PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1321
CONSOL BUCHANAN MINING COMPANY, LLC,
Petitioner,
v.
SECRETARY OF LABOR; FEDERAL MINE SAFETY & HEALTH REVIEW
COMMISSION; FEDERAL MINE SAFETY & HEALTH ADMINISTRATION,
Respondents.
On Petition for Review of an Order of the Federal Mine Safety
and Health Review Commission. (VA 2013-190)
Argued: September 22, 2016 Decided: November 10, 2016
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Petition for review denied by published opinion. Judge Wynn
wrote the opinion, in which Judge Wilkinson and Judge Duncan
joined.
ARGUED: Billy Ray Shelton, JONES, WALTERS, TURNER & SHELTON
PLLC, Lexington, Kentucky, for Petitioner. Cheryl C. Blair-
Kijewski, UNITED STATES DEPARTMENT OF LABOR, Arlington,
Virginia, for Respondents. ON BRIEF: Randall C. Eads, EADS &
EADS, Abingdon, Virginia, for Petitioner. M. Patricia Smith,
Solicitor of Labor, Office of the Solicitor, Washington, D.C.,
Heidi W. Strassler, Associate Solicitor, Office of Civil Penalty
Compliance, MSHA, W. Christian Schumann, Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
Respondent, Secretary of Labor.
2
WYNN, Circuit Judge:
Following a fatal accident in a coal mine operated by
Consol Buchanan Mining Co. (“Consol”), the Federal Mine Safety
and Health Review Commission (the “Commission”) determined that
the accident resulted from Consol’s “unwarrantable failure” to
ensure that certain equipment in the mine was maintained in a
safe, working condition. Seeking review by this Court, Consol
argues that it lacked notice that hazardous conditions in the
mine violated applicable mine safety regulations. Further,
Consol asserts that the agency erred in concluding that the
company demonstrated aggravated negligence in failing to rectify
evident safety concerns. We disagree and therefore deny
Consol’s petition for review.
I.
A.
Consol operates a large underground coal mine in Buchanan,
Virginia. On January 11, 2012, acting Shift Foreman Lynn
Semones directed Section Foreman Gregory Addington and miners
David Green and Joseph Saunders to move a shuttle car from one
part of the mine to another. In general, foremen were not
assigned to assist with such a move. Recognizing Addington’s
lack of experience moving equipment, however, Semones assigned
Addington to oversee this particular move to “get him some
3
experience” with the process. J.A. 656. Semones directed
Addington to “[f]ollow [Green and Saunders], learn from them,
[and] help them [move the car] through tight places.” Id.
At the time of the accident, a six-inch water supply line
ran along the mine floor immediately adjacent to the trackway on
which miners moved equipment through the mine. Though
originally situated above the mine floor, this waterline was
effectively buried by the accumulation of years of dust and
debris from the mine. As the mine’s main water supply, the line
supplied water for various uses throughout the mine, including
firefighting and the suppression of coal dust generated through
the mining process.
To enable these distinct uses, multi-outlet water manifolds
were installed at regular intervals along the line. Connected
to each manifold were valves, each of which could be adjusted to
control the flow of water for a designated purpose. Separately,
to stem the flow of water entirely, the main six-inch waterline
included larger shutoff valves. These valves were arranged in a
“ladder system,” such that three separate valves had to be
closed to fully stop the flow of water to a particular section
of the line. J.A. 40.
Due to their proximity to the trackway, machinery regularly
struck the manifolds and valves extending from the main
waterline as the machinery moved through the mine. Though aware
4
that fire valves were occasionally damaged by moving equipment,
Semones did not instruct Addington on how to respond to such an
incident, instead relying on the miners’ prior experience to
ensure that the move was accomplished safely. Nonetheless,
aware of the possibility that the passing shuttle car may damage
a protruding valve, Addington looked unsuccessfully for
replacement valves before joining the move crew.
B.
Soon after the crew began to move the shuttle car, the car
struck a fire valve connected to a manifold extending from the
main waterline, breaking the valve in two and leaving a fountain
of water shooting from the manifold. While Addington dried
himself, Green and Saunders set about to stop the flow of water
and repair the broken valve. To do so, Green and Saunders,
along with a third miner, first sought to close the shutoff
valves on the main six-inch waterline. Because Consol had
removed the “leverage bars” provided by the valve manufacturer
to assist in opening and closing the valves, the miners
attempted to close the valve using a nearby steel bar.
