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Twentymile Brief, response

ORAL ARGUMENT SCHEDULED FOR
MAY 16, 2005

UNITED STATES COURT OF APPEAL
FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________________________________________________

Docket No. 04-1292 (Consolidated with No. 04-1312)
__________________________________________________________

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

Petitioner,

v.

TWENTYMILE COAL COMPANY

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
__________________________________________________________

RESPONSE 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 are the Secretary of Labor and Twentymile Coal Company. The parties in this Court are the Secretary of Labor, Twentymile Coal Company, and the Commission. No amici appeared before the Commission, and there are no amici in this Court.

    (B)    Rulings Under Review. Both the Secretary of Labor and Twentymile Coal Company seek review of the decision of the Commission issued on August 12, 2004, in Twentymile Coal Co., FMSHRC Docket Nos. WEST 2000-480-R and WEST 2002-131, and reported at 26 FMSHRC 666 (2004). Twentymile seeks review of the Commission's actions in finding that Twentymile violated a training standard, modifying the withdrawal order alleging the violation to a citation, and finding that, as modified, the citation gave Twentymile adequate notice of the violation alleged. The Secretary seeks review of the Commission's action in refusing to assess a penalty for Twentymile's violation.

    (C)    Related Cases. This case was not previously before this Court or any other court. Other than the two dockets, Nos. 04-1292 and 04-1312, consolidated into one case by order of the Court dated September 8, 2004, counsel for the Secretary are unaware of any other 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

STATEMENT OF FACTS

SUMMARY OF ARGUMENT

ARGUMENT

I.    THE COMMISSION ACTED PROPERLY IN AFFIRMING THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT TWENTYMILE VIOLATED THE TRAINING STANDARD 30 C.F.R. 48.7(c) WHEN IT FAILED TO PROVIDE NEW TASK TRAINING TO MINERS ENGAGED IN UNPLUGGING ITS NEWLY-INSTALLED ROCK CHUTE

A.    Introduction

B.    Applicable Principles and Standard of Review

C.    The Judge's Finding that Twentymile Violated 30 C.F.R. 48.7(c) Because Unplugging the Rock Chute Constituted a Distinct "Task" for Which New Task Training Was Required Is Supported By Substantial Evidence and Accords with Applicable Law

1.    The judge's interpretation of the standard is reasonable

2.    Substantial evidence supports the judge's finding.

D.    The Judge's Finding that Twentymile Violated 30 C.F.R. 48.7(c) Should Also Be Affirmed Because, As a Subtask Within the General Task of "Beltman," Unplugging the Rock Chute Required New Task Training

II.    THE COMMISSION ACTED PROPERLY IN MODIFYING THE ORDER ISSUED BY THE SECRETARY UNDER SECTION 104(g) OF THE MINE ACT TO A CITATION UNDER SECTION 104(a) OF THE ACT

A.    Twentymile's Argument Is Not Properly Before the Court

B.    Twentymile's Argument Is Not Persuasive

III.    AS MODIFIED BY THE COMMISSION, THE SECTION 104(a) CITATION GAVE TWENTYMILE ADEQUATE NOTICE OF THE VIOLATION ALLEGED AGAINST IT

A.    Applicable Principles

B.    The Citation Was Adequately Specific Based on the Order as Issued

C.    The Citation Was Adequately Specific Based on the Order as Amended

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

TABLE OF AUTHORITIES

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

CASES

American Fed. Of State, County & Municipal Employees Capital Area Council 26 v. FLRA, 395 F.3d 443 (D.C. Cir. 2005)

Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996)

Barnhart v. Walton, 535 U.S. 212 (2002)

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

Bullcreek v. NRC, 359 F.3d 536 (D.C. Cir. 2004)

Caribbean Broadcasting System, Ltd. v. Cable & Wireless PLC, 148 F.3d 1080 (D.C. Cir. 1998)

Chemical Mfrs. Ass'n v. EPA, 919 F.2d 158 (D.C. Cir. 1990)

*    Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773 (D.C. Cir.), cert. denied, 498 U.S. 849 (1990)

Cole v. U.S. Capital, Inc., 389 F.3d 719 (7th Cir. 2004)

Contractors' Labor Pool, Inc. v. NLRB, 323 F.3d 1051 (D.C. Cir. 2003)

Craftmatic Securities Litigation v. Kraftsow, 890 F.2d 628 (3d Cir. 1990)

Dandridge v. Williams, 397 U.S. 471 (1970)

Donovan on behalf of Chacon v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983)

Donovan v. Royal Logging Co., 645 F.2d 822 (9th Cir. 1981)

Emerald Mines Co. v. FMSHRC, 863 F.2d 51 (D.C. Cir. 1988)

FTC v. Weyerhaeuser Co., 665 F.2d 1072 (D.C. Cir. 1981)

GAF Corp. v. OSHRC, 561 F.2d 913 (D.C. Cir. 1977)

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

Independent Insurance Agents of America, Inc. v. Hawke, 211 F.3d 638 (D.C. Cir. 2000)

Indiana Michigan Power Co. v. Dept. of Energy, 88 F.3d 1272 (D.C. Cir. 1996)

LaShawn A., by Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993), cert. denied, 510 U.S. 1044 (1994)

Lee Lumber & Building Material Corp. v. NLRB, 310 F.3d 209 (D.C. Cir. 2002)

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

Martini v. Federal National Mortgage Ass'n, 178 F.3d 1336 (D.C. Cir. 1999), cert. dismissed, 528 U.S. 1147 (2000)

Minerals Industries & Heavy Construction Group v. OSHRC, 639 F.2d 1289 (5th Cir. 1981)

Mingo Logan Coal Co., 19 FMSHRC 246 (1997), aff'd, 133 F.3d 916 (4th Cir. 1998) (Table)

*    National Realty & Construction Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973)

Natural Resources Defense Council, Inc. v.Browner, 57 F.3d 1122 (D.C. Cir. 1995)

*    Otis Elevator Co. v. Secretary of Labor, 921 F.2d 1285 (D.C. Cir. 1990)

*    Qi-Zhuo v. Meissner, 70 F.3d 136 (D.C. Cir. 1995)

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)

Schoenbohm v. FCC, 204 F.3d 243 (D.C. Cir.), cert. denied, 531 U.S. 968 (2000)

Secretary of Labor v. Cannelton Industries, Inc., 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 v. Western Fuels-Utah, Inc., 900 F.2d 318 (D.C. Cir. 1990)

*    Shook v. District of Columbia Financial Responsibility & Management Assistance Auth'y, 132 F.3d 775 (D.C. Cir. 1998)

Texas Rural Legal Aid, Inc. v. Legal Services Corp., 940 F.2d 685 (D.C. Cir. 1991)

United States v. Barnes, 295 F.3d 1354 (D.C. Cir. 2002)

United States Testing Co., Inc. v. NLRB, 160 F.3d 14 (D.C. Cir. 1998)

United States ex rel. Russell v. Epic Healthcare Management Group, 193 F.3d 304 (5th Cir. 1999)

U.S. Dep't of Labor v. North Carolina Growers Ass'n, 377 F.3d 345 (4th Cir. 2004)

Walker Stone Co., Inc. v. Secretary of Labor, 156 F.3d 1076 (10th Cir. 1998)

*    Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982)

