195 F.3d 42 (D.C. Cir. 1999)
Cyprus Emerald Resources Corporation, Petitionerv.Federal Mine Safety and Health Review Commission and Secretary of Labor, Respondents
Nos. 98-1442 and 98-1548
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 17, 1999Decided November 5, 1999

On Petitions for Review of an Order of the Federal Mine Safety and Health Review Commission
R. Henry Moore argued the cause for the petitioner. Heather A. Wyman entered an appearance.
Colleen A. Geraghty, Attorney, United States Department  of Labor, argued the cause for the respondents.  W. Christian Schumann, Counsel, United States Department of Labor, was on brief.  Norman M. Gleichman, General Counsel, Mine Safety and Health Review Commission, and Robin A.  Rosenbluth, Attorney, United States Department of Labor,  entered appearances.
Before:  Ginsburg, Henderson and Randolph, Circuit  Judges.
Opinion for the court filed by Circuit Judge Henderson.
Concurring opinion filed by Circuit Judge Randolph.
Karen LeCraft Henderson, Circuit Judge:


1
Section  104(d)(1) of the Federal Mine Safety and Health Act of 1977  (Act) provides in part:


2
If, upon any inspection of a coal or other mine, an authorized representative of the Secretary [of Labor] finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not causeimminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this chapter.


3
30 U.S.C. § 814(d)(1).  Designation of a violation as "significant and substantial" under section 104(d)(1) can have significant consequences to a mine operator.  See 30 U.S.C.  § 814(d), (e).1  RAG Emerald Resources Corp. (Emerald), formerly known as Cyprus Emerald Resources Corp., petitions for review of a Federal Mine Safety Health Review  Commission (FMSHRC, Commission) decision upholding a  finding that Emerald's violation of 30 C.F.R. § 50.11(b)  (50.11(b)) was "significant and substantial."  Secretary of  Labor v. Cyprus Emerald Resources Corp., 20 F.M.S.H.R.C.  790 (1998).  Emerald had challenged the finding on the  ground that the plain language of section 104(d)(1) precludes  designation of the 50.11(b) violation as "significant and substantial" because 50.11(b) is not "a mandatory health or safety  standard" as section 104(d)(1) requires.2  The Commission  determined that the statute is ambiguous on the subject and  that the Commission could therefore reasonably construe the  statutory language to permit such a finding.  The Commission was wrong.  Section 104(d) unambiguously authorizes a  "significant and substantial" finding for violation only of a  mandatory health or safety standard.  We therefore hold that  a "significant and substantial" finding is permissible in a  citation charging violation of a mandatory safety or health standard only3 and, accordingly, grant Emerald's petition for  review.

I.

4
Emerald operates a coal mine and processing plant in  Greene County, Pennsylvania.  Refuse from the plant is  ordinarily used to build up a nearby impoundment embankment pursuant to a disposal plan approved by the Mine  Safety and Health Administration (FMSHA) in 1983.  When  road or weather conditions prevent hauling refuse to the  impoundment, Emerald takes it to a "short-haul" area closer  to the processing plant.  On April 2, 1993 FMSHA received a  complaint that part of a short-haul refuse pile had collapsed  and slipped into a "slurry pond."4  An FMSHA inspector  issued an "imminent danger" withdrawal order pursuant to  section 107(a) of the Act, 30 U.S.C. § 817(a),5 and upon a  subsequent inspection issued three citations charging "significant and substantial" and "unwarrantable" violations of mandatory safety standards (30 C.F.R. §§ 77.215(f), 77.215(h) and  77.1608(b)) under section 104(d)(1) for improperly construct-ing and using vehicles in the refuse pile.  During his investigation, the inspector learned of a previous refuse pile collapse  on December 27, 1992, for which the inspector also issued  citations alleging "significant and substantial" and "unwarrantable" violations of the same standards.  In addition, he  issued citations for violating two additional regulations that  are not mandatory standards:  30 C.F.R. § 50.10, for failing to  notify FMSHA of the earlier collapse, and 30 U.S.C.  § 50.11(b), for failing to investigate the collapse.  The inspector designated the 50.11(b) violation as "significant and substantial."