As the miners worked to close the shutoff valves, Addington
contacted Semones to report the accident. Semones later
recounted that he directed Addington to continue moving the
shuttle car to allow a second crew to repair the damaged valve.
5
Addington testified, however, that he did not hear Semones’s
instruction. At any rate, rather than following this direction,
Addington returned to the scene of the accident and found Green
and Saunders working to reassemble the broken fire valve.
Assuming the miners knew how to repair the valve, Addington
watched as Green and Saunders worked to reattach the valve to
the manifold.
Unfortunately, due to the accretion of debris on the main
waterline, the miners were unable to fully close one of the
shutoff valves. With the valve partially open, water continued
to flow through the manifold as the miners attempted to reattach
the broken fire valve. 1 At the same time, the dislocation of the
fire valve from the manifold damaged the valve’s threading such
that it could no longer bear the level of water pressure it was
designed to withstand. Although the miners visually inspected
the threading before attempting to reattach the valve,
investigators later determined that the damage to the threading
was difficult to detect without magnification. Saunders was
unable, however, to reattach the valve by hand and instead used
a pipe wrench to attempt to tighten the valve into place.
Ultimately, the damage to the threading, coupled with the
building water pressure, caused the valve to fail. As a result,
1Addington later testified that he believed that water
flowing through the manifold was simply a reservoir in the
waterline that remained after the shutoff valves were closed.
6
the valve was suddenly ejected from the manifold, striking
Saunders and fatally injuring him. A Mine Safety & Health
Administration (“MSHA”) investigator who arrived at the scene
soon thereafter observed a fountain of water flowing from the
manifold and concluded that one of the shutoff valves was not
fully closed. Upon further inspection, the investigator noted
that the shutoff valve remained visually and audibly (that is,
making a hissing sound) open. A more extensive MSHA inquiry
followed, with investigators concluding that the accident
resulted from the failure to ensure that the shutoff valve was
fully closed before attempting to reattach the inoperable fire
valve.
C.
Following its investigation, MSHA petitioned the Commission
to assess civil penalties against Consol for violations of two
mine safety regulations: (1) 30 C.F.R. § 75.1725(a) (the “Mining
Equipment Rule”), which requires mine operators to remove unsafe
mining machinery or equipment from service, for reusing the
damaged fire valve after it was dislocated from the water
manifold; and (2) 30 C.F.R. § 75.1100-3 (the “Fire Equipment
Rule”), which requires all firefighting equipment to be
maintained in a usable and operative condition, for failing to
ensure leverage bars were available to be used to close the
7
shutoff valves and otherwise failing to ensure that the valves
could be fully closed.
After conducting an evidentiary hearing, at which the
parties presented testimony from MSHA inspectors and the miners
involved in the accident, an MSHA Administrative Law Judge
(“ALJ”) upheld the investigators’ findings and concluded that
each of the violations stemmed from Consol’s “unwarrantable
failure” to comply with the identified MSHA regulations.
Pursuant to Section 104(d)(1) of the Mine Act, 30 U.S.C. §
814(d)(1), the ALJ imposed a civil penalty of $70,000 for each
violation. The Commission subsequently denied Consol’s petition
for discretionary review, and the ALJ’s decision thus became a
final Commission order on March 4, 2015.
Consol now petitions this Court for review and challenges
the Commission’s final order on three grounds. First, the
company contends that it lacked fair notice that using an
inoperable shutoff valve violated the Fire Equipment Rule
because MSHA had not previously cited Consol for failing to
ensure that shutoff valves on the mine’s central waterline could
be closed. Second, asserting that Addington was not responsible
for supervising Green and Saunders in their efforts to repair
the damaged fire valve, Consol challenges the ALJ’s conclusion
that Addington served as Consol’s agent, such that any
negligence attributable to him may be imputed to Consol. Last,
8
Consol contests the ALJ’s ultimate finding that Consol
demonstrated heightened negligence in failing to comply with
applicable MSHA regulations.
II.
Because the Commission adopted the ALJ’s factual findings,
we review those findings under a substantial evidence standard.
