Knox Creek Coal Corporation v. Secretary of Labor

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2313

KNOX CREEK COAL CORPORATION,

Petitioner,

v.

SECRETARY OF LABOR, Mine Safety and Health Administration;
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,

Respondents.

On Petition for Review of a Decision of the Federal Mine Safety
and Health Review Commission. (2010-81-R)

Argued: September 16, 2015 Decided: January 21, 2016

Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Petition for review denied by published opinion. Judge Wynn
wrote the opinion, in which Judge Motz and Senior Judge Davis
joined.

ARGUED: Mark Evan Heath, SPILMAN THOMAS & BATTLE, PLLC,
Charleston, West Virginia, for Petitioner. Philip Edwin Mayor,
UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
Respondent. ON BRIEF: Alexander Macia, SPILMAN THOMAS & BATTLE,
PLLC, Charleston, West Virginia, for Petitioner. M. Patricia
Smith, Solicitor of Labor, Heidi W. Strassler, Associate
Solicitor, W. Christian Schumann, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
Respondent Secretary of Labor.
WYNN, Circuit Judge:

The Federal Mine Safety and Health Review Commission (the

“Commission”) determined that four uncontested violations of the

Federal Mine Safety and Health Act of 1977 (the “Mine Act”) by

Knox Creek Coal Corporation (“Knox Creek”) were “significant and

substantial” under 30 U.S.C. § 814(d)(1). Three violations were

so-called “permissibility” violations, involving inadequately

sealed enclosures of electrical equipment, and one was an

“accumulations” violation, involving the piling of coal dust on

a conveyor belt. Knox Creek argues that, with respect to each

violation type, the Commission either applied an erroneous legal

standard or improperly reweighed the Administrative Law Judge’s

(ALJ’s) evidentiary findings.

Regarding the permissibility violations, we conclude that

the Commission should have applied the legal standard advocated

by the Secretary of Labor (the “Secretary”), but that the

outcome is unaffected when the proper standard is applied.

Regarding the accumulations violation, we conclude that the

Commission applied the correct legal standard, one also endorsed

by the Secretary. And nowhere did the Commission improperly

reweigh evidence. Accordingly, we deny Knox Creek’s petition

for review.

2
 I.

A.

The Mine Act was intended to address the “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.” 30

U.S.C. § 801(c). The Act directs the Secretary to promulgate

mandatory safety and health standards for the nation’s mines.

Id. § 811(a). To ensure compliance with those standards, it

authorizes the Mine Safety and Health Administration (MSHA), as

an “[a]uthorized representative[] of the Secretary,” to “make

frequent inspections and investigations in . . . mines each

year.” Id. § 813(a); see also Speed Mining, Inc. v. Fed. Mine

Safety & Health Review Comm’n, 528 F.3d 310, 312 (4th Cir.

2008).

Mine inspectors issue citations when a mandatory safety and

health standard has been violated. 30 U.S.C. § 814(a). A

violation is designated as “significant and substantial” (or

“S&S”) when it “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.” Id. § 814(d)(1). An S&S

designation increases the civil penalty amount assessed against

the mine operator, becomes part of that operator’s permanent

citation history, and can provide the basis for a “pattern of

3
violations” designation and possible withdrawal orders

prohibiting operations in the affected mines. Id. § 814(d),

(e); 30 C.F.R. § 100.3(a) (enumerating factors for the

determination of a penalty, including whether the operator has a

history of violations).

An operator may contest a citation, as well as its

designation as S&S, before the Commission. 30 U.S.C. § 815(d).

Further, a party may petition a court of appeals to review any

Commission decision by which it has been adversely affected.

Id. § 816(a)(1).

B.

The MSHA conducted a series of inspections of Knox Creek’s

Tiller No. 1 Mine (“Tiller Mine”) in October and November 2009,

issuing thirty-four citations that it deemed S&S. Of these,

only five were reviewed by the Commission and only four are at

issue here: three “permissibility” violations and one

“accumulations” violation.

The three permissibility violations involve a requirement

that a mine’s electrical equipment enclosures be “explosion-

proof,” meaning that those enclosures must be sealed, and that

any gaps between the enclosures and the surrounding air must not

4
exceed .004 inches. 30 C.F.R. §§ 18.31(a)(6), 75.503. 1 As

explained by the Secretary’s expert witness, the standard is

designed to prevent an explosion inside an enclosure from

causing an explosion outside the enclosure. An internal

explosion will not occur without an ignition source such as an

electrical arc or spark, events that do not occur when the

electrical equipment is functioning properly. However, “normal

use in the mining environment” can, for example, involve

vibrations and water seepage, which over time may damage the

electrical connections such that the potential for an ignition

can exist. J.A. 326–27.

Each of the three permissibility citations involved an

electrical mining equipment enclosure with an opening in excess

of .004 inches. In all three cases, the wires were bolted down

and wrapped in insulation and tape at the time of inspection to

decrease the likelihood of sparking. However, evidence

suggested that during the course of normal mining operations,

the bolting could come loose or the insulation could wear down,

thus making arcing and sparking more likely over time. For one

of the machines, evidence showed that some of the insulation was

1The permissible length of any gap depends on the internal
volume of the empty enclosure. Here, there is no dispute that
the relevant enclosures have more than 124 cubic inches of
internal volume, and therefore have a maximum permissible
“clearance” of .004 inches. See 30 C.F.R. § 18.31(a)(6).

5
starting to wear, and for another, evidence showed rust and

corrosion. In all three cases, the equipment was scheduled to

be used in the subsequent shift.

In reviewing these permissibility citations, the ALJ

concluded that the Secretary had failed to satisfy the third

prong of the four-part “Mathies” test, articulated by the

Commission in Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1

(1984), for establishing the S&S nature of a violation. That

third prong requires the Secretary to demonstrate “a reasonable

likelihood that the hazard contributed to [by the violation]

will result in an injury” to a miner. Id. at 3–4.