STATUTES AND CODES

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

Section 3(d), 30 U.S.C. 802(d)
Section 3(j), 30 U.S.C. 802(j)
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)(1), 30 U.S.C. 814(d)(1)
*    Section 104(g), 30 U.S.C. 814(g)
Section 104(g)(1), 30 U.S.C. 814(g)(1)
Section 105(d), 30 U.S.C. 815(d)
Section 106(a)(1), 30 U.S.C. 816(a)(1)
Section 107(a), 30 U.S.C. 817(a)
Section 110(a), 30 U.S.C. 820(a)
Section 113(d)(2)(A)(ii), 30 U.S.C. 823(d)(2)(A)(ii)

29 C.F.R. 2700.78

30 C.F.R. Part 48

30 C.F.R. 48.2(f)

30 C.F.R. 48.7(c)

30 C.F.R. 48.7(e)

Miscellaneous

1 K. Davis Administrative Law Treatise 8.04 (1958)

Fed. R. app. P. 8

Fed. R. Civ. P. 9(b)

MSHA Program Policy Manual, Vol. I, "Section 104(g)(1) Orders of Withdrawal -- Untrained Miners" (May 16, 1996)

2A Norman J. Singer, Statutes and Statutory Construction 47.07 (6th ed. 2000)

S. Rep. No. 95-181, 95th Cong., 1st Sess. 49 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 637 (1978)

Webster's Third New Intn'l Dictionary (2002)

GLOSSARY OF ABBREVIATIONS AND ACRONYMS

Commission
J.A.
Mine Act or Act
MSHA
Secretary
Stip.
Tr.
Twentymile

Federal Mine Safety and Health Review Commission
Joint Appendix
Federal Mine Safety and Health Act of 1977
Mine Safety and Health Administration
Secretary of Labor
Stipulation
Transcript
Twentymile Coal Co.

STATEMENT REGARDING JURISDICTION

    The Secretary's Statement Regarding Jurisdiction is set forth in her opening brief, pp. 1-2, and will not be repeated here.

STATEMENT OF THE ISSUES PRESENTED

    1.    Whether the Commission acted properly in affirming the administrative law judge's finding that Twentymile Coal Company violated the training standard at 30 C.F.R. 48.7(c) when it failed to provide new task training to miners engaged in unplugging its newly-installed rock chute.

    2.    Whether the Commission acted properly in modifying the withdrawal order issued by the Secretary under Section 104(g) of the Mine Act to a citation under Section 104(a) of the Act.

    3.    Whether, as modified by the Commission, the Section 104(a) citation gave Twentymile adequate notice of the violation alleged against it.

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

    The Secretary's Statement of the Case is set forth in her opening brief, pp. 3-15, and will not be repeated here.

STATEMENT OF FACTS

    The Secretary's Statement of Facts is set forth in her opening brief, pp. 15-22, and will not be repeated here.

SUMMARY OF ARGUMENT

    The Secretary of Labor ("Secretary") issued a withdrawal order under Section 104(g) of the Mine Act alleging that Twentymile Coal Co. ("Twentymile") violated the new task training requirement at 30 C.F.R. 48.7(c) by assigning miners to unplug its newly-installed rock chute without providing them with new task training. The administrative law judge affirmed the order, as amended, reasoning that unplugging the rock chute constituted a distinct new task for which new task training was required. The Federal Mine Safety and Health Review Commission ("Commission") modified the order to a citation under Section 104(a) of the Mine Act, and affirmed the citation as so modified.

    The judge's finding that Twentymile violated the new task training standard is both legally correct and supported by substantial evidence. The judge correctly found that the evidence established that unplugging the rock chute was a distinct new task for which new task training was required because it was a job that occurs on a "regular basis." The judge's finding that Twentymile violated the training standard can also be affirmed because substantial evidence supports a finding that, as a new subtask within the general task of "beltman," unplugging the rock chute was a new job for which new task training was required.

    Twentymile cannot challenge the Commission majority's modification of the Section 104(g) order to a Section 104(a) citation because it failed to urge that objection before the Commission, either during oral argument or by filing a motion for reconsideration. In any event, the Commission majority acted properly in modifying the withdrawal order to a citation. Section 104(a) of the Mine Act authorizes the Secretary to issue a citation if she believes that a mine operator has violated any standard.

    As modified by the Commission, the Section 104(a) citation gave Twentymile adequate notice of the violation at issue in the case. Twentymile knew which miners it assigned to perform work at the rock chute, and it knew what work assignment it gave those miners. Twentymile has failed to demonstrate any prejudice to it from the wording of the order issued by the Secretary, either as originally worded or as amended at the hearing.

ARGUMENT

I.    THE COMMISSION ACTED PROPERLY IN AFFIRMING THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT TWENTYMILE VIOLATED THE TRAINING STANDARD AT 30 C.F.R. 48.7(c) WHEN IT FAILED TO PROVIDE NEW TASK TRAINING TO MINERS ENGAGED IN UNPLUGGING ITS NEWLY-INSTALLED ROCK CHUTE

A.    Introduction

    The primary issue in this case is whether the Secretary properly alleged, and the Commission properly affirmed, that Twentymile failed to provide required new task training to miners it assigned to unplug its newly-installed rock chute. Task training is an essential aspect of the Mine Act's overall program for providing training to miners to prevent accidents that can result in injury or death. See generally S. Rep. No. 95-181, 95th Cong., 1st Sess. 49-51, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 ("Leg. Hist."), at 637-39 (1978) (discussing the Mine Act's training program and emphasizing that providing health and safety training to miners is "essential" to achieving the goals of the Act). Unlike other types of training, which involve formal training subjects and time-in-training requirements and must be given at prescribed times or intervals and at particular locations, task training is an unstructured type of training that is to be given whenever the need arises. "[T]ask training need not be formal or elaborate and may be provided readily to miners assigned on an ad hoc, temporary, or limited basis." 26 FMSHRC at 680 (J.A. 186).

    When a mine operator assigns any miner to perform an activity that is performed on a regular basis but is new to that miner, the operator must ask itself whether there are any safety or health implications of that activity that differ from those of tasks in which the miner may already be trained and proficient. If so, the operator is required to bring to the attention of the miner assigned to perform the new task the manner in which the task differs from tasks he has performed in the past, the safety and health hazards involved in the task, and how those hazards can be minimized or avoided. New task training is easy for mine operators to provide -- and is essential to miner health and safety.

B.    Applicable Principles and Standard of Review

    In construing a statute, the Court "looks first for the plain meaning of the text." United States v. Barnes, 295 F.3d 1354, 1359 (D.C. Cir. 2002). Accord Bullcreek v. NRC, 359 F.3d 536, 541 (D.C. Cir. 2004). If the language of the statute has a "plain and unambiguous meaning," the Court's inquiry ends so long as the resulting "statutory scheme is coherent and consistent." Barnes, 295 F.3d at 1359 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (internal quotation marks omitted)). Accord Bullcreek, 359 F.3d at 541.

    In deciding whether a statute's meaning is plain, a court "must first exhaust the 'traditional tools of statutory construction' to determine whether Congress has spoken to the precise question at issue." Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C. Cir. 1995) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)). "The traditional tools include examination of the statute's text, legislative history, and structure, as well as its purpose." Bell Atlantic Telephone Companies v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997) (internal citations omitted). "If this search yields a clear result, then Congress has expressed its intention as to the question * * *." Ibid.

