Commission. No amici appeared before the Commission, and there are no amici in this Court.

    (B)    Rulings Under Review. The Secretary of Labor seeks review of the decision of the Commission issued on March 12, 2004, in Cannelton Industries, Inc., FMSHRC Docket Nos. WEVA 2002-111-R and WEVA 2002-112-R, and reported at 26 FMSHRC 146 (March 2004).

    (C)    Related Cases. This case was not previously before this Court or any other court. Counsel is unaware of any related cases pending in this Court or any other court.

TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

TABLE OF AUTHORITIES

GLOSSARY OF ABBREVIATIONS AND ACRONYMS

STATEMENT REGARDING JURISDICTION

STATEMENT OF THE ISSUE PRESENTED

PERTINENT STATUTES AND REGULATIONS

STATEMENT OF THE CASE

A.    Nature of the Case

B.    Course of Proceedings and Disposition Below

STATEMENT OF FACTS

SUMMARY OF ARGUMENT

ARGUMENT

THE COMMISSION ERRED IN HOLDING THAT THE MANDATORY SAFETY STANDARDS AT 30 C.F.R. 75.360(a)(1), 75.360(a)(2), AND 75.360(b) PERMIT A "PUMPERS' EXAMINATION" TO BE SUBSTITUTED FOR A PRESHIFT EXAMINATION OF AREAS OF THE MINE CONTAINING ENERGIZED TROLLEY WIRES AND LOCATED BEYOND WHERE PUMPERS WORK OR TRAVEL

A.    Introduction

B.    Applicable Principles and Standard of Review

C.    The Commission Ignored the Plain Meaning of the Applicable Standards

D.    In Any Event, the Secretary's Reading of the Applicable Standards Is Entitled to Acceptance Because It Is Reasonable

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

TABLE OF AUTHORITIES

*    Authorities upon which we chiefly rely are marked with asterisks.

Cases:

Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301 (D.C. Cir. 2000)

Bailey v. United States, 516 U.S. 137 (1995)

Bell Atlantic Telephone Companies v. FCC, 131 F.3d 1044 (D.C. Cir. 1997)

Brennan v. OSHRC, 491 F.2d 1340 (2d Cir. 1974)

City of Tacoma, Washington v. FERC, 331 F.3d 106 (D.C. Cir. 2003)

Chao v. Double JJ Resort Ranch, 375 F.3d 393 (6th Cir. 2004)

*    Cold Spring Granite Co. v. FMSHRC, 98 F.3d 1376 (D.C. Cir. 1996)

Donovan on behalf of Anderson v. Stafford Construction Co., 732 F.2d 954 (D.C. Cir. 1984)

*    Energy West Mining Co. v. FMSHRC, 40 F.3d 457 (D.C. Cir. 1994)

ExxonMobil Gas Marketing Co. v. FERC, 297 F.3d 1071 (D.C. Cir. 2002), cert. denied, __ U.S. __, 124 S.Ct. 48, 157 L.Ed.2d 249 (2003)

Exportal LTDA v. United States, 902 F.2d 45 (D.C. Cir. 1990)

*    Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997)

Independent Bankers Ass'n of America v. Farm Credit Administration, 164 F.3d 661 (D.C. Cir. 1999)

Local Union 7107, UMWA v. Clinchfield Coal Co., 124 F.3d 639 (4th Cir. 1997), cert. denied, 523 U.S. 1006 (1998)

*    Martin v. OSHRC, 499 U.S. 144 (1991)

Motion Picture Ass'n of America, Inc. v. FCC, 309 F.3d 796 (D.C. Cir. 2002)

Natural Resources Defense Council, Inc. v. EPA, 907 F.2d 1146 (D.C. Cir. 1990)

O'Toole v. United States, 295 F.3d 1029 (9th Cir. 2002)

Pfizer, Inc. v. Heckler, 735 F.2d 1502 (D.C. Cir. 1984)

RAG Cumberland Resources LP v. FMSHRC, 272 F.3d 590 (D.C. Cir. 2001)

*    Russello v. United States, 464 U.S. 16 (1983)

Secretary of Labor on behalf of Bushnell v. Cannelton Industries, 867 F.2d 1432 (D.C. Cir. 1989)

*    Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1 (D.C. Cir. 2003)

*    Secretary of Labor v. Ohio Valley Coal Co., 359 F.3d 531 (D.C. Cir. 2004)

Secretary of Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110 (4th Cir. 1996)

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)

Udall v. Tallman, 380 U.S. 1 (1965)

United States v. Campos, 217 F.3d 707 (9th Cir.), cert. denied, 531 U.S. 952 (2000)

U.S. Telecom Ass'n v. FCC, 227 F.3d 450 (D.C. Cir. 2000)

Statutes and Codes:

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, et seq. (1977)

Section 2, 30 U.S.C. 801
Section 2(c), 30 U.S.C. 801(c)
*    Section 101, 30 U.S.C. 811
Section 101(a)(9), 30 U.S.C. 811(a)(9)
Section 103, 30 U.S.C. 813
Section 103(a), 30 U.S.C. 813(a)
Section 104, 30 U.S.C. 814
Section 104(a), 30 U.S.C. 814(a)
Section 104(d), 30 U.S.C. 814(d)
Section 105, 30 U.S.C. 815
Section 105(a), 30 U.S.C. 815(a)
Section 105(d), 30 U.S.C. 815(d)
Section 106, 30 U.S.C. 816
Section 106(a), 30 U.S.C. 816(a)
Section 106(b), 30 U.S.C. 816(b)
Section 110(a), 30 U.S.C. 820(a)
Section 113, 30 U.S.C. 823
Section 113(d), 30 U.S.C. 823(d)
Section 113(d)(2)(A), 30 U.S.C. 823(d)(2)(A)

30 C.F.R. Part 75
30 C.F.R. 75.2
*    30 C.F.R. 75.360
*    30 C.F.R. 75.360(a)(1)
*    30 C.F.R. 75.360(a)(2)
*    30 C.F.R. 75.360(b)
30 C.F.R. 75.360(b)(1)
30 C.F.R. 75.360(b)(2)
30 C.F.R. 75.360(b)(3)
30 C.F.R. 75.360(b)(4)
30 C.F.R. 75.360(b)(5)
30 C.F.R. 75.360(b)(6)
*    30 C.F.R. 75.360(b)(7)
30 C.F.R. 75.360(b)(8)
30 C.F.R. 75.360(b)(9)
30 C.F.R. 75.360(b)(10)
30 C.F.R. 75.361
30 C.F.R. 75.364
30 C.F.R. 75.364(b)
30 C.F.R. 100.3

Federal Register

*    61 Fed. Reg. 9764 (March 11, 1996)

GLOSSARY OF ABBREVIATIONS AND ACRONYMS

Cannelton
Commission
J.A.
Mine Act or Act
Secretary
Tr.