Although the ALJ found that the Secretary had established a

reasonable likelihood that methane could have entered the

relevant enclosures at an explosive concentration, and that, in

the event of an ignition, an explosion could escape the

enclosures and trigger a larger explosion in the “gassy” mine

atmosphere, 2 the ALJ nevertheless concluded that Mathies’ third

prong was unsatisfied because the Secretary had “not

establish[ed] the likelihood of a triggering arc or spark”

inside the enclosures for each of the violations. S.A. 63; see

also S.A. 64, 65. In so deciding, the ALJ rejected the

2
The Tiller Mine is classified as “gassy” because it
liberates more than 500,000 cubic feet of methane during a
twenty-four-hour period, and is therefore subject to spot
inspections every ten working days. 30 U.S.C. § 813(i).

6
Secretary’s argument that when evaluating whether the “hazard”

was reasonably likely to result in injury under Mathies, the

existence of the hazard—in this case, the escape of hot gas

through an enclosure opening after an ignition caused by

internal arcing or sparking—should be assumed.

After granting the Secretary’s petition for discretionary

review, the Commission unanimously reversed the ALJ’s non-S&S

finding with respect to each of the permissibility citations.

See Sec’y of Labor v. Knox Creek Coal Corp., 36 FMSHRC 1128

(2014). Although the Commission did not adopt the Secretary’s

position that the presence of arcing and sparking within the

enclosure should be assumed, it did find fault with the ALJ’s

application of Mathies’ third prong. The Commission concluded

that the ALJ had failed to consider how conditions change during

normal mining operations, id. at 1132, and had erroneously

required the Secretary to “produce quantitative evidence of the

frequency of malfunctions within these types of enclosures in

order to establish that arcing or sparking was reasonably

likely,” id. at 1133. Examining the evidence in light of this

clarified standard, the Commission ruled that the “evidence

compels the conclusion” that the permissibility citations were

S&S. Id.

7
 C.

In addition to the above permissibility violations, Knox

Creek contests the Secretary’s S&S designation of an

“accumulations” violation under 30 C.F.R. § 75.400, which

requires that “[c]oal dust . . . shall be cleaned up and not be

permitted to accumulate” in certain mine areas. Here, the MSHA

inspector found accumulations of coal dust ranging from four to

twelve inches in depth at numerous locations on and around a

conveyor belt, whose movement at the time of inspection was

creating friction points with the accumulations and the

consequent potential for ignition and fire. When the inspector

observed the accumulations around 7:00 a.m., there were no

visible cleaning efforts underway, but the accumulations had

been recorded in a pre-shift examination book sometime between

4:30 a.m. and 6:30 a.m., and there was evidence that miners had

been assigned to remove them. Also, a Knox Creek employee who

had accompanied the inspector called management at the time of

inspection and was told that a clean-up crew was “on the way.”

J.A. 298. Shortly thereafter, three miners arrived and removed

the accumulations, a process that took approximately forty-five

minutes.

The ALJ determined that this accumulations violation was

not S&S because at the time of inspection miners were on the way

to remove the accumulations, and therefore there was no

8
reasonable likelihood of an ignition and fire. As with the

permissibility violations, the Commission unanimously reversed

the ALJ’s non-S&S determination on the basis that it was error

to assume the likelihood of clean-up in the absence of an “order

directing that [coal] production not resume until the

accumulations were resolved and [with] no evidence that miners

had made any efforts to abate the violation during the preceding

. . . shift.” Knox Creek, 36 FMSHRC at 1140. The Commission

found that the violation was not being “actively abated” and

thus concluded that the evidence required a determination that

the accumulations violation was S&S. Id. at 1141.

D.

Having designated the permissibility violations and

accumulations violation as S&S, the Commission remanded to the

ALJ for a recalculation of penalties regarding all four

violations. Knox Creek, 36 FMSHRC at 1142. Knox Creek appealed

the Commission’s decision to this Court, but we initially

dismissed that appeal because the Commission’s remand for

redetermination of penalties rendered the agency’s decision non-

final. Order, Knox Creek Coal Corp. v. Sec’y of Labor, No. 14-

1637 (4th Cir. Sept. 5, 2014), ECF No. 25. Because the ALJ has

now imposed revised penalties, and the Commission has denied

9
Knox Creek’s petition for discretionary review, the agency’s

decision is now final and ripe for review before this Court. 3

II.

A.

Knox Creek advances two main challenges to the Commission’s

decision, applicable to both the permissibility and

accumulations violations. First, it contends that the

Commission applied an incorrect legal standard for determining

whether a given violation ought to be considered S&S. Second,

it suggests that the Commission reversed factual findings of the

ALJ that were supported by substantial evidence, thereby

exceeding its statutorily prescribed standard of review. See 30

U.S.C. § 823(d)(2)(A)(ii)(I); Donovan ex rel. Chacon v. Phelps

Dodge Corp., 709 F.2d 86, 91 (D.C. Cir. 1983) (construing

multiple provisions of § 823(d)(2)(A) to conclude that “the only

‘question’ relating to the factual findings of an ALJ that the

3
We have jurisdiction over Knox Creek’s appeal pursuant to
Section 106(a)(1) of the Mine Act. 30 U.S.C. § 816(a)(1). As
the Secretary points out, Knox Creek’s petition for review
references the Commission’s order denying discretionary review
of the ALJ’s penalty redeterminations rather than the order it
clearly disputes, i.e., the Commission’s earlier reversal of the
ALJ’s non-S&S determinations. Nevertheless, because the
Secretary “had notice of the appeal and an opportunity fully to
brief the issue,” Hartsell v. Duplex Prods., Inc., 123 F.3d 766,
771 (4th Cir. 1997), Knox Creek’s error does not prejudice the
Secretary and therefore does not preclude our jurisdiction over
the appeal.