    "[W]hen the statute is silent or ambiguous with respect to the specific issue, the question for [the] court * * * is whether the Secretary's interpretation is a permissible construction of the statute." Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003) (quoting Secretary of Labor v. Cannelton Industries, Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989) (internal quotation marks omitted)). The Court should defer to "a reasonable interpretation" by the Secretary. Excel, 334 F.3d at 6 (quoting Chevron, 467 U.S. at 844). "Moreover, in the statutory scheme of the Mine Act, the Secretary's litigating position [before the Commission] is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of a * * * health and safety standard, and is therefore deserving of deference." Excel, 334 F.3d at 6 (brackets by the Court) (citations and internal quotation marks omitted).

    An agency's interpretation of a standard the agency has promulgated under a statute it is entrusted with administering is entitled to deference, and the agency's interpretation must be accepted as long as it is not plainly erroneous or inconsistent with the language or the purpose of the standard. Martin v. OSHRC, 499 U.S. 144, 150-51 (1991);Secretary of Labor v. Ohio Valley Coal Co., 359 F.3d 531, 534-35 (D.C. Cir. 2004); Excel, 334 F.3d at 6. A standard must be interpreted in a manner that furthers the purposes of the standard and the underlying statute, not in a manner that thwarts those purposes. Secretary of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 320 (D.C. Cir. 1990) (a regulation must be interpreted in a manner that furthers the safety purpose of the statute); GAF Corp. v. OSHRC, 561 F.2d 913, 915 (D.C. Cir. 1977) (a regulation must be interpreted in a manner that furthers the purpose of the regulation).

    Finally, the factual findings of the administrative law judge must be affirmed if they are supported by substantial evidence on the record as a whole. Donovan on behalf of Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983) (applying Section 113(d)(2)(A)(ii) of the Mine Act, 30 U.S.C. 823(d)(2)(A)(ii)). "Substantial evidence" means such "relevant evidence as a reasonable mind might accept as adequate to support [the judge's] conclusion." American Fed. of State, County & Municipal Employees Capital Area Council 26 v. FLRA, 395 F.3d 443, 447 (D.C. Cir. 2005). The "possibility of drawing two inconsistent conclusions from the evidence does not prevent [a judge's] finding from being supported by substantial evidence." Schoenbohm v. FCC, 204 F.3d 243, 246 (D.C. Cir.), cert. denied, 531 U.S. 968 (2000).

C.    The Judge's Finding that Twentymile Violated 30 C.F.R. 48.7(c) Because Unplugging the Rock Chute Constituted a Distinct "Task" for Which New Task Training Was Required Is Supported by Substantial Evidence and Accords with Applicable Law [1]

1.    The judge's interpretation of the standard is reasonable

    Subpart A of 30 C.F.R. Part 48, which applies to underground miners, sets forth requirements with respect to five categories of training: new miner training, experienced miner training, new task training, annual refresher training, and hazard recognition and avoidance training. Section 48.7(c) of Subpart A, which pertains to new task training and is the provision at issue in this case, states in relevant part:

Miners assigned a new task * * * shall be instructed in the safety and health aspects and safe work procedures of the task * * * [2] prior to performing such task. [3]

The term "task," as used throughout Subpart A, is defined as "a work assignment that includes duties of a job that occur on a regular basis and which requires physical abilities and job knowledge." 30 C.F.R. 48.2(f). Although neither Section 48.7(c) nor Section 48.2(f) explicitly addresses whether the job of unplugging Twentymile's rock chute constituted a distinct "task" for which new task training was required, the judge properly determined that, read in a safety-promoting context, those provisions are reasonably interpreted to require just that. 25 FMSHRC at 382-84 (J.A. 162-64).

    In determining whether the job of unplugging the rock chute occurred on a "regular basis," [4] the judge considered whether a "reasonably prudent operator familiar with the mining industry and the protective purposes of the standard [would] have recognized that unplugging the rock chute would occur on a regular basis * * *." 25 FMSHRC at 383-84 (J.A. 163-64). After reviewing the record evidence, the judge answered that question in the affirmative. 25 FMSHRC at 384 (J.A. 164). Recognizing that the newly-installed rock chute had never become plugged before, the judge found that Twentymile reasonably should have anticipated that the chute would become plugged on a regular basis. Ibid. The judge inferred this from the fact that Twentymile had constructed the rock chute with four access doors and two internal monitoring devices to indicate when material stopped flowing in the chute, and the fact that other transfer chutes at the mine had become plugged on a regular basis. Ibid. See Tr. 86, 163 (J.A. 99, 118).

    The judge recognized that determining whether a job occurs on a "regular basis" depends on "the conditions and work practices existing at the particular mine involved * * *." 25 FMSHRC at 383 (J.A. 163). Twentymile asserts that, because Section 48.2(f)'s definition of "task" is phrased in terms of job duties that "occur on a regular basis" (emphasis supplied), the Commission erred in affirming the judge's finding by engaging in "speculation" as to whether the job of unplugging the rock chute would occur on a regular basis. Twentymile Opening Br. 19-23. Twentymile is mistaken. Because the rock chute was newly installed, one cannot look to the history of the rock chute to answer the question. Using common sense and the rule of reason, the judge in this case could only look to the construction of the rock chute, which indicated recognition of a real possibility that the rock chute would become plugged, and to the fact that other chutes at the mine had become plugged, to determine whether the operator reasonably should have anticipated [5] that the rock chute would become plugged on a regular basis. [6]

    The approach advocated by Twentymile -- that one can find that a job duty "occur[s] on a regular basis" only after it has occurred on a regular basis -- stands the logic and the purpose of the new task training requirement on its head. If miners assigned to a job duty must repeatedly be subjected to the hazards inherent in that assignment before it can be said to occur on a regular basis, those miners will repeatedly be subjected, without training, to the very hazards that new task training is intended to address. Under Twentymile's approach, the very element that made task training in this case so important -- i.e., the fact that the task had not been performed before -- would mean that new task training was not required. Conversely, under Twentymile's approach, waiting until a miner has repeatedly engaged in a job duty before it can be considered to occur with regularity would mean that the task is no longer "new" to that miner -- which misses the very purpose of new task training. The Secretary cannot have intended an anomalous interpretation under which task training is not required precisely when it is most needed. See Chemical Mfrs. Ass'n v. EPA, 919 F.2d 158, 165 (D.C. Cir. 1990) (rejecting as "anomalous at best" an interpretation that would subject to less stringent regulation facilities that Congress identified as particularly hazardous).

    By definition, new task training is particularly appropriate, and particularly important, in cases involving newly-installed equipment. As the Commission majority stated,

[T]he installation of a new piece of equipment requires an operator to consider whether tasks involving the equipment will occur on a regular basis. Where a task cannot be scheduled, but is reasonably foreseeable as a recurring duty with discrete health and safety concerns, an operator is expected to provide proper planning and communication to ensure that workers performing the task receive appropriate training. To hold otherwise would be to defer training necessary to guard against the hazards associated with the job until an unfortunate experience ratifies the need for task training. Jams, clogs, or other failures are, of course, not scheduled events.