Cannelton Industries, Inc
Federal Mine Safety and Health Review Commission
Joint Appendix
Federal Mine Safety and Health Act of 1977 or Act
Secretary of Labor
Transcript

STATEMENT REGARDING JURISDICTION

    The Court has jurisdiction over this proceeding for review of a decision of the Federal Mine Safety and Health Review Commission ("the Commission") under Section 106 of the Federal Mine Safety and Health Act of 1977 ("the Mine Act" or "the Act"), 30 U.S.C. 816. The Commission had jurisdiction over the matter under Sections 105(d) and 113(d) of the Mine Act, 30 U.S.C. 815(d) and 823(d).

    The decision of the administrative law judge in this case was issued on July 10, 2002. Pursuant to Section 113(d)(2)(A) of the Mine Act, 30 U.S.C. 823(d)(2)(A), the Secretary of Labor ("the Secretary") filed a timely petition for discretionary review of the judge's decision with the Commission on August 9, 2002. The Commission granted the petition for discretionary review on August 15, 2002. The Commission issued its decision on March 12, 2004. The Secretary filed a timely petition for review of the Commission's decision with the Court on April 12, 2004.

    The Secretary has standing to appeal the Commission's decision under Section 106(b) of the Mine Act, 30 U.S.C. 816(b). The Commission's decision represents a final Commission order that disposes of all of the parties' claims.

STATEMENT OF THE ISSUE PRESENTED

    Whether the Commission erred in holding that the mandatory safety standards at 30 C.F.R. 75.360(a)(1), 75.360(a)(2), and 75.360(b) permit a "pumpers' examination" to be substituted for a preshift examination of areas of the mine containing energized trolley wires and located beyond where pumpers work or travel.

PERTINENT STATUTES AND REGULATIONS

    Pertinent statutes and regulations are set forth in the bound Addendum to this brief beginning at page A-1.

STATEMENT OF THE CASE

A.    Nature of the Case

    The Mine Act was enacted to improve safety and health in the Nation's mines. 30 U.S.C. 801. In enacting the Mine Act, Congress stated that there was "an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation's * * * mines * * * in order to prevent death and serious physical harm, and in order to prevent occupational diseases originating in such mines[.]" 30 U.S.C. 801(c).

    Sections 101 and 103 of the Mine Act authorize the Secretary, acting through the Mine Safety and Health Administration ("MSHA"), to promulgate mandatory safety and health standards for the Nation's mines and to conduct regular inspections of those mines. 30 U.S.C. 811 and 813. MSHA inspectors regularly inspect mines to assure compliance with the Mine Act and MSHA standards. 30 U.S.C. 813(a).

    Section 104 of the Mine Act provides for the issuance of citations and orders for violations of the Mine Act or MSHA standards. 30 U.S.C. 814. If an MSHA inspector discovers a violation of the Mine Act or a standard during an inspection or an investigation, he must issue a citation or an order pursuant to Section 104(a) or 104(d) of the Mine Act. 30 U.S.C. 814(a) and 814(d). If the inspector finds that the violation is "significant and substantial" or the result of the mine operator's "unwarrantable failure to comply," he must include such findings in the citation. 30 U.S.C. 814(d). [1] Sections 105(a) and 110(a) of the Mine Act provide for the proposal and assessment of civil penalties for violations of the Mine Act or MSHA standards. 30 U.S.C. 815(a) and 820(a).

    The Commission is an independent adjudicatory agency established under the Mine Act to provide trial-type administrative hearings and appellate review in cases arising under the Mine Act. 30 U.S.C. 823. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 204 (1994); Secretary of Labor on behalf of Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 113-14 (4th Cir. 1996). A mine operator may contest a citation, order, or proposed civil penalty before a Commission administrative law judge. 30 U.S.C. 815 and 823. Any person adversely affected or aggrieved by an administrative law judge's decision may seek review by filing a petition for discretionary review with the Commission. 30 U.S.C. 823. Whether to direct review is committed to the Commission's discretion. Ibid. Any person adversely affected or aggrieved by a Commission decision, including the Secretary, may obtain review by filing a petition for review with an appropriate court of appeals. 30 U.S.C. 816(a) and (b).

    The mandatory safety standards at issue in this case are 30 C.F.R. 75.360(a)(1), 75.360(a)(2), and 75.360(b). Section 75.360(a)(1) states:

Except as provided in paragraph (a)(2) of this section, a certified person designated by the operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground. No person other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed for the established 8-hour interval. * * *.

30 C.F.R. 75.360(a)(1). Section 75.360(a)(2) states:

Preshift examinations of areas where pumpers are scheduled to work or travel shall not be required prior to the pumper entering the areas if the pumper is a certified person and the pumper conducts an examination for hazardous conditions, tests for methane and oxygen deficiency and determines if the air is moving in the proper direction in the area where the pumper works or travels. The examination of the area must be completed before the pumper performs any other work. * * *

30 C.F.R. 75.360(a)(2). The subsections of Section 75.360(b) specifically describe the areas of the mine in which a preshift examination must be conducted. Some of the areas that must be examined are described as areas in which miners are scheduled to work or travel (see Sections 75.360(b)(1)-(b)(3), (b)(8), and (b)(10)); others are not (see Sections 75.360(b)(4)-(b)(7) and (b)(9)). [2] Section 75.360(b)(7) states that an examination must be conducted in "[a]reas where trolley wires or trolley feeder wires are to be or will remain energized during the oncoming shift." 30 C.F.R. 75.360(b)(7).