10
Commission can consider is whether those findings are supported

by substantial evidence”). 4

We begin by disposing of Knox Creek’s second argument, that

the Commission improperly reweighed facts found by the ALJ. On

the contrary, the Commission’s decision with respect to both the

permissibility and accumulations violations did not question

even one of the ALJ’s factual findings. Rather, the

Commission’s reversal turned on the correction of legal error.

Specifically, in reviewing the finding that the

permissibility citations were not S&S, the Commission found

fault with two main aspects of the ALJ’s analysis. First, it

concluded that the ALJ erred by considering the violative

conditions only “as they existed at the time of the inspection,

[and thereby] taking a ‘snapshot’ approach to the issue of an

arc or spark within the subject enclosures.” Knox Creek, 36

FMSHRC at 1132. It noted clear Commission precedent requiring

the “consider[ation of] the violative conditions as they existed

4
Knox Creek also argues that the Secretary did not meet his
S&S burden because his expert witness did not testify as to the
“safety factor” relevant to the permissibility violations, which
would supposedly specify a “buffer” above the .004-inch opening
allowed by the regulation that would nevertheless be safe.
Petitioner’s Br. at 31-32. However, as the Secretary points
out, the ALJ expressly found that ignited gases inside the
enclosures could have escaped into the mine’s atmosphere, and
Knox Creek did not challenge that finding as being unsupported
by substantial evidence before the Commission. Knox Creek has
therefore waived that argument. 30 U.S.C. § 816(a)(1).

11
both prior to and at the time of the violation and as they would

have existed had normal mining operations continued.” Id. The

ALJ had not applied that standard. Second, the Commission

criticized the ALJ for “requiring the Secretary to prove

essentially a statistical frequency of a spark,” which it

characterized as “an unwarranted standard beyond reasonable

likelihood.” Id. at 1133.

Similarly, regarding the accumulations violation, the

Commission faulted the ALJ for considering abatement measures

that were intended, but not yet begun, as a mitigating factor in

making an S&S determination. Id. at 1140. Significantly, the

Commission did not dispute the ALJ-determined fact that “miners

had been assigned to clean the accumulations,” id., but only the

relevance of that fact to the legal conclusion that the

violation was being “actively” abated and therefore not S&S, id.

at 1141. Each of these errors, the Commission held, was

inconsistent with decades of binding Commission precedent

interpreting the third prong of Mathies, doctrine that it had

developed to construe 30 U.S.C. § 814(d)(1).

The Commission’s reasoning is analogous to that employed in

another of its decisions, reviewed in RAG Cumberland Resources

LP v. Federal Mine Safety & Health Review Commission, 272 F.3d

590 (D.C. Cir. 2001). There, the relevant question was whether,

“to constitute an ‘inspection’ [under 30 U.S.C. § 814(d)(2)],

12
inspectors must leave their vehicles and conduct a detailed

examination for non-obvious hazards,” or whether a mere

“opportunity to observe” such hazards was sufficient. Id. at

594. Without reconsidering any of the factual evidence

suggesting that inspectors had repeatedly traveled through the

relevant area, the Commission reversed on the grounds that an

“inspection” required actual inspection activity, such as might

be reflected in the operator’s inspection log. Id. at 597.

There and here, the Commission’s reversal was legal in

nature because it turned upon the clarification of a standard,

one that was derived from the interpretation of a statutory

provision and applicable prospectively, beyond the facts of the

case at hand. See id. at 596–97. In both instances, the

Commission did precisely what it is charged to do under the Mine

Act: review an ALJ decision to determine if it rested on an

“erroneous” legal conclusion or was “contrary to law or . . .

decisions of the Commission.” 30 U.S.C. § 823(d)(2)(A)(ii)(II),

(III).

B.

Because we read the Commission’s decision as adopting,

rather than reweighing, the ALJ’s factual findings, we review

those findings under a substantial evidence standard. 30 U.S.C.

§ 816(a)(1). And we review the Commission’s legal conclusions

de novo, affording deference when appropriate to the Secretary’s

13
interpretations. See Sec’y of Labor ex rel. Wamsley v. Mut.

Mining, Inc., 80 F.3d 110, 113–15 (4th Cir. 1996). Where a

Commission decision and the Secretary’s relevant interpretation

turn upon the construction of a clear statutory provision—where

Congress has “directly spoken to the precise question[s] at

issue”—then our review requires no deference, and “that is the

end of the matter.” Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 842 (1984); Power Fuels, LLC v.

Fed. Mine Safety & Health Review Comm’n, 777 F.3d 214, 221 (4th

Cir. 2015). It is only where the relevant statutory provision

is unclear that we owe deference to the Secretary’s

interpretation of that provision. See Wamsley, 80 F.3d at 113–

15. As a result, to determine whether any deference is due, we

must examine whether the statute is ambiguous.

Regarding the permissibility violations, the legal issue

before us is whether the Secretary must prove that ignition is

reasonably likely to occur inside an electrical enclosure in

order to render the violations S&S under 30 U.S.C. § 814(d)(1). 5

Again, that provision authorizes the Secretary’s representative

5 The issue might also be identified in the terms
articulated in the Commission’s decision, i.e., as whether the
“reasonable likelihood” standard requires the Secretary to offer
a quantitative level of proof, and whether it ought to be
examined assuming the continuance of “normal mining operations.”
Knox Creek, 36 FMSHRC at 1131–33. Examining the vague language
contained in 30 U.S.C. § 814(d)(1), we think it is obvious that
Congress has not “directly spoken” to this issue either.