Knox Creek Coal Corp. v. Sec’y of Labor, Mine Safety & Health
Admin., 811 F.3d 148, 157 (4th Cir. 2016); see also 30 U.S.C. §
816(a)(1) (providing that the Commission’s findings are
“conclusive” if they are “supported by substantial evidence on
the record considered as a whole”). Substantial evidence means
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Almy v. Sebelius, 679 F.3d
297, 301 (4th Cir. 2012) (internal quotations omitted) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We
review the Commission’s legal conclusions de novo, affording
deference when appropriate to the Secretary's interpretations of
ambiguous statutory language. Knox Creek Coal, 811 F.3d at 157
(citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc., 80
F.3d 110, 113–15 (4th Cir. 1996)).
9
A.
Congress enacted the Mine Act to address the “urgent need
to provide more effective means and measures for improving the
working conditions and practices” in the nation’s mines. 30
U.S.C. § 801(c). In so doing, Congress made plain that the
“first priority and concern of all in the coal . . . mining
industry must be the health and safety of its most precious
resource—the miner.” Id. § 801(a). To that end, Congress
explained that mine operators “have the primary responsibility
to prevent the existence of” dangerous conditions in their
mines. Id. § 801(e). The Act also authorizes the Secretary of
Labor to adopt “mandatory health or safety standards for the
protection of life and prevention of injuries in coal or other
mines.” Id. § 811(a).
Promulgated pursuant to this rulemaking authority, the Fire
Equipment Rule requires mine operators to ensure that “[a]ll
firefighting equipment . . . be maintained in a usable and
operative condition.” 30 C.F.R. § 75.1100-3. MSHA regulations
explicitly include “waterlines” among designated “firefighting
equipment” that must be installed in all covered mines. See id.
§ 75.1100-1(a) (requiring lines capable of delivering 50 gallons
of water a minute at a nozzle pressure of 50 pounds per square
inch). Similarly, the Mining Equipment Rule provides that all
“[m]obile and stationary machinery and equipment shall be
10
maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service
immediately.” Id. § 75.1725(a).
The Mine Act further authorizes the Secretary, acting
through MSHA, to conduct inspections to assess compliance with
mine safety regulations. 30 U.S.C. § 813(a). Beyond these
regular inspections, the Act mandates quarterly inspections of
each underground coal mine “in its entirety.” Id. MSHA
inspectors are responsible for issuing citations for any
identified violations and otherwise assisting mine operators in
complying with applicable regulations. Id. §§ 813(a), 814(a).
Where, as here, investigators determine that a violation is
either “of such a nature as could significantly and
substantially contribute to the cause and effect of a . . . mine
safety or health hazard” or otherwise “caused by an
unwarrantable failure of [the] operator to comply with [MSHA]
mandatory health or safety standards,” these findings must be
included in any resulting citation and may lead to enhanced
penalties and other potential sanctions. See id. §§ 814(d)(1),
(d)(2), (e).
B.
Consol first contends that it lacked adequate notice that
MSHA interpreted the Fire Equipment Rule to require mine
11
operators to maintain shutoff valves on central waterlines in
operable condition. As a result, Consol asserts that it was
deprived of due process before facing civil penalties for
failing to ensure that the damaged shutoff valve at issue here
could be fully closed. We disagree.
The Due Process Clause of the Fifth Amendment protects
parties from being deprived of property without fair notice.
U.S. Const. amend. V; United States v. Hoechst Celanese Corp.,
128 F.3d 216, 224 (4th Cir. 1997). For this reason, and in
light of the “quasi-criminal” nature of civil penalties, we have
long recognized that “parties subject to . . . administrative
sanctions are entitled to . . . ‘clear notice’” of what conduct
is proscribed by a regulation before being subject to monetary
penalties for a particular violation. Id. (quoting First Am.
Bank of Va. v. Dole, 763 F.2d 644, 651 n.6 (4th Cir. 1985)).
Whether a sanctioned party had adequate notice of a particular
violation turns on the “relevant facts of each case.” Id.
(citing United States v. Bennett, 984 F.2d 597, 605 (4th Cir.
1993)).
Here, the ALJ explained that the Consol’s violation of the
Fire Equipment Rule involved two interrelated issues. First,
and most significantly, accumulated material on the exterior of
a shutoff valve on the main six-inch waterline prevented the
valve from fully closing, permitting water to continue to flow
12
into the damaged manifold as the miners attempted to reassemble
the severed fire valve. Second, lacking manufacturer-provided
leverage bars, the miners were unable to close the valve fully
before attempting to reinstall the fire valve.