    The issue in this case is whether the "pumpers' exception" to the preshift requirement set forth in Section 75.360(a)(2) relieves the operator from having to conduct a preshift examination under Section 75.360(a)(1) of areas where miners who conduct maintenance on remotely located pumps ("pumpers") are not scheduled to work or travel but which contain energized trolley wires.

B.    Course of Proceedings and Disposition Below

    This case arose when MSHA issued Cannelton Industries, Inc. ("Cannelton") a citation for violating a mandatory safety standard requiring that a preshift examination be conducted before miners work or travel underground. Ex. G-1 (J.A. 5). The operator contested the citation, and the case was assigned to an administrative law judge of the Commission.

    In his decision of July 10, 2002, the judge vacated the citation alleging that Cannelton violated 30 C.F.R. 75.360(a)(1) when its pumpers performed their work without the mine having been subjected to a preshift examination. 24 FMSHRC at 708-10 (J.A. 77-79). The judge concluded that, under the "pumpers' exception" set forth in 30 C.F.R. 75.360(a)(2), Cannelton was not required to conduct a preshift examination of the mine as long as the pumpers conducted a "pumpers' examination" of the area where they worked and traveled. 24 FMSHRC at 709-10 (J.A. 78-79). Noting that "the pumper is the only [person] going into the mine" and that Section 75.360(a)(2) requires the pumper to examine "the area where he travels and works," and finding that "from a practical standpoint, it makes little sense to double the exposure to possible hazards in the mine by requiring another examiner to [conduct a] preshift [examination of] those areas where the pumper is going to travel and work," the judge concluded that the "pumpers' exception" provides the same "safeguards that a preshift examination would provide." 24 FMSHRC at 709-10 (J.A. 78-79). On that basis, the judge vacated the citation. The Secretary appealed the judge's decision to the Commission.

    In its decision of March 12, 2004, the Commission, by a three-member majority, [3] affirmed the decision of the administrative law judge that the "pumpers' exception" to the preshift examination requirement applies when only certified pumpers enter the mine and conduct examinations where they work or travel, regardless of the fact that there may be unexamined hazards originating in areas of the mine where the pumpers do not work or travel. 26 FMSHRC 146 (J.A. 82). The majority held that the "plain meaning" of 30 C.F.R. 75.360(a)(2) is that the preshift examinations required under 30 C.F.R. 75.360(b) "do not apply to certified pumpers" because certified pumpers "expressly do not have to conduct preshift examinations." 26 FMSHRC at 151-52 (J.A. 87-88).

    In addition, the majority quoted the sentence in 30 C.F.R. 75.360(a)(1) that states: "No person other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed for the established 8-hour interval." (Emphasis by the Commission majority). The majority reasoned that that sentence means that "a certified pumper does not need a preshift examination to enter or remain in the mine." 26 FMSHRC at 152 (J.A. 88).

    Finally, the majority, quoting language from the preamble to the rule, observed that "the preamble states on at least four occasions that the pumpers' examination is an alternative to, or may be performed in lieu of, a preshift examination." 26 FMSHRC at 152 (J.A. 88).

    In a dissenting opinion, Commissioner Jordan stated that "the distinct exception in section (a)(2), covering a particularized area (where pumpers work or travel), leaves the remaining mandate of section (a)(1) undisturbed." 26 FMSHRC at 156-57 (J.A. 92-93). [4] Commissioner Jordan concluded that the requirement of a preshift examination of areas containing energized trolley wires set forth in 30 C.F.R. 75.360(b)(7) remained in effect in the areas where the pumpers were not scheduled to work or travel because that requirement (unlike several other preshift examination requirements under Section 75.360(b)) applies regardless of whether miners are scheduled to work or travel in the area in question. 26 FMSHRC at 157 (J.A. 93).

    Commissioner Jordan also dissented from the majority's interpretation of the quoted language from 30 C.F.R. 75.360(a)(1). She stated that the majority's interpretation "creates a wholesale exception to the preshift requirement as it applies to certified mine examiners" and that, if that interpretation were accurate, "there would be no need for a pumpers' exception." 26 FMSHRC at 158-59 (J.A. 94-95). She concluded that the quoted language of Section 75.360(a)(1) "simply permits certified examiners to go underground to perform their preshift exams." 26 FMSHRC at 159 (J.A. 95).

    Finally, noting the record evidence of the hazards inherent in energized trolley wires and the safety concerns underlying the Secretary's preshift requirements, Commissioner Jordan found that "it would be incongruous if the Secretary had intended that hazards where pumpers work or travel would be discovered by the pumpers' examination, but that hazards in other parts of the mine, where pumpers do not go would remain unexamined and, in all likelihood, undetected." 26 FMSHRC at 159-60 (J.A. 95-96).

    On March 22, 2004, the Secretary filed a petition for reconsideration of the Commission's decision. The Commission majority denied the petition for reconsideration on April 2, 2004. On April 12, 2004, the Secretary filed a petition for review of the Commission's decision with this Court.

STATEMENT OF FACTS

    Cannelton operates the Shadrick (a/k/a Stockton) Mine, an underground coal mine in West Virginia. Tr. 438 (J.A. 68). On May 3, 2002, Cannelton idled the mine because its coal stockpiles had grown too large, placed the mine in a non-producing status, and laid off all rank-and-file miners. Tr. 422 (J.A. 65). At that time, Cannelton stopped conducting preshift and weekly examinations [5] at the mine. [6]

    To keep the mine from flooding, approximately 70 to 80 electric pumps were kept running and maintained. Tr. 107 (J.A. 24). The mine's electrical system, including a network of 300-volt trolley wires running a distance of three to four miles throughout the mine, was kept energized. Tr. 43,44,46,88,256-57,453-54 (J.A. 13, 14, 20, 39, 71). [7]

    On May 6, 2002, Cannelton began sending pumpers [8] (all of whom were certified foremen and electricians) underground to examine the pumps and the power centers (including some power centers not associated with any pumps). Tr. 56-60, 63-64, 146-47 (J.A. 15-16, 17, 30). On May 13 and 14, Cannelton's safety manager, Jack Hatfield, Jr., sent two pumpers, Jeffrey Styers and Dan Baker (both of whom were certified foremen and electricians) into the mine; neither preshift nor weekly examinations were conducted by those pumpers or by any other miner before the pumpers engaged in pumper activities. Tr. 35, 38, 41, 48, 106, 340, 342-43, 349-50, 443-44 (J.A. 11, 12, 1424, 54, 55, 56-57, 69). The pumpers were instructed to look for hazardous conditions in areas where they traveled. Tr. 445 (J.A. 69). Areas containing energized trolley wires beyond where the pumpers were scheduled to work or travel were not examined either before the pumpers were sent underground or during their work or travel. Tr. 375-76, 399, 445 (J.A. 59, 62, 69).