26 FMSHRC at 678 (J.A. 184). As the Commission further stated, imposing a "literal definition" of the term "regular" would "create a situation in which the health and safety aspects of events that are reasonably foreseen as recurring, but not at scheduled or fixed intervals, would escape the mine's training program[,] * * * [c]ontrary to the general intent of the Mine Act and more specifically to the training provisions." Ibid.

    Applying a rigidly literalistic interpretation of the phrase "occur on a regular basis" to Subpart A's new task training provision would be particularly inappropriate because that phrase appears in the definitional section that applies throughout Subpart A, and hence is couched in general enough terms to be applicable to all Subpart A training requirements where it appears. When the definition of "task" is specifically applied to new task training, it must be interpreted in a manner that is consistent with the purpose of new task training. See 2A Norman J. Singer, Statutes and Statutory Construction 47.07, at 230 (6th ed. 2000) ("In order to avoid repugnance with other parts of the act and conflict with legislative intent, the words [in a statutory definition] may be restricted or expanded by the subject matter") (footnote omitted). See also Cole v. U.S. Capital, Inc., 389 F.3d 719, 725-27 (7th Cir. 2004) (a statutory definition must be interpreted in the context of the purpose of the statutory provision to which it is applied); U.S. Dep't of Labor v. North Carolina Growers Ass'n, 377 F.3d 345, 353 (4th Cir. 2004) (same). The judge's interpretation of the phrase "occur on a regular basis" in this case advances the purpose of the new task training provision; Twentymile's interpretation vitiates it.

    Twentymile also suggests that, because no evidence was presented that the rock chute became plugged again after June 6, 2000, the judge was required to infer that the chute would not become plugged on a regular basis. Twentymile Opening Br. 13, 18, 24. Again, Twentymile is mistaken. The fact that the chute may not have become plugged again after June 6, 2000, [7] does not establish that, on June 6, 2000, Twentymile should not reasonably have anticipated that it would become plugged again, and hence have provided new task training. More important, it is uncontested that after June 6, 2000, Twentymile made significant alterations to the chute for the very purpose of reducing the likelihood that it would become plugged again, including the installation of additional plug indication switches at each access door, a permanently mounted washing system, and two electromagnetic vibrators. Ex. R-5 (J.A. 75-76); Tr. 179-180 (J.A. 122). Those alterations affirmatively indicate that the operator anticipated that, after June 6, 2000, the chute, as configured on June 6, 2000, was likely to become plugged on a regular basis. Under the judge's analysis, the issue in this case is whether the operator reasonably should have anticipated that the chute, as configured at the time of the events in question, would become plugged on a regular basis, and hence should have provided the miners with appropriate task training before assigning them to unplug the chute. Twentymile's approach would defeat the safety purpose of the new task training standard because it would permit an operator to justify a failure to provide training entirely on the basis of operational changes it made after the fact -- i.e., after the operation for which training was needed was completed.

    Twentymile is also incorrect in its assertion that the Secretary must establish that any individual miner will be regularly exposed to the hazards inherent in the task before that miner can be required to receive task training. Twentymile Opening Br. 16-19. Section 48.2(f) defines "task" as "a work assignment that includes duties of a job that occur on a regular basis * * *." (Emphasis supplied). By the plain language of Section 48.2(f), it is the nature of the job assigned to the miner -- i.e., a job that occurs "on a regular basis" at the mine [8] -- that determines whether it constitutes a "task" for which training is required, not whether the job will be regularly performed by a particular miner. The hazards associated with a new task threaten the miner assigned to perform that task, and may threaten others, even if that miner is only assigned to perform it once. If Twentymile's interpretation were accepted, an operator could assign a different untrained miner every time a regularly occurring task needs to be performed and never provide task training to any of the miners, thereby exacerbating the hazards of the task by ensuring that only untrained miners perform it. There could be few more obvious ways of ensuring that miners will get hurt.

2.    Substantial evidence supports the judge's finding

    Substantial evidence supports the judge's finding that Twentymile reasonably should have anticipated that the rock chute would become plugged on a regular basis. It was "obvious" to William Denning, MSHA District 9 Staff Assistant to the District Manager, that the four access doors designed into the side of the rock chute were installed to facilitate all types of maintenance, including maintenance to "keep the material flowing properly through that chute." Tr. 86, 112-13 (J.A. 99, 105-06). See also Tr. 146 (J.A. 114). Twentymile also constructed the rock chute with two internal monitoring devices that would notify the operator if material stopped moving through the chute. Tr. 163 (J.A. 118). The other chutes at the mine became plugged on a regular basis, as often as every four to five months, and required unplugging by the conveyor maintenance crew. Tr. 171, 190-91, 222, 223, 227-28 (J.A. 120, 125, 133, 134, 135). Finally, the fact that the rock chute became plugged after less than two weeks of operation supports the judge's finding that Twentymile reasonably should have anticipated that it would become plugged on a regular basis. The judge's finding that it was reasonably likely that the rock chute would become plugged on a regular basis does not represent "a gloss of speculation and anticipation," as Twentymile contends (Twentymile Opening Br. 20); it represents an exercise of the judge's authority to draw "reasonable inferences * * * from the evidence." United States Testing Co. v. NLRB, 160 F.3d 14, 18 (D.C. Cir. 1998). Under the "substantial evidence" standard of review, a factfinder's reasonable inferences are owed deference by the Court. Ibid.

    Twentymile argues that unplugging the rock chute was not a "new" task because there were no hazards associated with performing work around the newly-installed rock chute that the miners were not previously trained to recognize in performing other work. Twentymile Opening Br. 24-26. Twentymile is incorrect on two grounds. First, simply because a danger similar to a danger involved in unplugging the rock chute existed elsewhere in the mine does not mean that such a danger would have been recognized by a miner in the context of the rock chute or that the means of avoiding such a danger would have been the same at the rock chute as elsewhere. For example, the design of the rock chute made spills from its multiple access doors more likely than spills elsewhere (where chutes did not have access doors), and taking shelter under the rock chute's platforms (as, by happenstance, miners Winey and Fadely were able to do) was a safety measure unavailable elsewhere. Tr. 40 (J.A. 87).

    Second, the rock chute did pose dangers dissimilar to those encountered elsewhere in the mine. For example, while other transfer chutes at the mine were smaller and angled at approximately 60 degrees from the horizontal, the rock chute descended at a straight 90 degrees. Tr. 181, 222 (J.A. 123, 133). The dangers inherent in the rock chute's unique design included the openings that miners and material could fall through, the access doors that might be opened or, if insecurely closed, come open when they should not, confined working spaces, narrow landings, and high vertical ladders. Tr. 42, 111 (J.A. 88, 105). Indeed, the injuries sustained by miner Webb illustrate precisely what could happen when a miner was permitted to work at the rock chute without task training. [9] The nature of the task training required to be given to miners before they were assigned to unplug the rock chute was described with particularity by Inspector Gibson and included training in "opening and closing doors * * *, ascending and descending of the ladder * * * [, and] hazard recognition" at the chute. Tr. 62 (J.A. 93). See also Exs. G-4, G-12 (J.A. 16, 44-54); Tr. 111, 119 (J.A. 105, 107).