14
to designate a violation as S&S where the “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.” 30 U.S.C. § 814(d)(1).

As the Secretary notes, the word “could” suggests no

particular degree of likelihood, but rather a mere possibility

that the violation itself might causally contribute to the

hazard. On the other hand, as Knox Creek suggests, it is hard

to conceptualize how a violation could “significantly and

substantially contribute” to a causal chain of events leading to

a hazard without satisfying some threshold level of probability,

a probability that in turn must depend on the circumstances

surrounding the violation. Thus, there are at least two

plausible interpretations regarding whether the Secretary must

establish the reasonable likelihood of an ignition to render a

permissibility violation S&S. As a result, the statute is

ambiguous. See King v. Burwell, 759 F.3d 358, 363 (4th Cir.

2014) (finding statutory language ambiguous where “subject to

multiple interpretations”), aff’d, 135 S. Ct. 2480 (2015).

Determining the appropriate characterization of the

accumulations violation involves resolving an issue even further

removed from the statute’s text. We are asked to decide whether

evidence that an operator intends to abate a violation—where

that violation is not being actively abated at the time of

15
inspection—can be considered in order to mitigate liability for

what would otherwise be an S&S violation. As far as we can

tell, even Knox Creek does not attempt to argue that the Mine

Act unambiguously provides us with an answer to this question.

In short, we have little trouble concluding that Congress has

not “directly spoken” to the issues before us today. Chevron,

467 U.S. at 842.

Where the meaning of a Mine Act provision is unclear, our

precedent directs that we afford some measure of deference to

the Secretary’s—rather than the Commission’s—interpretations.

Wamsley, 80 F.3d at 113–15. Exactly how much deference is owed

to the Secretary’s litigating positions, however, is not a

question this Court has previously had occasion to resolve. 6 Nor

is there a consensus among our fellow circuit courts that have

addressed the question. Compare N. Fork Coal Corp. v. Fed. Mine

Safety & Health Review Comm’n, 691 F.3d 735, 742 (6th Cir. 2012)

(declining to apply “full Chevron deference” to the Secretary’s

litigating positions regarding the Mine Act), with Sec’y of

Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003)

6
In both Speed Mining, 528 F.3d at 314, and Power Fuels,
777 F.3d at 221, we found that the statutory text was clear,
such that deference to the Secretary was not a necessary
component of our analysis. Finding that the statutory provision
here is ambiguous, however, we may not “simply impose [our] own
construction on the statute.” Chevron, 467 U.S. at 843.
Rather, we must determine what level of deference the
Secretary’s litigating positions are to receive.

16
(affording Chevron deference to the Secretary’s interpretations,

albeit of her own regulations).

Not every agency interpretation of an ambiguous statute is

entitled to full Chevron deference, such that the agency’s view

is upheld so long as it is reasonable. Rather, such strong

deference “is limited to circumstances where (1) Congress has

given the agency authority to make rules carrying the force of

law and (2) the agency’s interpretation is rendered in the

exercise of that authority.” A.T. Massey Coal Co. v. Holland,

472 F.3d 148, 166 (4th Cir. 2006) (citing United States v. Mead

Corp., 533 U.S. 218, 226–27 (2001)).

The Mine Act explicitly grants the Secretary of Labor the

“authority to make rules carrying the force of law,” id.;

indeed, he is directed to do so, in accordance with the notice-

and-comment rulemaking procedures of the Administrative

Procedure Act (APA). 30 U.S.C. § 811(a) (“The Secretary shall

by rule in accordance with procedures set forth in this section

and in accordance with [APA notice-and-comment rulemaking

procedures] develop, promulgate, and revise . . . improved

mandatory health or safety standards for the protection of life

and prevention of injuries in coal or other mines.”); see also 5

U.S.C. § 553 (prescribing the rules for notice-and-comment

rulemaking under the APA). Without a doubt, then, the first

element articulated in Mead is satisfied.

17
 In this case, however, whether Mead’s second requirement is

satisfied presents a more challenging issue. The agency

interpretations we are asked to consider here are not the

product of the Mine Act’s express delegation of lawmaking

authority. Rather, they are positions taken by the Secretary in

the course of litigation, first before the Commission and now

before this Court. Consequently, we must determine whether the

Secretary’s relevant positions are “rendered in the exercise” of

the necessary “authority.” A.T. Massey, 472 F.3d at 166.

When an agency’s interpretation derives from notice-and-

comment rulemaking, it will almost inevitably receive Chevron

deference, since in that case, the interpretation results from

“a relatively formal administrative procedure tending to foster

the fairness and deliberation that should underlie a

pronouncement” of law. Mead, 533 U.S. at 230. However, where

an agency has interpreted a statute without aid or constraint

from APA rulemaking procedures, we must look for “other

circumstances” suggesting that Congress intended for an agency’s

reasonable interpretation to bind reviewing courts. Id. at 231.

In the past, we have generally found such circumstances to exist

only where there are “indicia of a legislative-type

determination—i.e. those of weighing conflicting policies,

considering adversarial viewpoints, [and] promulgating forward-

18
looking rules of general applicability.” A.T. Massey, 472 F.3d

at 166.

Those “legislative-type” traits do not accurately

characterize the interpretive positions the Secretary adopts in

litigation. No doubt, when the Secretary conducts inspections,

issues citations, and proposes civil penalties for violations,

he does so pursuant to an express statutory delegation of

authority, see 30 U.S.C. §§ 813, 814(a), 815(a), 820(a), and we

do not question that in carrying out that enforcement role, the

Secretary’s decisions are informed by considerations of policy

and internal consistency. Indeed, we have previously recognized

that the Secretary is the authoritative policymaking entity

under the Mine Act’s scheme. Wamsley, 80 F.3d at 113–14.