    On May 15, 2002, MSHA issued Cannelton two Section 104(a) citations alleging "significant and substantial" violations of 30 C.F.R. 75.360(a)(1) (failure to perform a preshift examination) and 75.364(b) (failure to perform a weekly examination) at the mine. Tr. 165-66 (J.A. 32-33); Exs. G-1, G-2 (J.A. 5, 6). [9]

SUMMARY OF ARGUMENT

    The issue in this case is whether MSHA properly cited Cannelton under Section 30 C.F.R. 75.360(a)(1) for failing to conduct a preshift examination of the areas of the mine containing energized trolley wires in accordance with 30 C.F.R. 75.360(b)(7) before allowing pumpers to proceed underground.

    The plain meaning of the "pumpers' exception" set forth in Section 75.360(a)(2), read both individually and in conjunction with related standards, compels the conclusion that although a "pumpers' examination" may be substituted for a preshift examination in areas where pumpers are scheduled to work or travel, the "pumpers' exception" does not relieve the mine operator of the obligation to conduct a complete preshift examination of other areas of the mine before pumpers enter the mine. The plain meaning reading of the standard is supported by the discussion of the "pumpers' exception" in the preamble to Section 75.360, which also indicates that the exception is limited to areas where pumpers are scheduled to work or travel. Fundamental principles of mine safety also support the plain meaning reading of the standard because that reading protects pumpers from hazards, such as fires triggered by energized trolley wires, that can originate in areas beyond where the pumpers are scheduled to work or travel but affect the pumpers where they work and travel.

    The Commission majority erred in its "plain reading" of the "pumpers' exception." The majority failed to appreciate that the fact that certified pumpers only have to examine those areas where they work or travel does not mean that someone else does not have to examine other areas of the mine for certain specified hazards that can affect the pumpers where they work and travel.

    The Commission majority also erred in focusing on language in Section 75.360(a)(1) that permits certified examiners to enter the mine in order to conduct a preshift examination prior to a preshift examination having been conducted. The majority read the language out of context and in a manner that is both illogical and safety-defeating.

    Finally, the Commission majority misread the preamble to Section 75.360 to support its reading of the "pumpers' exception" to the preshift requirement. The majority ignored the language in the preamble setting forth the geographical limitation on the "pumpers' exception" as it ignored the same language in Section 75.360(a)(2) itself.

    In any event, even if the Secretary's plain meaning reading of the "pumpers' exception" is not accepted and the controlling standards are determined to be ambiguous, the Secretary's interpretation should be accepted because it is an eminently reasonable and safety-promoting interpretation.

ARGUMENT

THE COMMISSION ERRED IN HOLDING THAT THE MANDATORY SAFETY STANDARDS AT 30 C.F.R. 75.360(a)(1), 75.360(a)(2), AND 75.360(b) PERMIT A "PUMPERS' EXAMINATION" TO BE SUBSTITUTED FOR A PRESHIFT EXAMINATION OF AREAS OF THE MINE CONTAINING ENERGIZED TROLLEY WIRES AND LOCATED BEYOND WHERE PUMPERS WORK OR TRAVEL

A.    Introduction

    The issue in this case is whether a preshift examination must be conducted in areas of an underground coal mine in which pumpers are not scheduled to work or travel but which contain energized trolley wires -- areas that normally must be examined before miners may enter the mine regardless of whether miners are scheduled to work or travel in those areas. The "pumpers' exception" is intended primarily to free preshift examiners (typically, section foremen) during periods of active mining from having to examine certain remote areas of the mine in which certified pumpers [10] are scheduled to work or travel but which, were it not for the presence of the pumpers, would not need to be examined in the course of a preshift examination. Tr. 318-19, 331-32 (J.A. 50, 53). As dissenting Commissioner Jordan recognized, the rationale of the "pumpers' exception" is to enable certified pumpers to conduct examinations in the remote areas where they are scheduled to work or travel instead of diverting the preshift examiner from his many safety responsibilities to conduct examinations in those areas before the pumpers can begin their work. See 26 FMSHRC at 160 (J.A. 96); 61 Fed. Reg. 9764, 9792 (March 11, 1996). In a typical scenario, the question of whether remote energized trolley wires would need to be examined by the pumper would not arise; the trolley wires would already have been examined by the preshift examiner during the course of his preshift examination.

    The circumstances of this case differ from the typical scenario. Because the mine in this case had been idled, no preshift examination of the mine had been conducted before the pumpers entered the mine. In failing to appreciate the need for the energized trolley wires to be examined before the pumpers could perform work in the mine under these circumstances, the Commission majority failed to recognize that the "pumpers' exception" set forth in 30 C.F.R. 75.360(a)(2) is geographically limited to those areas where pumpers "are scheduled to work or travel," and that a "pumpers' examination" may not be substituted for the preshift examinations otherwise required by 30 C.F.R. 75.360(a)(1) and 75.360(b) in other areas of the mine.