D.    The Judge's Finding that Twentymile Violated 30 C.F.R. 48.7(c) Should Also Be Affirmed Because, As a Subtask Within the General Task of "Beltman," Unplugging the Rock Chute Required New Task Training [10]

    Even if the judge did not act properly in finding that Twentymile reasonably should have anticipated that the rock chute would become plugged on a regular basis -- and, as established above, he did -- the Secretary carried her burden of proof in another manner. As she argued to the judge at the hearing and to the Commission on review, the Secretary carried her burden of proof because she established (1) that the rock chute was an integral part and extension of the mine's existing conveyor system; (2) that the existing conveyor system required the unplugging of transfer chutes on a regular basis; and (3) that the rock chute posed a distinct set of safety hazards to miners working around it. [11]

    The rock chute was an integral part and extension of the mine's conveyor system. Tr. 40-41, 106, 145 (J.A. 87-88, 104, 114). In fact, the rock chute replaced a series of four conveyor belts. Tr. 169 (J.A. 120). The rock chute was one of the mine's several transfer chutes. Tr. 228, 229 (J.A. 135).

    Maintaining the entire conveyor system was a daily activity for the mine's beltmen. Tr. 66-67, 113, 192, 228 (J.A. 94, 106, 125, 135). The position of "beltman" includes working at transfer chutes. See Ex. G-10 (J.A. 38-40) (position description of beltman); Tr. 107-09, 193, 230 (J.A. 104-05, 126, 135). The existing conveyor system required the unplugging of transfer chutes on a regular basis. Tr. 190-92, 223, 227-28 (J.A. 125, 134, 135).

    Finally, working at the rock chute was a "subtask" within the general task of "beltman"; it posed its own distinct dangers and therefore required its own task training. Tr. 109, 149 (J.A. 105, 115). As with any substantially new activity within a miner's general job description (such as operating a new truck assigned to a truck driver or maintaining a new piece of machinery assigned to a mechanic), unplugging the rock chute presented its own specific dangers and thus required specific task training to address those dangers. Tr. 86, 121 (J.A. 99, 108). See Tr. 237 (J.A. 137). A number of those dangers were associated with working around the rock chute regardless of whether the job was to unplug the chute or to perform some other type of maintenance on it. Tr. 86 (J.A. 99). Accordingly, Twentymile should have provided new task training with respect to the rock chute before sending any miners to perform any work at the chute.

    Contrary to Twentymile's suggestion (Twentymile Opening Br. 23-25), it is not sufficient that an operator provide task training only in the dangers associated with a general job description such as "beltman." Tr. 126 (J.A. 109). As Roderic Breland, MSHA Western Regional Manager for Educational Field Services, testified, Twentymile has recognized "elemental breakdowns of job occupations [and] recognize[d] there are tasks within the overall task of a beltman." Tr. 125 (J.A. 109). See also Tr. 235, 237 (J.A. 137). Thus, beltmen were task-trained in belt moves and splices. Ex. G-8 (J.A. 33-37); Tr. 125 (J.A. 109). See also Ex. G-12 (J.A. 44-54). Indeed, Crew Foreman Winey set forth "cleaning plugged chute" as the "task" being performed at the time of the accident on Twentymile's own incident investigation form. Ex. G-11 (J.A. 41); Tr. 238 (J.A. 137).

    The training required for any particular task depends on the miner's work duties and his exposure to dangers. Tr. 112 (J.A. 105). As Winey, Twentymile's own witness, recognized, task training needs to be "updated fairly routinely. It's ongoing." Tr. 240 (J.A. 138). "Partial training" in the general task, i.e., training that adequately addresses the new subtask, is all that is required; in fact, that is the manner in which task training is normally provided. Tr. 120-121, 240, 290 (J.A. 107-08). [12]

    As new tasks are developed at the mine, it is the operator's responsibility to determine what dangers are associated with those new tasks and what task training miners assigned to those tasks will need. Tr. 129-131, 289 (J.A. 110, 150). Miners assigned to such tasks without task training are a danger not only to themselves, but to others working around them. Tr. 44 (J.A. 88).

    In short, as the serious accident in this case illustrates, assignment to perform a new element of an existing task that poses its own set of dangers -- in this case, unplugging the rock chute as part of general conveyor maintenance -- requires task training in that new element. Tr. 86, 98, 107 (J.A. 99, 102, 104). Twentymile's failure to provide such training with respect to unplugging the rock chute violated Section 48.7(c).

II.    THE COMMISSION ACTED PROPERLY IN MODIFYING THE ORDER ISSUED BY THE SECRETARY UNDER SECTION 104(g) OF THE MINE ACT TO A CITATION UNDER SECTION 104(a) OF THE ACT

A.    Twentymile's Argument Is Not Properly Before the Court

    A three-member Commission majority, reasoning that a withdrawal order under Section 104(g) of the Mine Act is statutorily required to specify the miners being withdrawn and to be issued on the spot, and determining that the order issued in this case failed to satisfy those requirements, found that the order was invalid. 26 FMSHRC 672-75 (J.A. 178-81). Emphasizing that the fact of violation survived, however, and exercising the Commission's statutory authority to modify orders, the Commission majority modified the order issued under Section 104(g) of the act to a citation under Section 104(a). 26 FMSHRC at 672 (J.A. 178) (citing Section 105(d) of the Act, 30 U.S.C. 815(d)). [13]

    Twentymile asserts that the Commission acted improperly because, Twentymile argues, a withdrawal order under Section 104(g) is the only remedy the Mine Act permits for failure to train miners. Twentymile Opening Br. 29-31. Twentymile failed to urge this argument before the Commission, however, either during oral argument, when the Commission sua sponte raised the possibility of modifying the Section 104(g) order to a Section 104(a) citation, or by filing a petition for reconsideration after the Commission issued its decision. See 29 C.F.R. 2700.78 (permitting parties to file petitions for reconsideration). Section 106(a)(1) of the Mine Act, 30 U.S.C. 816(a)(1), states that, absent "extraordinary circumstances," "[n]o objection that has not been urged before the Commission shall be considered by the court * * *." Because Twentymile failed to urge the argument in question before the Commission, and because that failure is not excused by the existence of extraordinary circumstances, the argument cannot be considered by the Court. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982) (applying statutory language identical to Section 106(a)(1)'s); Contractors' Labor Pool, Inc. v. NLRB, 323 F.3d 1051, 1061-62 (D.C. Cir. 2003) (same); Lee Lumber & Building Material Corp. v. NLRB, 310 F.3d 209, 216-17 (D.C. Cir. 2002) (same).

B.    Twentymile's Argument Is Not Persuasive

    In any event, Twentymile's argument is unpersuasive. Section 104(a) states in relevant part:

If, upon inspection or investigation, the Secretary or [her] authorized representative believes that an operator of a coal or other mine * * * has violated this Act, or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, [s]he shall, with reasonable promptness, issue a citation to the operator.

30 U.S.C. 814(a) (emphasis supplied). The language of Section 104(a) could hardly be plainer: the Secretary is authorized to issue a citation if she believes that a mine operator has violated any standard. See Otis Elevator Co. v. Secretary of Labor, 921 F.2d 1285, 1290 (D.C. Cir. 1990) ("the phrase 'any independent contractor performing services * * * at [a] mine' means just that -- any independent contractor performing services at a mine") (footnote omitted) (discussing Section 3(d) of the Mine Act, 30 U.S.C. 802(d)).