However, when the Secretary defends the issuance of a citation

before a reviewing court, he does so more as prosecutor and less

as legislator.

Two fundamental aspects of the Secretary’s litigating

positions distinguish them from the “legislative-type

determinations” to which we afford Chevron deference. First,

and most importantly, the Secretary’s litigating positions are

not binding or precedential, a factor which has been highlighted

as significant, and at times dispositive, by this Court and

others in declining to apply Chevron deference. See Mead, 533

U.S. at 233 (noting as significant that a tariff classification

19
determination’s “binding character as a ruling stops short of

third parties”); Martinez v. Holder, 740 F.3d 902, 909–10 (4th

Cir. 2014) (“When issuing a single-member, nonprecedential

opinion, the [Board of Immigration Appeals] is not exercising

its authority to make a rule carrying the force of law, and thus

the opinion is not entitled to Chevron deference.”); Precon Dev.

Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278, 290 n.10 (4th

Cir. 2011) (declining to apply Chevron deference to an

interpretation offered “in a non-binding guidance document”).

Second, unlike the rules it promulgates through the APA’s

notice-and-comment rulemaking procedures, the Secretary’s

litigating positions do not arise out of a formal procedure

intended to foster the “fairness and deliberation that should

underlie a pronouncement [of law].” Mead, 533 U.S. at 230. The

Secretary makes enforcement choices and adopts litigating

positions through an internal and discretionary process closed

to public input. See Speed Mining, 528 F.3d at 317

(characterizing the Secretary’s citation decisions under the

Mine Act as “discretionary” and “therefore unreviewable”);

Didrickson v. U.S. Dep’t of Interior, 982 F.2d 1332, 1339 (9th

Cir. 1992) (“[L]itigation decisions are generally committed to

agency discretion by law . . . .”).

20
 For these reasons, we conclude that the Secretary’s

litigating positions are not entitled to Chevron deference. 7

That being said, deference is still due. Keeping in mind that

“developing rules and enforcing them endow the Secretary

with . . . ‘historical familiarity and policymaking expertise,’”

Wamsley, 80 F.3d at 114 (quoting Martin, 499 U.S. at 153), the

Secretary’s position is owed deference to the extent it has the

“power to persuade,” Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944). In evaluating the Secretary’s interpretation, we will

weigh “the thoroughness evident in its consideration, the

validity of its reasoning, its consistency with earlier and

later pronouncements, and all [other relevant] factors.” Id.

7 This determination is consistent with Martin v.
Occupational Safety & Health Review Commission, 499 U.S. 144,
152–53 (1991), which afforded deference to the Secretary’s
litigating positions interpreting the Occupational Safety and
Health Act (“OSH Act”) rather than to the Occupational Safety
and Health Review Commission’s adjudicative interpretations of
that Act. Martin indicated that we should defer to the
Secretary, but it did not specify the degree of that deference—
indeed, it did not cite Chevron. Id. Additionally, in Martin,
the Secretary’s interpretations of OSH Act regulations were at
issue, and an agency’s interpretations of its own regulations
have consistently been afforded greater deference than its
direct interpretations of the governing statute. See Auer v.
Robbins, 519 U.S. 452, 461 (1997). In Wamsley, we applied
Martin’s guidance in the context of the Mine Act, but again
nowhere specified the level of deference owed to the Secretary’s
interpretations. 80 F.3d at 114–15. Moreover, both cases were
decided prior to Mead, which outlined the contours of Chevron
deference and guides our reasoning today.

21
 C.

The disputed standards relevant to both the permissibility

and accumulations violations each implicate the Commission-

developed Mathies test. First articulated more than three

decades ago, the test has since been consistently applied by the

Commission and ALJs to determine whether a violation is S&S, and

has been adopted by federal appellate courts. See, e.g.,

Peabody Midwest Mining, LLC v. Fed. Mine Safety & Health Review

Comm’n, 762 F.3d 611, 616 (7th Cir. 2014); Buck Creek Coal, Inc.

v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir.

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103

(5th Cir. 1988). It is therefore unsurprising that in light of

the statute’s ambiguity, both parties recognize the Mathies test

as authoritative in resolving the issues disputed here.

Under Mathies, to establish that a violation is S&S, the

Secretary must establish “(1) the underlying violation of a

mandatory safety standard; (2) a discrete safety hazard—that is,

a measure of danger to safety—contributed to by the violation;

(3) a reasonable likelihood that the hazard contributed to will

result in an injury; and (4) a reasonable likelihood that the

injury in question will be of a reasonably serious nature.”

Mathies, 6 FMSHRC at 3–4 (footnote omitted). The parties’

dispute regarding both the permissibility and accumulations

22
violations implicates the proper interpretation of Mathies’

third prong.

Regarding the permissibility violations, the Secretary

argues that “the third prong of Mathies focuses on the

likelihood that the hazard to which the violation contributes

will cause injury, not on the likelihood of the hazard

occurring.” Respondents’ Br. at 27 (emphasis added).

Consequently, when analyzing this third prong, the existence of

the relevant hazard—in this case, the ignition and escape of hot

gas through an impermissibly large enclosure opening—should be

assumed.

By contrast, Knox Creek argues that the Secretary has a

burden under Mathies’ third prong “to prove it was reasonably

likely that the violations would result in a serious injury.”

Petitioner’s Br. at 28 (emphasis added). In Knox Creek’s view,

in making this probability determination, all facts surrounding

the cited violation are relevant, including the likelihood of

other causally contributing events—such as, in this case, the

likelihood of arcing and sparking. In short, the parties’

dispute is whether evidence of the likelihood of the hazard is a

necessary component of Mathies’ third prong.

Without affording the Secretary’s interpretation full

Chevron deference, we find the Secretary’s interpretation

nevertheless persuasive, being “consisten[t] with earlier . . .