B.    Applicable Principles and Standard of Review

    If a regulation's meaning is plain, the regulation cannot be interpreted to mean something different from that plain meaning. Exportal LTDA v. United States, 902 F.2d 45, 50 (D.C. Cir. 1990); Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) (citing Udall v. Tallman, 380 U.S. 1, 16 (1965)). In determining whether a regulation's or a statute's meaning is plain, a court should apply all the traditional tools of construction, including both the particular regulatory language at issue and the language and design of the regulatory scheme as a whole. See City of Tacoma, Washington v. FERC, 331 F.3d 106, 114 (D.C. Cir. 2003), and Halverson v. Slater, 129 F.3d 180, 184 (D.C. Cir. 1997) (both involving construction of statutes). See also Secretary of Labor on behalf of Bushnell v. Cannelton Industries, Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989) (Courts must "give effect to the unambiguously expressed intent of Congress") (citation and internal quotation marks omitted). Plain meaning is to be determined, not by reading specific words in isolation, but by reading specific words in the context of related provisions. Bell Atlantic Telephone Companies v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997).

    If a regulation's meaning is not plain, a reviewing court should give deference to the interpretation of the agency entrusted with administering the regulation. Martin v. OSHRC, 499 U.S. 144, 148-49 (1991); Udall, 380 U.S. at 16-17; Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 5-6 (D.C. Cir. 2003); Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460-61 (D.C. Cir. 1994). More specifically, as this Court has repeatedly held, when the Secretary's and the Commission's interpretations of the Mine Act or an MSHA standard diverge, the Secretary's interpretation, not the Commission's, is entitled to deference from a reviewing court. Secretary of Labor v. Ohio Valley Coal Co., 359 F.3d 531, 534 (D.C. Cir. 2004); Excel Mining, 334 F.3d at 5-6; RAG Cumberland Resources LP v. FMSHRC, 272 F.3d 590, 596 (D.C. Cir. 2001); Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1304 (D.C. Cir. 2000); Energy West, 40 F.3d at 463. A court must accept the Secretary's interpretation of a standard unless it "'is plainly erroneous or inconsistent with the [standard]'" (Excel Mining, 334 F.3d at 5-6 (quoting Akzo Nobel Salt, 212 F.3d at 1303)) -- that is, as long as it "fits * * * within the terms of [the standard] and is compatible with its purpose." Cold Spring Granite Co. v. FMSHRC, 98 F.3d 1376, 1378 (D.C. Cir. 1996). Accord Martin, 499 U.S. at 150-51 (an agency's interpretation must be given effect as long as it "sensibly conforms to the purpose and wording of the regulation[]") (citation and internal quotation marks omitted.)

    Finally, it is well established that a statute or regulation that is intended to protect the safety or health of individuals must be interpreted in a broad manner to actually achieve that goal. Cannelton Industries, 867 F.2d at 1435, and Donovan on behalf of Anderson v. Stafford Construction Co., 732 F.2d 954, 959-960 (D.C. Cir. 1984) (both stating that a safety and health statute must be interpreted broadly); Brennan v. OSHRC, 491 F.2d 1340, 1344 (2d Cir. 1974) (stating that a safety or health regulation must be interpreted broadly). The converse is equally true: when a remedial statute or regulation contains an exception, the exception must be interpreted narrowly. Chao v. Double JJ Resort Ranch, 375 F.3d 393, 396 (6th Cir. 2004); O'Toole v. United States, 295 F.3d 1029, 1037 (9th Cir. 2002); Local Union 7107, UMWA v. Clinchfield Coal Co., 124 F.3d 639, 640-41 (4th Cir. 1997), cert. denied, 523 U.S. 1006 (1998).

C.    The Commission Ignored the Plain Meaning of the Applicable Standards

    Section 75.360(a)(1) states:

Except as provided in paragraph (a)(2) of this section, a certified person designated by the operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground. No person other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed for the established 8-hour interval. * * *.

30 C.F.R. 75.360(a)(1) (emphasis supplied). [11] Section 75.360(a)(2) states:

Preshift examination of areas where pumpers are scheduled to work or travel shall not be required prior to the pumper entering the areas if the pumper is a certified person and the pumper conducts an examination for hazardous conditions, tests for methane and oxygen deficiency and determines if the air is moving in the proper direction in the area where the pumper works or travels. The examination of the area must be completed before the pumper performs any other work.
* * *.

30 C.F.R. 75.360(a)(2) (emphasis supplied). The preshift examination referred to in Section 75.360(a)(1), and described in detail in Section 75.360(b), is required in all of the described areas with one exception -- and that exception is limited to areas where pumpers are scheduled to work or travel.

    The "pumpers' exception" recognizes that "pumpers travel to remote areas of the mine to check on water levels and the status of pumps, making regular preshift examinations impractical." 61 Fed. Reg. 9764, 9792 (March 11, 1996). "[R]ather than requiring the preshift examiner to travel to a remote location in the mine where pumpers typically do their jobs, the exception permits the pumper to perform the examination there." 26 FMSHRC at 160 (Commissioner Jordan, dissenting). "It is important to note that the pumper is conducting an examination in a limited area only for himself or herself." 61 Fed. Reg. at 9792.

    It is also important to note that Sections 75.360(a)(1) and 75.360(a)(2) must be read in conjunction with Section 75.360(b). Read as a whole, Section 75.360(b) describes three categories of areas in which preshift examinations must be conducted. Some areas must be examined only if persons are scheduled to work or travel in those areas (see Sections 75.360(b)(1)-(b)(3), (b)(8), [12] and (b)(10)); some areas must be examined without regard to whether persons are scheduled to work or travel in those areas if persons are scheduled to work or travel in other specified areas that may be affected by conditions in those areas (see Sections 75.360(b)(4)-(b)(6)); some areas must be examined without regard to where persons are scheduled to work or travel (see Sections 75.360(b)(7) and (b)(9)). The purpose of requiring preshift examinations of certain areas where persons are not scheduled to work or travel is to protect other areas of the mine where persons are scheduled to work or travel (the second and third categories, above) from hazards originating in areas where persons are not scheduled to work or travel. See, e.g., Tr. 176-78, 224-25, 328 (J.A. 34-35, 38, 52).

    Under established principles of construction, it must be presumed that the creation of differently described categories of areas in the scheme of Section 75.360 was intentional. In drafting the carefully worded regulatory scheme, the Secretary intended that areas described as areas where persons are scheduled to work or travel be limited to such areas, and that areas not described as areas where persons are scheduled to work or travel not be limited to areas where persons are scheduled to work or travel. The area in which the "pumpers' examination" may be substituted for the preshift examination is so limited; the area in which energized trolley wires must be examined is not. See U.S. Telecom Ass'n v. FCC, 227 F.3d 450, 458 (D.C. Cir. 2000) ("Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion") (quoting Russello v. United States, 464 U.S. 16, 23 (1983)) (internal quotation marks omitted).