    Nothing in Section 104(g) militates against such a reading of the language of Section 104(a). [14] Section 104(g) merely authorizes the Secretary to issue a withdrawal order if she finds that a miner has not received the training required by the Secretary; it contains no language that relates in any way to issuance of a citation under Section 104(a) for violation of a training standard. It is a fundamental principle of statutory construction that when two statutory provisions are involved, the provisions must be interpreted, if possible, in a manner that gives effect to the language of both. Independent Insurance Agents of America, Inc. v. Hawke, 211 F.3d 638, 643-44 (D.C. Cir. 2000); Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997); Qi-Zhuo v. Meissner, 70 F.3d 136, 139 (D.C. Cir. 1995). An interpretation that the Mine Act both authorizes the Secretary to issue a Section 104(g) order withdrawing untrained miners and authorizes the Secretary to issue a Section 104(a) citation alleging a training violation comports with that principle. [15] Twentymile's interpretation flouts that principle because it effectively rewrites the statutory language by inserting the word "only" into the Act where Congress did not use it (i.e., Section 104(g)) and deleting the word "any" from the Act where Congress did use it (i.e., Section 104(a)).

    In addition to disregarding the statutory language, Twentymile's argument defies common sense. As the legislative history explains, inadequate miner training was one of Congress' principal concerns in enacting the Mine Act. S. Rep. No. 95-181 at 4-5, 49-51, reprinted in Leg. Hist. at 592-93, 637-39. If Twentymile's argument were accepted, however, the Secretary could take enforcement action against inadequate training -- i.e., issue a Section 104(g) withdrawal order -- only if an MSHA inspector were on the spot, i.e., present when inadequately trained miners were present. [16] Under such a scheme, training violations would be more difficult for the Secretary to combat than other violations -- which, under the terms of Section 104(a), an MSHA inspector who believes a violation "has occurred" may cite even if he was not on the spot when it occurred. See Emerald Mines Co. v. FMSHRC, 863 F.2d 51, 58 (D.C. Cir. 1988) (interpreting similar terms in Section 104(d)(1) of the Act, 30 U.S.C. 814(d)(1)). The notion that Congress intended the Secretary to have diminished enforcement authority when combating one of the problems with which Congress was most concerned is "anomalous at best." Chemical Mfrs. Ass'n, 919 F.2d at 165.

    In short, Congress did not intend the Secretary to have diminished enforcement authority with respect to training violations; it intended her to have enhanced enforcement authority -- i.e., authority to issue a Section 104(g) order and authority to issue a Section 104(a) citation -- with respect to training violations. [17] The legislative history does not describe the Section 104(g) order as an exclusive enforcement sanction; it describes it as a "special enforcement sanction[.]" S. Rep. No. 95-181 at 50, reprinted in Leg. Hist. at 638.

    Implicitly invoking the maxim expressio unius est exclusio alterius, Twentymile attempts to prop up its argument by pointing to the fact that Section 107(a) of the Mine Act, 30 U.S.C. 817(a), specifically states that the issuance of a withdrawal order does not preclude the issuance of Section 104(a) citation, and Section 104(g) does not so state. Twentymile Opening Br. 29-31. The expressio unius maxim, however, is a non-dispositive principle whose force in a particular situation "'depends entirely on context * * *.'" Martini v. Federal National Mortgage Ass'n, 178 F.3d 1336, 1342-43 (D.C. Cir. 1999), cert. dismissed, 528 U.S. 1147 (2000) (quoting Shook v. District of Columbia Financial Responsibility & Management Assistance Auth'y, 132 F.3d 775, 782 (D.C. Cir. 1998)). The maxim loses force when there are "other plausible explanations for an omission" -- a possibility that "grow[s] more likely as the contrasted contexts grow more remote from each other." Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773, 779 (D.C. Cir.), cert. denied, 498 U.S. 849 (1990). This Court has frequently found the maxim, standing alone, to be "too thin a reed" to support an argument that Congress has unambiguously addressed an issue (Martini, 178 F.3d at 1343 (citation and internal quotation marks omitted) (collecting cases)), and has stated that an agency's refusal to read an ambiguous statute in the manner suggested by the maxim is entitled to deference if the agency's interpretation "is otherwise reasonable." Texas Rural Legal Aid, Inc. v. Legal Services Corp., 940 F.2d 685, 694 (D.C. Cir. 1991).

    In this case, there is a plausible explanation other than Twentymile's for the fact that Section 107(a) specifies that the issuance of a withdrawal order does not preclude the issuance of a Section 104(a) citation, and Section 104(g) does not. Section 104(g) pertains to situations that are violations of a training standard. Because Congress had already made clear at the beginning of Section 104 that the Secretary could issue a Section 104(a) citation for a violation of "any standard" -- a phrase that plainly included a violation of a training standard -- Congress had no need to make that clear again in Section 104(g). In contrast, Section 107(a) pertains to situations -- "imminent hazards" -- that may or may not be violations of a standard. See Section 3(j) of the Mine Act, 30 U.S.C. 802(j) (defining "imminent danger"). Because the situations Section 107(a) addresses are not necessarily violations of a standard, Congress may have felt a need to make clear that, if the situation in a particular case were a violation of a standard as well as an imminent danger, the Secretary could issue a Section 104(a) citation as well as a Section 107(a) withdrawal order.

    In short, because Section 107(a) is relatively remote in placement from Section 104(a), and because Section 107(a) addresses a different class of situations than Section 104(a), Congress may well have felt a need in drafting Section 107(a) "to clarify what might be doubtful" -- "in Macbeth's words, 'to make assurance doubly sure'" -- a need it did not feel in drafting Section 104(g). Shook, 132 F.3d at 782. Particularly in light of such a plausible explanation, Twentymile's reliance on the expressio unius maxim is insufficient to support an argument that, as shown above, is inconsistent with the statutory language and common sense to begin with.

III.    AS MODIFIED BY THE COMMISSION, THE SECTION 104(a) CITATION GAVE TWENTYMILE ADEQUATE NOTICE OF THE VIOLATION ALLEGED AGAINST IT

    Twentymile argues that the Section 104(g) order, as amended at the hearing and subsequently modified to a Section 104(a) citation by the Commission, did not give it adequate notice of the violation alleged against it. Twentymile Opening Br. 31-37. Specifically, Twentymile argues that the citation failed to inform it of the "identity of the miners to be trained" (Twentymile Opening Br. 32-35) and of the "identity of the task on which the miners needed to be trained." Twentymile Opening Br. 35-37. The Commission unanimously found that Twentymile received adequate notice of the violation alleged against it. 26 FMSHRC at 671 (J.A. 177). The Commission was correct.

A.    Applicable Principles

    In interpreting the statutory requirements pertaining to citations issued under the Occupational Safety and Health Act, this Court has stated:

[I]t is a familiar rule that administrative pleadings are very liberally construed and very easily amended. The rule has particular pertinence here, for citations under the * * * Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by [her] inspectors.

National Realty & Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973). "'The most important characteristic of administrative pleadings is their unimportance. And experience shows that unimportance of pleadings is a virtue. * * *.'" Ibid. (quoting 1 K. Davis Administrative Law Treatise 8.04 at 523 (1958)). Accord Donovan v. Royal Logging Co., 645 F.2d 822, 826-27 (9th Cir. 1981); Minerals Industries & Heavy Construction Group v. OSHRC, 639 F.2d 1289, 1292-93 (5th Cir. 1981). The key concepts in evaluating the adequacy of administrative pleadings are "fair notice" (National Realty, 489 F.2d at 1264) and lack of "prejudice." Royal Logging, 645 F.2d at 827.