23
pronouncements” and “thorough[]” in its reasoning. Skidmore,

323 U.S. at 140. The Secretary’s position that the relevant

hazard should be assumed when analyzing Mathies’ third prong is

consistent with Commission precedent. Indeed, as if to

anticipate the very argument Knox Creek makes before us here,

the Commission has previously distinguished the terms “hazard”

and “violation,” and has clarified that the relevant hazard may

be assumed when analyzing Mathies’ third prong.

In Secretary of Labor v. Musser Engineering, Inc., 32

FMSHRC 1257, 1280 (2010), the relevant violation was “the

failure to have an accurate map,” and the relevant hazard was

“the danger of breakthrough to an adjacent mine and resulting

inundation.” The mine operator argued then, as Knox Creek

argues now, that under Mathies’ third prong, there was

insufficient evidence that the violation was reasonably likely

to cause injury. Id. at 1280–81. “However,” the Commission

clarified, “that is not the test. The test under the third

element is whether there is a reasonable likelihood that the

hazard contributed to by the violation . . . will cause injury.

The Secretary need not prove a reasonable likelihood that the

violation itself will cause injury, as [the operator] argues.”

Id. at 1281 (emphasis added). In finding that the Secretary had

indeed satisfied Mathies’ third prong, the Commission went on to

assume the existence of the relevant hazard, i.e., breakthrough

24
and inundation, and to consider only “evidence regarding the

likelihood of injury as a result of the hazard,” such as the

perils of drowning, hypothermia, and suffocation. Id.

Every federal appellate court to have applied Mathies has

also assumed the existence of the relevant hazard when analyzing

the test’s third prong. See Peabody Midwest, 762 F.3d at 616

(“[T]he question [presented by Mathies’ third prong] is not

whether it is likely that the hazard . . . would have occurred;

instead, the ALJ had to determine only whether, if the hazard

occurred (regardless of the likelihood), it was reasonably

likely that a reasonably serious injury would result.”); Buck

Creek, 52 F.3d at 135 (accepting as sufficient for satisfying

Mathies’ third prong the ALJ’s finding “that in the event of a

fire [i.e., the relevant hazard], smoke and gas inhalation by

miners in the area would cause a reasonably serious injury

requiring medical attention” (emphasis added)); Austin Power,

861 F.2d at 103–04 (finding Mathies’ third prong satisfied where

a workplace fall, i.e., the relevant hazard, was from a height

of thirty-six feet and so “would almost certainly result in

serious injury,” without requiring evidence that a fall itself

was likely); cf. Cumberland Coal Res., LP v. Fed. Mine Safety &

Health Review Comm’n, 717 F.3d 1020, 1025–27 (D.C. Cir. 2013)

(accepting the Secretary’s interpretation that the Mathies test

allows the decisionmaker to assume the existence of an emergency

25
when evaluating whether the violation of an emergency safety

standard is S&S).

Given the language and structure of the Mathies test taken

as a whole, this approach makes sense. In its first key opinion

interpreting the statute’s S&S provision, 30 U.S.C. § 814(d)(1),

the Commission identified two sensible considerations—

“likelihood and gravity”—that rendered a violation S&S. Sec’y

of Labor v. Nat’l Gypsum Co., 3 FMSHRC 822, 828 (1981). In

short, the Commission reasoned that a violation should be

considered S&S when it is reasonably likely to result in serious

harm. See id. The later-developed Mathies test, at its core,

also reflects a dual concern for both likelihood and gravity.

In our view, the second prong of the test, which requires the

showing of a “discrete safety hazard—that is, a measure of

danger to safety—contributed to by the violation,” Mathies, 6

FMSHRC at 3, primarily accounts for the Commission’s concern

with the likelihood that a given violation may cause harm. This

follows because, for a violation to contribute to a discrete

safety hazard, it must be at least somewhat likely to result in

harm.

By contrast, we think that Mathies’ third and fourth

prongs, which the Commission expected would “often be combined

in a single showing,” Mathies, 6 FMSHRC at 4, are primarily

concerned with gravity—the seriousness of the expected harm. To

26
the extent that the third and fourth prongs are concerned with

likelihood at all, they are concerned—by their very terms—with

the likelihood that the relevant hazard will result in serious

injury. Id. at 3–4. Requiring a showing at prong three that

the violation itself is likely to result in harm would make

prong two superfluous.

Assuming the existence of the relevant hazard at prong

three is also justified by policy considerations. Under Knox

Creek’s interpretation of Mathies, compliance with some

mandatory safety standards could preclude an S&S finding for the

violation of an entirely separate mandatory safety standard.

For instance, in this case, Knox Creek suggests that the

insulation surrounding its electrical wiring should be

considered as relevant evidence cutting against an S&S finding

with respect to each of the permissibility violations. But as

the Secretary points out, “[i]f mine operators could avoid S&S

liability—which is the primary sanction they fear under the Mine

Act—by complying with redundant safety standards, operators

could pick and choose the standards with which they wished to

comply.” Respondents’ Br. at 37. Such a policy would make such

standards “mandatory” in name only. It is therefore

unsurprising that other appellate courts have concluded that

“[b]ecause redundant safety measures have nothing to do with the

violation, they are irrelevant to the [S&S] inquiry.”

27
Cumberland Coal, 717 F.3d at 1029; see also Buck Creek, 52 F.3d

at 136.

Finally, the purpose and legislative history of the Mine

Act support the Secretary’s interpretation. The Federal Coal

Mine Health and Safety Act of 1969 (“Coal Act”), which was

incorporated in full into the Mine Act, declared that the mining

industry’s “first priority and concern . . . must be the health

and safety of its most precious resource—the miner.” Pub. L.