The parties agree that, prior to the accident, MSHA never
alerted Consol that the agency viewed the condition of shutoff
valves in the mine as a violation of the Fire Equipment Rule.
Absent explicit prior notice, the Commission employs a
“reasonably prudent miner” test to determine whether the
operator nonetheless had sufficient notice of the risk of civil
penalties arising from a violative condition. DQ Fire &
Explosion Consultants, Inc., 36 FMSHRC 3083, 3087–88 (Dec.
2014); LaFarge N. Am., 35 FMSHRC 3497, 3499–500 (Dec. 2013).
Under this standard, the Commission considers “whether a
reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized
the specific prohibition or requirement of the standard.” DQ
Fire & Explosion Consultants, 36 FMSHRC at 3087 (internal
quotations omitted) (quoting Ideal Cement Co., 12 FMSHRC 2409,
2416 (Nov. 1990)).
Although we have yet to adopt the reasonably prudent miner
test, our Sister Circuits have used this objective test in
considering whether MSHA regulations provide adequate notice of
proscribed conduct. See, e.g., Black Beauty Coal Co. v. Fed.
13
Mine Safety & Health Review Comm'n, 703 F.3d 553, 558 (D.C. Cir.
2012); Mainline Rock & Ballast, Inc. v. Sec'y of Labor, 693 F.3d
1181, 1187 (10th Cir. 2012); Stillwater Min. Co. v. Fed. Mine
Safety & Health Review Comm'n, 142 F.3d 1179, 1182 (9th Cir.
1998). This test’s emphasis on the reasonably foreseeable scope
of regulatory directives derives in part from the recognition
that administrative agencies tasked with carrying out wide-
ranging health and safety statutes cannot anticipate every
danger that may arise under their purview. See Freeman United
Coal Min. Co. v. Fed. Mine Safety & Health Review Comm’n, 108
F.3d 358, 362 (D.C. Cir. 1997).
By the same token, a rule requiring explicit notice of any
conceivable violation as a condition of imposing civil sanctions
would leave open “large loopholes allowing conduct which should
be regulated to escape regulation.” Id. (internal quotations
omitted) (quoting Ray Evers Welding Co. v. OSHRC, 625 F.2d 726,
730 (6th Cir. 1980)); Phillips v. Interior Bd. of Mine
Operations Appeals, 500 F.2d 772, 778 (D.C. Cir. 1974)
(“Sporadic federal inspections can never be frequent or thorough
enough to insure compliance.”). Such a rule likewise would
contradict Congress’s admonition that miners and mine operators
themselves are primarily responsible for ensuring that their
mines are safe. 30 U.S.C. § 801(e); Power Fuels, LLC v. Fed.
Mine Safety & Health Review Comm'n, 777 F.3d 214, 217 (4th Cir.
14
2015); see also Dickenson-Russell Coal Co., LLC v. Sec'y of
Labor, 747 F.3d 251, 254 (4th Cir. 2014) (observing that a rule
holding MSHA inspectors principally responsible for mine safety
“would be manifestly unreasonable and unjustified in light of
the clear Congressional purpose to ensure that the primary
responsibility for safety remains with the mine owners and
miners”) (internal quotations and alterations omitted) (quoting
Myers v. United States, 17 F.3d 890, 904 (6th Cir. 1994))). For
these reasons, we agree with the Commission and our Sister
Circuits that MSHA regulations that permit a reasonably prudent
person familiar with the mining industry and the health and
safety objectives of the Mine Act to determine what conduct is
required or prohibited provide sufficient notice to mine
operators to satisfy due process and support potential
sanctions.
Acknowledging that this objective standard applies, Consol
nonetheless argues that it lacked fair notice that its conduct
violated the Fire Equipment Rule in this case. Specifically,
Consol argues that MSHA inspectors were aware that Consul
removed leverage bars provided by the shutoff valve manufacturer
soon after the valves were installed. Yet, according to Consol,
MSHA inspectors had never identified the bars’ absence as a
violation of the rule prior to the accident. According to
Consol, the agency’s failure to identify this known condition as
15
a violation left Consol without fair notice that failing to
provide the bars would result in civil sanctions.