    The primary purpose of notice pleading is to enable the responding party to defend itself in litigation. as this Court has stated in discussing the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure:

The Federal Rules [of Civil Procedure] establish a regime in which simplified pleadings provide notice of the nature of claims, allowing parties later to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues through the liberal opportunity for discovery and other pretrial procedures established by the Rules.

Atchinson v. District of Columbia, 73 F.3d 418, 421 (D.C. Cir. 1996) (internal quotation marks omitted). Accord Caribbean Broadcasting System, Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1085-86 (D.C. Cir. 1998). "In other words, a plaintiff need not allege all the facts necessary to prove its claim so long as it provides enough factual information to make clear the substance of that claim." Caribbean Broadcasting, 148 F.3d at 1086 (citing Atchinson, 73 F.3d at 421-22).

B.    The Citation Was Adequately Specific Based on the Order as Issued

    Section 104(a) provides in relevant part:

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation.

(Emphasis supplied). Order No. 7618153, as written by the MSHA inspector and issued on June 16, 2000, referred to "[p]ersonnel * * * who had reason to work from or travel on ladders and landings of the 'Rock Chute' * * *" and stated: "The 'Rock Chute' is new to this * * * mine and the miners listed above had little, if any, training pertaining to such an installation and unplugging the plugged rock chute."

    Nothing in the language of Section 104(a) required the inspector to specify by name the miners whose lack of training constituted the violation. As to which miners were referred to, the judge reasoned:

Twentymile, not the inspector, controlled work assignments at the mine. Presumably, the company knew whom it would assign "to work from or travel on ladders and landings." * * *. [A] class description * * * was permissible because of the operator's presumed knowledge.

25 FMSHRC at 382 (J.A. 162). Importantly, if even one of the miners referred to in the citation was assigned to perform a new task without receiving new task training, the Secretary established a violation.

    Twentymile's argument that the Secretary was required to notify it at the time the order was issued of the name of every miner who needed task training in order "to enable the operator to discern what conditions require abatement (i.e., which miners required training) and to promptly abate the violation" (Twentymile Opening Br. 34) is unpersuasive for two reasons. First, the violation occurred, and was considered by the Secretary to have been abated, long before the order was issued. 26 FMSHRC at 670, 675 (J.A. 176, 181). Accordingly, at the time it was cited, Twentymile did not have to do anything to abate the violation. Second, and in any event, Section 104(a), unlike Section 104(g), does not involve a withdrawal order requiring that miners be trained before they can be permitted to re-enter the mine. In fact, Section 104(a) does not specify any particular manner in which an operator must abate a violation. For this reason, training of the miners involved in the violation was not necessarily the only manner in which to achieve abatement. Indeed, having long since removed the miners involved in the violation from the vicinity of rock chute, Twentymile achieved abatement by agreeing to properly train miners before assigning them to perform work at the rock chute in the future. As the Commission noted,

[b]ecause the assignment of miners to the task of unplugging the chute is wholly within Twentymile's control, for purposes of abatement, the class of miners requiring training must necessarily be broadly defined to identify potential miners who may be assigned to the same task in the future and, thus, also require task training.

26 FMSHRC at 675 (J.A. 181).

    As to the task for which training was required, the judge, noting that "the order was issued in the context of the accident investigation," concluded:

Everyone at the mine knew the accident occurred during Twentymile's attempts to unplug the rock chute. The order described the task by describing what the subject miners were doing: "These persons entered the area to work at unplugging the chute before they received safety training." There was no doubt as to the task for which training was required.

25 FMSHRC at 382 (J.A. 162). The Commission, noting that Twentymile's own accident report described the task as "cleaning plugged chute," found that the judge's conclusion "is well supported by the record." 26 FMSHRC at 676 (J.A. 182). Because both the names of the miners and the nature of the task were either already known to or readily ascertainable by the operator of the mine, the judge's reasoning is persuasive. See Craftmatic Securities Litigation v. Kraftsow, 890 F.2d 628, 645 (3d Cir. 1990) (specificity requirements for pleading under Federal Rule of Civil Procedure 9(b) are relaxed "when factual information is peculiarly within the defendant's knowledge or control"); United States ex rel. Russell v. Epic Healthcare Management Group, 193 F.3d 304, 308 (5th Cir. 1999) (same).

    Indeed, as the judge found, "the record is devoid of evidence that the wording of the order in any way hindered Twentymile in its ability to present a cogent case." 25 FMSHRC at 382 (J.A. 162). The record shows that Twentymile understood the allegations against it well enough both to withdraw the six miners referred to in the order (Tr. 24, 28 (J.A. 83, 84)) and to defend itself at the hearing. See, e.g., Tr. 60-61 (J.A. 92-93). Simply stated, the judge properly found, and Twentymile does not meaningfully dispute, that Twentymile suffered no prejudice from the wording of the order as issued. The specificity requirements of Section 104(a) were therefore satisfied.

C.    The Citation Was Adequately Specific Based on the Order as Amended

    The judge found that, even if the order lacked sufficient specificity as written, "the flaw was corrected when the order was amended without objection to include the names of those who were not given the requisite task training." 25 FMSHRC at 382 (J.A. 162). Not only did the Secretary amend the order to specify the six named miners at the hearing (Tr. 71 (J.A. 95)), she provided Twentymile with the names of the six miners in her responses to two sets of interrogatories dating back to September 12, 2000 (less than three months after the order was issued and more than 20 months before the hearing). Exs. R-1, R-2 (J.A. 69-72); Tr. 71 (J.A. 95). As the Commission stated, "In light of this identification of the miners included in the citation, Twentymile cannot seriously contest its ability to respond to the violation alleged at trial." 26 FMSHRC at 675 (J.A. 181).

CONCLUSION

    For the reasons stated above, the Court should affirm those portions of the Commission's decision affirming Twentymile's violation of 30 C.F.R. 48.7(c), modifying the Section 104(g) order to a Section 104(a) citation, and sustaining the Section 104(a) citation as adequately specific.

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), D.C. Cir. Rules 28(d) and 32(a)(2), and the Court's order of January 12, 2005, I hereby certify that this Response Brief for the Secretary of Labor contains 9,251 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 Response Brief for the Secretary of Labor were served by overnight delivery this 28th day of March, 2005, on:

R. Henry Moore, Esq.
Jackson Kelly
Three Gateway Center
401 Liberty avenue, Suite 1340
Pittsburgh, Pennsylvania 15222

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

___signed_______
Jerald S. Feingold
Attorney


Footnotes

[1]    Commissioners Beatty, Jordan, and Young affirmed the judge's finding of a violation on this ground. 26 FMSHRC at 671 (J.A. 177). As discussed below in subsection D, Chairman Duffy and Commissioner Suboleski affirmed the judge's finding of a violation on the ground that, as a subtask within the general task of "beltman," unplugging the rock chute required new task training. That ground was the ground the Secretary advanced before the judge.