No. 91-173, § 2(a), 83 Stat. 742, 742–43 (codified at 30 U.S.C.

§ 801(a)). More specifically, the Coal Act tightened

permissibility requirements in light of a spate of methane

explosions, some of which may have been triggered by relatively

minor ignition sources. See S. Rep. No. 91-411, at 26–31

(1969). Additionally, the legislative history of the Mine Act

suggests that Congress did not intend for the S&S determination

to be a particularly burdensome threshold for the Secretary to

meet. See Consolidation Coal Co. v. Fed. Mine Safety & Health

Review Comm’n, 824 F.2d 1071, 1085 (D.C. Cir. 1987) (concluding

that the legislative history of the Mine Act “suggests that

Congress intended all except ‘technical violations’ of mandatory

standards to be considered significant and substantial”).

In short, we find that the Secretary’s interpretation is

persuasive and consistent with both Commission precedent and

28
legislative intent. None of Knox Creek’s arguments persuades us

otherwise.

Knox Creek attempts, for example, to paint a doomsday

picture, arguing that the Secretary’s interpretation will result

in designating every permissibility violation S&S, or that it

will result in effectively changing Mathies’ “reasonable

likelihood” of occurrence to a simple “could occur.”

Petitioner’s Reply Br. at 10. These arguments are ill-founded,

for two reasons.

First, even under the Secretary’s interpretation, the third

Mathies prong still requires evidence that the hazard is

reasonably likely to result in an injury-producing event, which

in this case means evidence that the escape of hot gas from an

enclosure will trigger an explosion in the mine atmosphere.

That evidence will not be available where the mine’s atmosphere

does not contain explosive concentrations of methane.

Second, as we discussed above, the second prong of Mathies

requires proof that the violation in question contributes to a

“discrete safety hazard,” which implicitly requires a showing

that the violation is at least somewhat likely to result in

harm. See Sec’y of Labor v. Black Beauty Coal Co., 34 FMSHRC

1733, 1741 n.12 (2012) (“[I]f the roadway here had lacked berms

for only a short distance [thereby making the hazard of a

vehicle falling off the edge less likely], or if the violation

29
had been otherwise insignificant, the trier-of-fact could have

found that the violation did not contribute to a discrete safety

hazard, and hence that the Secretary had failed in her proof

under the second element of Mathies.”), aff’d sub nom. Peabody

Midwest Mining, LLC v. Fed. Mine Safety & Health Review Comm’n,

762 F.3d 611 (7th Cir. 2014); Sec’y of Labor v. Cumberland Coal

Res., LP, 33 FMSHRC 2357, 2368 (2011) (similarly considering

evidence that the violation, under the particular circumstances,

was likely to contribute to the relevant hazard under Mathies’

second prong), aff’d sub nom. Cumberland Coal Res., LP v. Fed.

Mine Safety & Health Review Comm’n, 717 F.3d 1020 (D.C. Cir.

2013); Sec’y of Labor v. E. Associated Coal Corp., 13 FMSHRC

178, 183 (1991) (same); Utah Power & Light Co. v. Sec’y of

Labor, 12 FMSHRC 965, 970 (1990) (same).

Nonetheless, despite the numerous Commission decisions

considered above, Knox Creek argues that the Secretary’s

approach is inconsistent with Commission precedent, focusing on

two cases. In the first, Secretary of Labor v. Texasgulf Inc.,

10 FMSHRC 498, 501 (1988), the Commission required that a

permissibility violation’s S&S determination “be based on the

particular facts surrounding the violation,” which Knox Creek

argues is inconsistent with the Secretary’s method of assuming

the hazard at prong three. As the above discussion should make

clear, however, the Secretary’s approach still allows plenty of

30
room for a fact-intensive S&S analysis, both under prong two,

where the Secretary must establish that the violation

contributes to a discrete safety hazard, and within prongs three

and four, where evidence is still necessary to establish that

the hazard is reasonably likely to result in a serious injury.

Moreover, the Commission expressly distinguished this case

from Texasgulf on the grounds that, whereas the Tiller Mine was

classified as “gassy,” with high concentrations of methane in

its atmosphere, “[t]he mine in Texasgulf contained only

miniscule amounts of methane and had never had a methane

ignition or explosion.” Knox Creek, 36 FMSHRC at 1133 n.11.

When the Commission in Texasgulf required the consideration of a

“confluence of factors” in making an S&S determination, it was

specifically concerned with whether there was “a sufficient

amount of methane in the atmosphere surrounding the

impermissible gaps and ignition sources.” Texasgulf, 10 FMSHRC

at 501. Texasgulf is silent as to whether the Secretary must

present evidence that the hazard itself is reasonably likely at

prong three.

More persuasively, Knox Creek cites Secretary of Labor v.

Zeigler Coal Co., 15 FMSHRC 949, 953 (1993), which involved a

noncompliant power connection whose related hazard was “an

ignition that could result in an explosion.” The Commission

specified that in satisfying Mathies’ third prong, a “reasonable

31
likelihood of an ignition is [a] necessary precondition to the

reasonable likelihood of an injury.” Id. Zeigler Coal does

appear to support Knox Creek’s position that evidence of the

likelihood of the hazard is relevant at prong three. However,

that position is flatly contradicted by more recent Commission

precedent, Musser, 32 FMSHRC at 1281, by the unanimous voice of

federal appellate courts, see Peabody Midwest, 762 F.3d at 616;

Cumberland Coal, 717 F.3d at 1025–27; Buck Creek, 52 F.3d at

135; Austin Power, 861 F.2d at 103–04, and by the various

considerations outlined above. Accordingly, the scales still

tip decidedly in the Secretary’s favor.