In support, Consol notes that the Commission has held that
prior inconsistent enforcement has a role, in appropriate
circumstances, in determining whether a mine operator has fair
notice of a potential violation. See Alan Lee Good, 23 FMSHRC
995, 1005 (Sept. 2001) (explaining that “the consistency of the
agency’s enforcement” is one of a “wide variety of factors”
considered by the Commission). We agree that an affirmative
statement from a regulatory body empowered to implement and
enforce a particular regulatory scheme may be sufficient to
deprive regulated parties of clear notice of a later,
conflicting interpretation. See Hoechst Celanese Corp., 128
F.3d at 224-27 (finding lack of fair notice where state agency
exercising delegated federal authority provided waiver of
federal air quality standards based on interpretation later
rejected by federal regulators).
Here, however, Consol asks us to go a step further by
suggesting that prior inaction is sufficient to deprive an
operator of notice. We decline to do so. As previously noted,
it is the operator that bears principal responsibility for
providing safe working conditions in a mine. 30 U.S.C. §
801(e). Although MSHA investigators are required to issue
citations for known violations, id. §§ 813(a), 814(a), Consol
16
offers no support for the proposition that, absent prior
enforcement, the agency is precluded from seeking civil
penalties related to a particular violation. Quite the
opposite: because even the most stringent investigation may fail
to identify every potential violation, the objective test we
adopt today ensures that MSHA may take action to correct
violations that would be apparent to a reasonably prudent miner.
Moreover, although the lack of leverage bars contributed to
the miners’ inability to close the valve fully, the ALJ
concluded that the “sole reason the valve did not close . . .
was the accumulation of material around the handle stop.” J.A.
858 (emphasis added). In fact, investigators determined after
the accident that the valve could not be fully closed even under
significant force. For this reason, MSHA’s failure to recognize
the absence of leverage bars prior to the accident does not call
into question the ALJ’s finding that a reasonably prudent miner
would have recognized that an inoperable shutoff valve must be
replaced under MSHA’s Fire Equipment Rule.
Resisting this conclusion, Consol argues that it lacked
notice that the shutoff valves themselves qualified as
“firefighting equipment” within the meaning of the rule.
Specifically, Consol emphasizes that the valves control the flow
of water through the mine’s central waterline, which delivers
water for a variety of purposes throughout the mine. In
17
Consol’s view, the valves thus do not qualify as “firefighting
equipment” and, to the extent that MSHA now contends that they
do, Consol lacked notice that the agency interpreted the Fire
Equipment Rule to encompass the valves.
As an initial matter, we reject Consol’s contention that
shutoff valves on a mine’s central waterline do not qualify as
“firefighting equipment.” There is ample evidence in the record
to demonstrate that such valves are an integral element of a
mine’s fire suppression system. For example, the ALJ noted that
the valve involved in the accident at issue was included on the
mine’s fire protection map. Further, as previously explained,
MSHA regulations specifically include waterlines among required
firefighting equipment, with MSHA requiring that these lines be
capable of delivering specified flow-rates to ensure that fires
may be effectively extinguished. 30 C.F.R. § 75.1100-1(a). At
oral argument, counsel for Consol acknowledged that, had miners
been unable to fully open a shutoff valve, the flow of water may
fall below these minimum thresholds, violating the Fire
Equipment Rule. Much the same, here, damage to the shutoff
valve led directly to a catastrophic failure of the fire valve,
which Consol acknowledges constitutes a piece of “firefighting
equipment.” For this reason, Consol’s effort to distinguish
between covered waterlines and the valves that control the flow
of water through those lines is unavailing.
18
Moreover, we are unpersuaded that Consol lacked fair notice
that the failure to replace an inoperable shutoff valve would
violate the Fire Equipment Rule. Unlike the leverage bars,
Consol does not suggest that MSHA was aware that shutoff valves
could not be fully closed. On the contrary, the evidence
demonstrates that the valve’s defective condition became
reasonably apparent only after miners attempted to close the
valves at the time of the accident. Nonetheless, Consol’s
assertion that the ALJ improperly focused on the moments
immediately preceding the accident misses the mark. Indeed, it
is likely often the case that the specific conditions rendering
a piece of equipment inoperable become apparent only under
certain circumstances. As such, that neither MSHA nor the
operator previously noted a particular violation has little
bearing on whether, upon realizing that a valve could not be
fully closed, a reasonably prudent miner would recognize that
the valve was inoperable and must be removed from service.