    When only pumpers are scheduled to work or travel underground, as in this case, the "pumpers' examination" cannot be substituted for the preshift examinations mandated by Section 75.360(b) in areas that are described without reference to the presence of any persons, such as Sections 75.360(b)(7) and (b)(9). The specific preshift examination provision involved in this case -- Section 75.360(b)(7) -- requires a preshift examination of "[a]reas where trolley wires or trolley feeder wires are to be or will remain energized during the oncoming shift." Section 75.360(b)(7) contains no exceptions or limitations.

    As explained by MSHA Inspector and Accident Investigator Gilbert Young, the reason for Section 75.360(b)(7)'s requirement is that trolley wires, unlike other wires carrying electricity underground, are uninsulated and, if they become dislodged, can readily create electrical arcs that result in a fire or explosion. Tr. 176-78, 224-25 (J.A. 33-34, 38). Inspector Young testified:

You've got energized trolley wire. You could have a fire, you know, roof could fall on the trolley wire, arc could fall on the ground, you could have arc catch the coal ribs on fire. * * *. You could have smoke inhalation, burns.

Tr. 177 (J.A. 34). See also Tr. 280-81 (J.A. 44). Those hazards exist for any miner underground, including pumpers, regardless of where the energized trolley wires are located. Tr. 176-78, 224-25 (J.A. 33-34, 38).

    MSHA Ventilation Specialist Jerry Richards agreed that all areas containing energized trolley wires must be subjected to a preshift examination before any miner is sent underground. Tr. 298 (J.A. 47). Richards testified:

You could have top [roof] to move, break up, you could have trolley wire coming out of the hangers. You could have the top begin to converge and pull the trolley wire out of the [insulating] valves or the valve go to ground and result in a fire. * * *. They have to be examined. That would result in a mine fire or something like that.

Tr. 298-299 (J.A. 47). Specialist Richards concluded:

The preshift is not only for the general laborers. It's for Mr. Baker and Mr. Styers [the certified pumpers] also. You could have something happen in another part of the mine that was removed from them, not [necessarily] remote but removed from them. You could have a trolley wire fire or anything that would affect that.

Tr. 328 (J.A. 52).

    Aggravating the hazards associated with the energized trolley wires running throughout the Shadrick Mine is the fact that the mine has a history of roof falls and roof conditions. Tr. 177, 187 (J.A. 34, 36). Roof falls make it more likely that energized trolley wires will be pulled down and produce a fire. Tr. 187, 223 (J.A. 36, 38). [13] Because the toxic byproducts of a mine fire can endanger miners working anywhere in the mine, these concerns apply with equal weight to all persons working or traveling underground -- including pumpers. Tr. 176-78, 224-25, 328 (J.A. 34, 38, 52).

    The plain meaning reading of Section 75.360 set forth above is supported by the preamble to Section 75.360. The "pumpers' exception" was promulgated in the 1996 amendments to the Secretary's ventilation standards for underground coal mines. The preamble explains:

Paragraph (a)(2) of the final rule provides that preshift examinations of areas where pumpers are scheduled to work or travel are not required prior to the pumper entering the areas, if the pumper is a certified person and the pumper conducts the specified examinations. This standard recognizes that pumpers travel to remote areas of the mine to check on water levels and the status of pumps, making regular preshift examinations impractical. The examinations required by pumpers include an examination for hazardous conditions, tests for methane and oxygen deficiency, and a determination of whether air is moving in its proper direction in the area where the pumper works or travels. The examination of the area must be completed before the pumper performs any other work.

61 Fed Reg. at 9792. The preamble explicitly and repeatedly indicates that the effect of the "pumpers' exception" is limited to "areas where pumpers are scheduled to work or travel." Ibid. The preamble stresses that "the pumper is conducting an examination in a limited area * * *." Ibid.

    In emphasizing that the newly-promulgated "pumpers' exception" "maintains the existing level of safety" (61 Fed. Reg. at 9792), [14] the Secretary indicated that before beginning their work, pumpers, like all other miners, must be given the advantage of having had the mine examined for all enumerated hazards -- including those originating beyond the areas where the pumpers are scheduled to work or travel. [15] It would have been anomalous if, in promulgating the "pumpers' exception," the Secretary intended that hazards originating in areas of the mine where pumpers do not work or travel (hazards for which preshift examinations are explicitly required under other provisions of Section 75.360) could go entirely unexamined while pumpers work or travel underground. The Secretary did not intend to treat pumpers as deserving less protection than other miners under the Mine Act. See Natural Resources Defense Council, Inc. v. EPA, 907 F.2d 1146, 1156 (D.C. Cir. 1990) (rejecting as an "anomaly" an interpretation treating similar hazards differently).

    In short, the plain meaning reading of Section 75.360 set forth above makes sense from a safety standpoint. The Commission majority did not find otherwise; indeed, the Commission majority stated that it was "sympathetic" to the safety concern expressed by the Secretary. 26 FMSHRC at 154 (J.A. 90). Instead, the majority rejected the Secretary's reading of Section 75.360 essentially on the ground that the plain meaning of Section 75.360 precludes that reading. However, the Commission majority's plain meaning reading of Section 75.360(a)'s language and design is illogical, incomplete, and unpersuasive.