In sum, we accept the Secretary’s interpretation that the

relevant hazard should be assumed when analyzing Mathies’ third

prong. This interpretation has the necessary “power to

persuade”: it is not only consistent with Commission and

appellate court precedent applying Mathies, but also well

supported by the Mine Act’s history and purpose.

Applying this legal standard to the three permissibility

citations, we have little trouble concluding that the

Commission’s S&S determinations were supported by substantial

evidence. Neither party disputes the Commission’s

characterization of the relevant hazard as the escape of ignited

gas into the mine atmosphere through the impermissibly sealed

enclosure. The dispositive question, then, is whether there was

32
substantial evidence to support the Commission’s conclusion that

this hazard was reasonably likely to cause injury. Quite

clearly, there was.

Both parties stipulated before the ALJ that the Tiller Mine

is a “gassy” mine, “liberat[ing] more than 500,000 cubic feet of

methane or other explosive gases during a 24-hour period, and

thus . . . subject to . . . 10-day spot inspections.” J.A. 316.

Consequently, the ALJ found that, with respect to the facts

surrounding each violation, an accumulation of methane at

explosive concentrations was reasonably likely, and that a

resulting explosion was reasonably likely to cause serious

injuries to miners. Knox Creek did not even argue before the

Commission that these findings were unsupported by substantial

evidence. For each of the permissibility violations, we thus

find Mathies’ third prong satisfied, and the Commission’s S&S

determinations proper.

D.

The parties’ dispute with respect to the accumulations

violation also relates to Mathies’ third prong. The Secretary

argues that “a mine operator’s intent to abate [a violation

should] not mitigate an otherwise S&S violation,” i.e., by

rendering a resultant injury not reasonably likely.

Respondents’ Br. at 52. According to the Secretary, although

S&S liability may be mitigated where a violation is being

33
actively abated, that can only be the case where the mine

operator “has ordered the relevant equipment or areas to be shut

down and has already begun active repairs.” Id. Knox Creek

counters that the Secretary’s proposed standard is inconsistent

with Texasgulf’s requirement that ALJs examine a “confluence of

factors” surrounding a violation in order to resolve Mathies’

third prong. Texasgulf, 10 FMSHRC at 501.

Once more, however, we find the Secretary’s interpretation

persuasive. For over thirty years, the Commission has held that

an S&S determination ought to be “made at the time the citation

is issued (without any assumptions as to abatement).” Sec’y of

Labor v. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (1984)

(emphasis added); see also Sec’y of Labor v. McCoy Elkhorn Coal

Corp., 36 FMSHRC 1987, 1991 (2014) (rejecting the argument that

an S&S finding was erroneous “because [the mine operator] was in

the process of cleaning the accumulations when the inspector

arrived”); Sec’y of Labor v. Gatliff Coal Co., 14 FMSHRC 1982,

1986 (1992) (finding that the ALJ erred in “inferring that the

violative condition would cease” in the course of normal mining

operations). It is true that the Commission has applied a

“confluence of factors” approach to S&S determinations.

However, this approach does not prevent the Commission from

providing further clarification as to what factors ought to be

evaluated, and how. That is all the Commission did here.

34
 The Secretary’s interpretation makes sense. First, planned

but not-yet-begun abatement efforts do not actually reduce the

risk of harm to miners posed by the relevant violation, as that

risk is properly evaluated at the time of citation. That is

illustrated by the facts here, where miners were scheduled to

begin mining within thirty minutes of when the citation was

issued, but the accumulations were not actually abated until

nearly an hour later.

Second, if evidence that abatement efforts are merely

intended could mitigate an S&S determination, mine operators

might have incentives to “plan” more abatement measures than

they have the actual capacity to perform. Even assuming good-

faith intentions to abate on the part of mine operators,

however, plans are inherently less reliable than deeds, and it

is therefore reasonable for the Secretary and Commission to

discount evidence of the former. See Sec’y of Labor v. Eagle

Nest, Inc., 14 FMSHRC 1119, 1123 (1992) (rejecting the argument

that a mine operator may assume that miners will behave

cautiously in order to mitigate an S&S finding); Sec’y of Labor

v. U.S. Steel Mining Co., 6 FMSHRC 1834, 1838 n.4 (1984) (noting

the “inherent vagaries of human behavior”).

Finally, the Mine Act’s history and purpose support the

Secretary’s interpretation. As we have previously mentioned,

the statute’s chief concern is with the health and safety of the

35
miner, 30 U.S.C. § 801(a), and it is for this reason that mine

operators face strict liability for mandatory safety standard

violations under the Act. See Freeman United Coal Mining Co. v.

Fed. Mine Safety & Health Review Comm’n, 108 F.3d 358, 360 (D.C.

Cir. 1997) (citing 30 U.S.C. § 820(a)). Further, the

accumulations “standard was directed at preventing accumulations

in the first instance, not at cleaning up the materials within a

reasonable period of time after they have accumulated.” Sec’y

of Labor v. Old Ben Coal Co., 1 FMSHRC 1954, 1957 (1979)

(discussing H. Rep. 91-761 (1969) and H. Rep. 91-563 (1969)).

Discounting evidence of intended but not-yet-begun abatement

efforts when making S&S determinations is consistent with these

stringent enforcement standards, which have as their lodestar

miner health and safety.

We therefore accept the Secretary’s argument and the

Commission’s ruling that evidence of intended but not-yet-begun

abatement efforts ought not be considered when making an S&S

determination. Consequently, since no actual abatement was

underway at the time of citation, it is clear that the

Commission’s S&S determination with respect to the accumulations

violation was valid.

III.

In sum, applying the correct legal standard to the facts

surrounding the four violations at issue here compels the

36
conclusion that the Commission reached—that is, that those

violations were significant and substantial under 30 U.S.C.

§ 814(d)(1). Accordingly, we deny the petition for review.

PETITION FOR REVIEW DENIED

37