Coeur Alaska, Inc. v. Fmshrc

FILED
NOT FOR PUBLICATION
JUN 21 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
COEUR ALASKA, INC., No. 16-73682
Petitioner,
v.
FEDERAL MINE SAFETY AND MEMORANDUM*
HEALTH REVIEW COMMISSION and
SECRETARY OF LABOR,
Respondents.
On Petition for Review of an Order of the
Federal Mine Safety & Health Administration
Argued and Submitted June 13, 2018
Anchorage Old Federal Building, Alaska
Before: THOMAS, Chief Judge, and CALLAHAN and BEA, Circuit Judges.
Coeur Alaska, Inc. (“Petitioner”) petitions for review of an administrative
law judge’s decision upholding, in whole or in part, seven citations under
30 C.F.R. § 57.3360 and two citations under 30 C.F.R. § 57.3200. We have
jurisdiction under 30 U.S.C. § 816(a)(1), and we deny the petition. Because the
parties are familiar with the history of this case, we need not recount it here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I
Section 57.3360 requires a determination that “ground support,” in general,
“is necessary.” “Ground conditions[ ] or mining experience in similar ground
conditions in the mine” inform this determination. § 57.3360; see also Safety
Standards for Ground Control at Metal and Nonmetal Mines, 51 Fed. Reg. 36,192,
36,192 (Oct. 8, 1986) (codified at 30 C.F.R. pts. 56 & 57) (“[G]round conditions
and mining experience are the criteria for determinating if support is required”).
When “ground support . . . is necessary,” a mine company violates § 57.3360 by
failing to “design[ ], install[ ], [or] maintain[ ]” any feature of the relevant mine’s
ground support system meant “to control the ground.” § 57.3360.
The ALJ applied the correct interpretation of §57.3360, and substantial
evidence supports his decision to affirm the seven § 57.3360 citations. First,
Petitioner does not dispute that “ground support” was “necessary” at the locations
of the seven § 57.3360 citations. Even if this issue was disputed, the ALJ
confirmed the need for ground support by discussing the existence of “fractured or
separating rock” in the relevant areas.
Second, the ALJ demonstrated that the wire mesh “was installed and
intended to act as [ground support],” and was not properly maintained at the
relevant areas. Petitioner’s ground control manual confirmed that “[ground]
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[s]upport consists of two components, rock reinforcement which are the bolts and
surface support which are the plates, mats, and mesh.” The presence of “torn or
rusted wire mesh. . . near or adjacent to the areas of loose rock” also revealed that
Petitioner failed to maintain the wire mesh.
II
The ALJ considered the appropriate factors when making his negligence
classifications, which substantial evidence supports. Contrary to Petitioner’s
contention, the ALJ considered proposed mitigating evidence, including
Petitioner’s training and rehab programs, when making his seven high negligence
classifications. See 30 C.F.R. § 100.3, Table X (noting that “high negligence”
requires that “there are no mitigating circumstances”). He reasonably rejected this
evidence because Petitioner had failed to follow the mitigating programs.
The ALJ also supported his rejection of Petitioner’s argument that it lacked
constructive knowledge of all nine violations. 30 C.F.R. § 100.3, Table X (noting
that both high and moderate negligence classifications require that “[t]he operator
knew or should have known of the violative condition or practice”). For example,
he cited rust on the wire mesh, the large size of loose ground, the presence of
vehicles and workers in the area, and Petitioner’s statements that the areas were
rehabbed shortly before the inspection as evidence of constructive knowledge.
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III
Substantial evidence supports the ALJ’s decision to uphold six of the
“significant and substantial” classifications under the four-element test from
Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1 (Comm’n 1984).
As to Petitioner’s challenge to the second element, the ALJ appropriately
relied on photographs and testimony to demonstrate that unmaintained wire mesh
and the presence of loose material nearby were at least “reasonably likely” to
contribute to the hazard of loose ground falling though broken wire mesh. Sec’y of
Labor v. Newtown Energy, Inc., 38 FMSHRC 2033, 2038 (Comm’n 2016).1
As for Petitioner’s challenges to the third and fourth elements, the ALJ made
the reasonable conclusion that the hazard of loose material falling through
unmaintained wire mesh was “reasonably likel[y]” to result in a reasonably serious
injury. Sec’y of Labor v. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280 (Comm’n
2010) (noting that the third Mathies element requires assessing whether the hazard
contributed to by the violation, not the violation itself, is reasonably likely to result
in injury).
1
Because substantial evidence supports the ALJ’s conclusion that the
unmaintained wire mesh was “reasonably likely” to contribute to a safety hazard,
we need not—and do not—consider whether the second Mathies step requires a
lesser showing.
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IV
The ALJ did not abuse his discretion in upholding four of the specially
assessed penalties. Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1086 (10th
Cir. 1998) (noting abuse of discretion review standard). The ALJ considered the
six required factors when making his special penalty assessments. See 30 U.S.C.
§ 820(i) (listing factors); 30 C.F.R. §§ 100.3(a)(1), 100.5(b) (same). Of these six,
four factors—namely, Petitioner’s negligence, the gravity of the violations,
Petitioner’s large size, and the fact that the special assessments would not prevent
Petitioner from continuing business—support the ALJ’s special assessments.
V
Finally, we lack jurisdiction to review the Federal Mine Safety and Health
Review Commission’s decision to decline review of the ALJ’s decision. 30 U.S.C.
§ 823(d)(2)(A)(i) (“Review by the Commission shall not be a matter of right but of
the sound discretion of the Commission.” (emphasis added)); see also 30 U.S.C.
§ 823(d)(1) (“The decision of the administrative law judge of the Commission
shall become the final decision of the Commission . . . unless . . . the Commission
has directed that such decision shall be reviewed by the Commission . . . .”).
PETITION DENIED.
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