5
After conducting a hearing, the administrative law judge  issued a decision dated November 29, 1995 upholding each of  Emerald's citations.  Secretary of Labor v. Cyprus Emerald  Resources Corp., 17 F.M.S.H.R.C. 2086 (1995).  In the decision, the judge specifically concluded that violation of a  regulation such as 50.11(b), which is not a mandatory standard, may be designated "significant and substantial."6 Emerald petitioned the Commission to review the judge's decision.


6
In a decision dated August 24, 1998 the Commission, inter  alia, upheld the Secretary's designation of the 50.11(b) violation as "significant and substantial."  The three-commissioner  majority concluded that section 104 was ambiguous on the  issue and could therefore be construed to permit "significant  and substantial" designation of such a violation.7  Emerald  petitioned for review of the Commission's decision.

II.

7
The outcome of this proceeding rests on the interpretation  of the single statutory sentence quoted above and repeated  here:


8
If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this chapter.


9
30 U.S.C. § 814(d)(1) (emphasis added).  If in drafting this  provision " 'Congress has directly spoken to the precise question at issue,' " we "must give effect to Congress's 'unambiguously expressed intent.' "  Secretary of Labor v. FMSHRC,  111 F.3d 913, 917 (D.C. Cir. 1997) (quoting Chevron USA,  Inc. v. Natural Resources Defense Council, Inc., 467 U.S.  837, 842 (1984)).  "If 'the statute is silent or ambiguous with  respect to the specific issue,' we ask whether the agency's  position rests on a 'permissible construction of the statute.' "Id. (quoting Chevron, 467 U.S. at 843).  We conclude, as  Emerald has maintained from the start, that the highlighted  portion of the quoted sentence plainly and unequivocally  conditions a "significant and substantial" finding (as well as  an "unwarrantable" one) upon an initial finding "that there  has been a violation of [a] mandatory health or safety standard."  As the two dissenting Commissioners observed, "The  language of the Act is inescapable on this point."  20  F.M.S.H.R.C. at 826-27 n.1.  We therefore hold that the statute does not authorize the FMSHA to designate as "significant and substantial" a violation of a regulation such as  50.11(b) that is not a mandatory health or safety standard.


10
Despite the clarity of the relevant language, the Commission suggests a Chevron detour around the statute's plain  meaning.  We find it impassable.  The Commission asserts  that the quoted statutory language is somehow rendered  ambiguous by its reference to "any citation given to the  operator under [chapter 22 of Title 30]," that is to any citation  authorized by section 104(a).  The Commission's reasoning, as  far as we can discern it, runs thus:  (1) section 104(d)(1) refers  to a citation issued under section 104(a), which is the source  of the Commission's authority to issue all citations, including  those containing "significant and substantial" findings;  (2)  section 104(a) treats all violations identically, whether of a  statutory provision, of a mandatory standard or of a regulation that is not a standard;  (3) therefore, it is ambiguous  whether the "significant and substantial" authority in section  104(d)(1) also applies equally to all violations.  The Commission's third point simply does not follow from the other two; and, besides, it ignores the unambiguous language that the  Congress used.