[2]    New task training may be given "by a qualified trainer, or a supervisor experienced in the assigned task, or other person experienced in the assigned task." 30 C.F.R. 48.7(e). See Tr. 195, 253 (J.A. 126, 141).

[3]    It is uncontested that, if any task training was required in this case, it was task training required by Section 48.7(c). 25 FMSHRC at 383 (J.A. 163); Twentymile Opening Br. 16; Tr. 113 (J.A. 106). It is also uncontested that none of the six miners named in the amended order received task training in unplugging the rock chute before engaging in that activity on June 6, 2000. Ex. G-8 (J.A. 33-37); Tr. 32, 39, 125, 128 (J.A. 85, 87, 109).

[4]    Citing the definition of "regular" in Webster's Third New Intn'l Dictionary (2002) at 1913, the judge correctly held that the phrase "regular basis" in Section 48.2(f) connotes "repetition and recurrence." 25 FMSHRC at 384 (J.A. 164). The judge reasonably concluded "[w]hile there may be a point at which a recurrence is so distant as to render it outside the standard, a job that recurs as much as two or three times a year is of the kind * * * contemplated within [the standard's] meaning." Ibid. See also 26 FMSHRC at 676-78 (J.A. 182-84). It is established law that statutory and regulatory terms are ordinarily to be given their common dictionary meanings. Indiana Michigan Power Co. v. Dept. of Energy, 88 F.3d 1272, 1275 (D.C. Cir. 1996); Walker Stone Co., Inc. v. Secretary of Labor, 156 F.3d 1076, 1081 (10th Cir. 1998).

    The dictionary definition of "regular" applies to something that recurs at "stated, fixed or uniform intervals" (emphasis supplied) -- and the judge reasonably stated that the unplugging job would recur as much as two or three times a year. R. Lincoln Derrick, Twentymile's own safety manager, acknowledged that task training was given for the analogous activity of moving longwall equipment, even though such moves occurred only approximately every eight months. Tr. 294-95 (J.A. 151-52).

[5]    Predicting future events on the basis of presently known facts is hardly a practice unheard of in the law. For example, "[h]earings on preliminary injunctions necessarily look to the future and decisions must rest on comparative, tentative assessments of the course of events if the injunction is issued, and if it is not." FTC v. Weyerhaeuser Co., 665 F.2d 1072, 1080 (D.C. Cir. 1981).

[6]    Twentymile is also mistaken in suggesting that the judge erred in considering the history of chutes becoming plugged "regularly in other mines." Twentymile Opening Br. 20. The judge reasonably confined his analysis to the construction of the rock chute and to the history of other chutes at this mine becoming plugged. 25 FMSHRC at 384 (J.A. 164). See Tr. 171, 190-91, 222, 223, 227-28 (J.A. 120, 125, 133, 134, 135).

[7]    There is, of course, no record evidence as to whether the rock chute became plugged again after the evidentiary hearing closed in May 2002.

[8]    Unless the requirement for task training was limited to jobs that occur on a regular basis, it would be difficult, if not impossible, to find someone at the mine qualified to instruct miners in such tasks.

[9]    The record indicates that the lack of task training probably contributed to the accident. Ex. G-5 (J.A. 26-27); Tr. 117, 239 (J.A. 107, 138).

[10]    Commissioner Suboleski and Chairman Duffy concurred in finding that the standard was violated, but did so on the basis of this rationale. 26 FMSHRC at 671, 689-91, 692 (J.A. 177, 195-97, 198). Contrary to Twentymile's suggestion (Twentymile Opening Br. 22), Commissioner Suboleski did "join in the majority decision as to the fact of the violation"; he simply did so on the basis of the rationale advanced by the Secretary at trial, rather than on the basis of the analysis adopted by the judge.

[11]    The judge and the Commission did not rely on or address this argument below. On appeal to the Commission, however, the Secretary, as the prevailing party on the merits, may advance an argument that would provide another avenue by which the Commission could have reached the same result. Dandridge v. Williams, 397 U.S. 471, 475-76 n.6 (1970); LaShawn A., by Moore v. Kelly, 990 F.2d 1319, 1325 (D.C. Cir. 1993), cert. denied, 510 U.S. 1044 (1994).

[12]    Edwin Brady, Twentymile's conveyance manager, acknowledged that there are numerous "tasks within the job of beltman" and that "[a]n underground conveyance system is one that continuously changes * * *." Tr. 155-56, 195 (J.A. 116, 126). Brady stated that Twentymile provided task training for several subtasks performed by beltmen, including belt moves, splicing, and winders. Tr. 203-04 (J.A. 128).

[13]    Commissioners Suboleski and Jordan found it unnecessary to reach this issue. 26 FMSHRC at 689 n.28, 693 n.29 (J.A. 195 n.28, 199 n. 29). The Secretary believes that the majority was authorized to modify the order to a citation; the Secretary takes no position as to whether, in the circumstances, the majority was required to do so.

[14]    Section 104(g) of the Mine Act provides in relevant part:

    If, upon any inspection or investigation * * * the Secretary * * * shall find employed at a coal or other mine a miner who has not received the requisite safety training as determined under section 115 of the Act, the Secretary * * * shall issue an order under this section which declares such miner to be a hazard to himself and to others, and requiring that such miner be immediately withdrawn from the coal or other mine, and be prohibited from entering such mine until [the] Secretary determines that such miner has received the training required * * *.

30 U.S.C. 814(g)(1).

[15]    For the reasons stated above, the Secretary submits that the interpretation advanced above reflects the plain meaning of the statute. If the statute does not have a plain meaning -- i.e., if it is ambiguous -- the Secretary submits that her interpretation is reasonable and entitled to deference. "[I]n the statutory scheme of the Mine Act, 'the Secretary's litigating position [before the Commission] is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of a health and safety standard,' and is therefore deserving of deference." Excel, 334 F.3d at 6 (citation omitted). An agency interpretation is entitled to "'particular deference'" if it is an interpretation "'of longstanding duration[.]'" Id. at 7-8 (quoting Barnhart v. Walton, 535 U.S. 212, 220 (2002)). Although the Secretary did not issue a Section 104(a) citation in this case, the Secretary's longstanding practice has been to issue Section 104(a) citations, where appropriate, in training cases. See, e.g., Western Fuels-Utah, 900 F.2d at 319-20 (the Secretary issued a Section 104(g) order and a Section 104(a) citation); Mingo Logan Coal Co., 19 FMSHRC 246, 247 (1997), aff'd, 133 F.3d 916 (4th Cir. 1998) (Table). See generally MSHA Program Policy Manual, Vol. I, "Section 104(g)(1) Orders of Withdrawal -- Untrained Miners" (May 16, 1996) (describing the circumstances in which MSHA issues a Section 104(a) citation for a training violation), available at www.msha.gov ("Compliance Info").

[16]    MSHA inspectors are not always present in mines. MSHA is statutorily required to inspect underground mines four times a year and surface mines two times a year. Section 103(a) of the Mine Act, 30 U.S.C. 813(a).

[17]    Moreover, Section 110(a) of the Mine Act provides:

    The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of this Act, shall be assessed a civil penalty by the Secretary * * *.

30 U.S.C. 820(a). If the Secretary were precluded from citing training violations because they were not observed while they were occurring, but were discovered after-the-fact, she would be unable to fully implement the clear mandate of Section 110(a).