    The Commission majority began its analysis by stating that, "[u]nder a plain reading, the examinations required under section (b) do not apply to certified pumpers because they expressly do not have to conduct preshift examinations." 26 FMSHRC at 152 (J.A. 88). The majority's statement is a non sequitur. The fact that preshift examinations do not have to be conducted by pumpers does not mean that preshift examinations do not have to be conducted by someone else, in specified areas beyond where pumpers are scheduled to work or travel, in order to protect pumpers where they are scheduled to work or travel. The fact that preshift examinations do not have to be conducted by pumpers does not mean that preshift examinations do not have to be conducted for pumpers (and for any other miners scheduled to enter or remain in the mine). [16]

    In addition, the Commission majority stated that, "[u]nder the express terms of section 75.360(a)(1), a certified pumper does not need a preshift examination to enter or remain in the mine" because that section states that "[n]o person other than certified examiners may enter or remain in any underground area unless a preshift examination has been completed for the established 8-hour interval." 26 FMSHRC at 152 (J.A. 88) (emphasis by the Commission majority). The sentence quoted by the Commission majority is "taken out of context," and therefore "cannot provide conclusive proof" of the Secretary's intent. Bell Atlantic, 131 F.3d at 1047 ("Textual analysis is a language game played on a field known as 'context.' * * *. '[T]he meaning of statutory language, plain or not, depends on context.'") (quoting Bailey v. United States, 516 U.S. 137, 145 (1995)).

    The quoted sentence comes immediately after the sentence in Section 75.360(a)(1) that states that, except for the "pumpers' exception" set forth in Section 75.360(a)(2), "a certified person designated by the operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to work or travel underground." Read in context with the sentence that immediately precedes it, the quoted sentence merely means that a certified person may enter the mine before a preshift examination is conducted in order to conduct a preshift examination. The quoted sentence merely reflects the need to avoid a "Catch 22" situation in which a certified person could not enter the mine to conduct a preshift examination because a preshift examination had not yet been conducted. See 26 FMSHRC at 159 (J.A. 95) (Commissioner Jordan, dissenting). [17] If the majority's reading of the quoted sentence were correct, any certified person could enter and remain in the mine for any purpose -- for example, to work a regular shift mining coal -- without a preshift examination having been conducted. See ibid. Indeed, if the majority's reading of the quoted sentence were correct, the Secretary would have had no need to create the "pumpers' exception." See ibid.

    Moving beyond its plain meaning analysis, the Commission majority stated that that analysis was supported by the fact that "the preamble states on at least four occasions that the pumpers' examination is an alternative to, or may be performed in lieu of, a preshift examination." 26 FMSHRC at 152 (J.A. 88) (citing 61 Fed. Reg. at 9791-92). The majority's reading of the preamble, like its reading of the standard, is incomplete. Read properly, the preamble explicitly and repeatedly indicates that the "pumpers' examination" may be substituted for a preshift examination in areas where pumpers are scheduled to work or travel. The majority read that limitation out of the preamble just as it read that limitation out of the standard.

    Finally, the Commission majority relied on the preamble statement that "areas where persons are not scheduled to work or travel are not required to be examined under the final rule * * *." 26 FMSHRC at 152 (J.A. 88) (citing 61 Fed. Reg. at 9791-92). The quoted statement was made in response to a suggestion that the rule not require a preshift examination for non-producing shifts when persons are to work in or near the shaft, slope, or drift; the statement was not made in connection with the "pumpers' exception." To the extent the quoted statement can be construed as suggesting that no preshift examination is required beyond where pumpers are scheduled to work or travel when pumpers are working during a non-producing shift, the statement is incorrect because it is irreconcilable both with the plain meaning of the standard and with the rest of the preamble. Such a questionable and safety-defeating construction is insufficient to overcome the plain meaning of the standard. See ExxonMobil Gas Marketing Co. v. FERC, 297 F.3d 1071, 1088 (D.C. Cir. 2002) ("[S]nippets of legislative history do not a law make. '[Meaning is] derived from statutory provisions, not from loosely worded fragments extracted from congressional reports and speeches.'") (citations omitted), cert. denied, __ U.S. __, 124 S.Ct. 48, 157 L.Ed.2d 249 (2003); Independent Bankers Ass'n of America v. Farm Credit Administration, 164 F.3d 661, 668 (D.C. Cir. 1999) ("Given the clear language of the statute, selected and arguably ambiguous snippets of the legislative history are insufficient to undermine that language").

    In sum, the Commission majority read an explicitly stated limitation on an exception out of the exception, and thereby read the exception in a way that "swallowed the rule." United States v. Campos, 217 F.3d 707, 720 (9th Cir.), cert. denied, 531 U.S. 952 (2000). See 26 FMSHRC at 158 (Commissioner Jordan, dissenting). The Commission majority's reading should therefore be rejected.

D.    In Any Event, the Secretary's Reading of the Applicable Standards Is Entitled to Acceptance Because It Is Reasonable

    If the Court finds that the Secretary's standards do not have the plain meaning set forth above -- that is, if it finds that the standards are ambiguous -- it should accept the Secretary's reading because that reading is permissible. The Secretary's reading is consistent with the regulatory language, and is "eminently reasonable" (Ohio Valley, 359 F.3d at 536) because it protects pumpers from being hurt or killed by hazards, such as fires triggered by energized trolley wires, that can originate in areas beyond where pumpers are scheduled to work or travel but spread to areas where pumpers work and travel.

CONCLUSION

    For the reasons stated above, the Secretary requests that the Court reverse the decision of the Commission finding that there was no violation of 30 C.F.R. 75.360(a)(1) and remand the case to determine whether the violation was "significant and substantial" and assess an appropriate civil penalty.

Respectfully submitted,

HOWARD M. RADZELY
Solicitor of Labor

EDWARD P. CLAIR
Associate Solicitor

W. CHRISTIAN SCHUMANN
Counsel, Appellate Litigation

___signed____________
JERALD S. FEINGOLD
Attorney

U.S. Department of Labor
Office of the Solicitor
1100 Wilson Boulevard
Suite 2200
Arlington, VA 22209-2296
Telephone: (202) 693-9335

CERTIFICATE OF COMPLIANCE

    Pursuant to Fed. R. App. P. 32(a)(7)(B), (C) and D.C. Cir. Rules 28(d) and 32(a)(2), I hereby certify that this brief for the Secretary of Labor contains 7,527 words as determined by Word, the processing system used to prepare the brief.