11
The Commission has also suggested we should ignore the  statute's plain meaning because without authority to make a  "significant and substantial" finding for violation of a regulation that is not a mandatory standard, FMSHA will be unable  to enforce such regulations and the Congress's intent to  promote safety and prevent accidents will therefore be  thwarted.  We find the Commission's concerns overblown. We believe the Act provides adequate means to enforce such  regulations, including section 107(a) "imminent danger" withdrawal orders, section 104(a) citations and section 110(a) civil  penalties, see 30 U.S.C. § 820(a).  If the Secretary of Labor  finds a particular practice or condition so dangerous as to  require the sanctions provided in section 104(d) and (e), she  may promulgate an appropriate mandatory standard under  section 101, 30 U.S.C. § 811, the violation of which may  properly be found "significant and substantial."  Given these  alternative measures, we do not believe this is one of the " ' "rare cases [in which] the literal application of a statute  will produce a result demonstrably at odds with the intentions  of its drafters." ' "  Davis County Solid Waste Management  v. United States EPA, 101 F.3d 1395, 1405 (D.C. Cir. 1996)  (quoting United States v. Ron Pair Enters., Inc., 489 U.S.  235, 242 (1989) (quoting Griffin v. Oceanic Contractors, Inc.,  458 U.S. 564, 571 (1982))).


12
For the preceding reasons, we grant Emerald's petition for  review, reverse the Commission's 50.11(b) "significant and  substantial" determination and remand for appropriate administrative action.


13
So ordered.



Notes:


1
 If the violation is found to be both "significant and substantial"  and "caused by an unwarrantable failure of [the] operator to comply  with [the] mandatory health or safety standards," section 104(d)(1)  requires a withdrawal order for a second mandatory standard  violation caused by an "unwarrantable failure to comply" within 90  days of the first.  30 U.S.C. § 814(d)(1).  Section 104(d)(2) requires  a second withdrawal order for "violations similar to those that  resulted in the issuance of the [first] withdrawal order."  Id. § 814(d)(2).  Section 104(e)(1) requires withdrawal for "any violation of a mandatory health or safety standard which could significantly and substantially contribute to the cause and effect of a coal  or other mine safety or health hazard" within 90 days after the  operator has been notified of "a pattern of violations of mandatory  health or safety standards in the coal or other mine which are of  such nature as could have significantly and substantially contributed  to the cause and effect of coal or other mine health or safety  hazards."  Id. § 814(e)(1).  Once a section 104(e)(1) withdrawal  order issues, section 104(e)(2) requires another such order for "any  violation of a mandatory health or safety standard which could  significantly and substantially contribute to the cause and effect of a  coal or other mine health or safety hazard."  Id. § 814(e)(2).


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


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


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


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


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


7
 Unlike the administrative law judge, see supra note 6, the  Commission majority undertook to "address the issue squarely  raised by the parties and consider whether the reference to mandatory health or safety standard in sections 104(d) and 104(e) precludes the Secretary from attaching the S&S designation to a  violation of another regulatory requirement."  20 F.M.S.H.R.C. at  801.


Randolph, Circuit Judge, concurring:

14
Because "the doctrine of stare decisis is of fundamental importance to the rule  of law," Welch v. Texas Dep't of Highways & Pub. Transp.,  483 U.S. 468, 494 (1987), our disposition of this case should  have begun with a citation to F.3d and there it should have  ended.


15
Today's majority opinion holds that under § 104(d)(1) of  the Federal Mine Safety and Health Act of 1977, 30 U.S.C.  § 814(d)(1), there may be "a 'significant and substantial'  finding for violation only of a mandatory health or safety  standard."  Maj. op. at 3.  Secretary of Labor v. FMSHRC,  111 F.3d 913, 917 (D.C. Cir. 1997), held the same:


16
As we read [§ 104(d)(1)], the critical words are "suchviolation is of such nature."  A "significantly and sub-stantially" finding may be made only after an authorizedrepresentative has found a "violation" of mine safety andhealth regulations....  By focusing the decisionmaker'sattention on "such violation" and its "nature," Congresshas plainly excluded consideration of surrounding condi-tions that do not violate health and safety standards.


17
This was not dictum.  It was a necessary ground for the  decision, leading us to reject the argument that in making an  "S & S" finding, the Secretary could consider violations of  something other than a mandatory health or safety standard.As such, Secretary of Labor v. FMSHRC should have been  treated, by the Commission and by this court, as conclusive.