___signed______
Jerald S. Feingold
Attorney

CERTIFICATE OF SERVICE

    I certify that two copies of the foregoing Brief for the Secretary of Labor was mailed this 14th day of December, 2004, to:

David J. Hardy, Esq.
Spilman, Thomas & Battle
P.O. Box 273
Charleston, WV 25321

Thomas Stock, General Counsel
Federal Mine Safety and Health
Review Commission
601 New Jersey Ave., Suite 9500
Washington, DC 20001

___signed______
Jerald S. Feingold
Attorney


Footnotes

[1]    A violation is "significant and substantial" if it is "of such nature as could significantly and substantially contribute to the cause and effect of a * * * mine safety or health hazard * * *." 30 U.S.C. 814(d). If a violation is "significant and substantial," it may be subject to proposal of an increased civil penalty (see 30 C.F.R. 100.3) and may, if followed by similar violations, lead to issuance of a withdrawal order. 30 U.S.C. 814(d).

[2]    For example, Section 75.360(b)(1) states that an examination must be conducted in roadways, travel ways, and track haulage ways "where persons are scheduled * * * to work or travel" during the oncoming shift. Section 75.360(b)(4) states that an examination must be conducted in specified intake air course areas if the intake air is used to ventilate working sections "where anyone is scheduled to work" during the oncoming shift. Section 75.360(b)(9) states that an examination must be conducted of specified electrical installations if the installations will be energized during the oncoming shift.

[3]    One member of the five-member Commission recused himself. 26 FMSHRC at 146 n.1 (J.A. 82).

[4]    Commissioner Jordan stated that, even if the language of the "pumpers' exception" were ambiguous -- and she found that it is not -- "the Commission should defer to the Secretary's reasonable interpretation of the rule." 26 FMSHRC at 160 (J.A. 96).

[5]    "Weekly examinations" are required of unsealed worked-out areas of a mine and of its bleeder (return ventilation) system. 30 C.F.R. 75.364.

[6]    The mine was of such a size that it typically took three certified examiners on non-producing shifts to conduct a complete preshift examination. Tr. 90, 327-28, 414 (J.A. 21, 52, 63).

[7]    The working sections were deenergized and the face equipment tagged out when the mine was idled. Tr. 108, 452-53 (J.A. 24, 71).

[8]    A "pumper" maintains and repairs the pumps and assures that they are working to prevent flooding in the mine.

[9]    The judge affirmed the "weekly examination" violation under Section 75.364(b). The judge's findings regarding that violation were not appealed to the Commission by Cannelton and are not before the Court.

[10]    A "certified person" is any person who is certified by the state in which the mine is located to perform the duties prescribed in 30 C.F.R. Part 75, including the duty to conduct preshift examinations. See 30 C.F.R. 75.2. A "certified pumper" is simply a pumper who also happens to be a "certified person."

[11]    A "preshift examination" is required before an oncoming shift of miners may proceed underground. It is

a critically important and fundamental safety practice in the industry. It is the primary means of determining the effectiveness of the mine's ventilation system and of detecting developing hazards, such as methane accumulations and bad roof.

61 Fed. Reg. 9764, 9790 (March 11, 1996).

[12]    Although equipment (such as mobile equipment) is often operated in the presence of persons working underground, there are times when equipment (such as conveyor belts) may be operated when no persons are present. See 61 Fed. Reg. 9795 (March 11, 1996). Under the latter circumstances, Section 75.360(b)(8) would fall into the third category set forth here.

[13]    The likelihood of roof falls not only increases the likelihood that trolley wires will be pulled down, it also increases the likelihood that ventilation in escapeways and return airways will be impeded. Tr. 187, 220 (J.A. 36, 37). Such blockages can increase the accumulation of methane, further enhancing the likelihood of fire. Tr. 224 (J.A. 38).

[14]    The "pumpers' exception," like any standard promulgated under the Mine Act, must comply with Section 101(a)(9) of the Mine Act, 30 U.S.C. 811(a)(9), which states: "No mandatory health or safety standard promulgated under this title shall reduce the protection afforded miners by an existing mandatory health or safety standard." Because the preshift examination requirement predating the "pumpers' exception" made no distinction between the protection afforded pumpers and that afforded other miners, the current rule may not provide pumpers any less protection than is provided to other miners. If, on the other hand, the "pumpers' exception" meant what the Commission majority said it means, the provision would violate Section 101(a)(9).

[15]    The reason for sending a certified examiner underground before other miners are sent underground is that the examiner is focused by the nature of his role on identifying and correcting all recognized hazards throughout the mine before they can result in injury to any miner. Tr. 327-29 (J.A. 52). While performing pumper work in a remote area of the mine, a pumper who is unaware of developing hazards in areas of the mine beyond his work or travel is more likely to be injured (or worse) from a resulting accident than is the preshift examiner who is focused on such hazards. The presence of the preshift examiner -- far from unnecessarily exposing a second miner to hazards -- protects both the examiner and the pumper from hazards originating beyond where the pumper is scheduled to work or travel. Tr. 327-28 (J.A. 52). Although sending preshift examiners underground when only pumpers are scheduled to work or travel underground exposes the preshift examiners to hazards to which they would not otherwise be exposed, that exposure is reduced by the fact that, in going underground, the preshift examiners, unlike the pumpers, are focused entirely on detecting and correcting hazards as they proceed through the mine. See Tr. 327-29 (J.A. 52).

[16]    Contrary to the majority's analysis, the "pumpers' exception" is formulated in terms of "who" and "where," not just "who." The Secretary could have promulgated a rule stating: "Preshift examinations shall not be required prior to certified pumpers entering the mine if they perform a pumpers' examination in the areas where they work or travel." She did not do so.

[17]    The standard immediately following Section 75.360 -- 30 C.F.R. 75.361, which sets forth the requirement for a "supplemental examination" -- is even more explicit in indicating that the certified person referred to is the person conducting the examination. Section 75.361 begins: "Except for certified persons conducting examinations required by this subpart, * * *." The "certified examiners" referred to in the second sentence of Section 75.360(a)(1) and the "certified persons conducting examinations" referred to in Section 75.361 perform similar functions -- examining specified areas before other miners enter them -- and the two provisions referring to "certified persons" should be interpreted to have similar meanings. See Motion Picture Ass'n of America, Inc. v. FCC, 309 F.3d 796, 801-02 (D.C. Cir. 2002), and cases there cited ("Statutory provisions in pari materia normally are construed together to discern their meaning").