In sum, the record evidence demonstrates that a reasonably
prudent miner would recognize that using inoperative shutoff
valves violated MSHA regulations and placed miners at risk.
Consequently, Consol had fair notice that the failure to replace
defective shutoff valves raised the possibility of sanctions,
and MSHA is therefore not barred from seeking civil penalties in
connection with this violation.
19
C.
Consol next challenges the ALJ’s conclusion that Addington
was acting as Consol’s agent at the time of the accident, such
that any negligence attributable to him in connection with the
accident may be imputed to Consol. Again, Consol is mistaken.
Under the Mine Act, a mine operator may be held responsible
for the knowledge and negligence of any person who qualifies as
the operator’s “agent” within the meaning of the statute. See
Capitol Cement Corp. v. Sec’y of Labor, Mine Safety & Health
Admin., 229 F.3d 1141, 2000 WL 1205389 at *4 (4th Cir. 2000)
(per curiam) (citing Sec’y of Labor v. Southern Ohio Coal Co., 4
FMSHRC 1458, 1463 (Aug. 1982)). The Act defines “agent” to mean
“any person charged with responsibility for the operation of all
or a part of a coal or other mine or the supervision of the
miners in a coal or other mine.” 30 U.S.C. § 802(e).
We have explained that this “broad definition of agent
indicates that Congress did not intend to limit the vicarious
liability of an owner or lessee to common law concepts of
agency.” Bituminous Coal Operators’ Ass’n v. Sec’y of Interior,
547 F.2d 240, 247 (4th Cir. 1977). And, in applying this
definition, the Commission and other Circuits have focused on
whether the miner exercised managerial or supervisory
responsibilities at the time of his negligent conduct.
Martin Marietta Aggregates, 22 FMSHRC 633, 637-38 (May 2000));
20
see also Original Sixteen to One Mine, Inc. v. Fed. Mine Safety
& Health Admin., 175 F. App’x 825, 827 (9th Cir. 2006).
Applying this standard here, the ALJ concluded that
Addington served as a supervisor—and therefore was Consol’s
“agent”—when he oversaw the miners’ efforts to repair the
damaged fire valve. In reaching this conclusion, the ALJ
acknowledged that Addington had never overseen an equipment
move, but noted that Semones expected Addington to act as a
foreman during the move. The ALJ further observed that the
other testifying miners referred to Addington as the “boss” and
agreed that he was in charge of Green and Saunders as they moved
the shuttle car through the mine. J.A. 855. Finally, the ALJ
rejected the Consol’s suggestion that, because Addington lacked
experience moving equipment, he was not in a position to oversee
Green and Saunders as they attempted to repair the damaged
valve. To so hold, the ALJ explained, would allow mine
operators to avoid liability by assigning untrained foreman to
oversee tasks with which they are unfamiliar.
On appeal, Consol renews its argument that, lacking
experience moving equipment, Addington was not in a position to
act as a supervisor at the time of the accident. Consol further
notes that miners frequently moved equipment through the mine
without the assistance of a foreman, and Addington was assigned
to assist Green and Saunders merely to act as an “extra set of
21
eyes” and learn more about moving equipment through the mine.
Appellant’s Br. at 16. In light of this evidence, Consol faults
the ALJ’s “conclusory” finding that Addington was acting as
Consol’s agent at the time of the accident and suggests that the
ALJ simply assumed that, as a foreman, Addington was by
definition an agent within the meaning of the Mine Act. Id. at
17.
We disagree. The ALJ’s conclusion that Addington acted as
Consol’s agent in responding to the damaged valves is amply
supported by the evidence. Importantly, to determine whether
Addington’s negligence may be imputed to Consol, the parties
agree that we must consider whether he “exercised managerial
responsibilities at the time of his negligent conduct.”
Martin Marietta Aggregates, 22 FMSHRC at 638 (citing Rochester &
Pittsburgh Coal Corp., 13 FMSHRC 189, 194 (Feb. 1991)). In this
light, Consol misplaces reliance on Addington’s authority to
direct the movement of the shuttle car. Instead, the relevant
question is whether the ALJ properly held Consol responsible for
Addington’s failure to recognize the danger presented by the
damaged valves and subsequent failure to respond appropriately
to that danger. Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (4th
Cir. 1979) (per curiam) (upholding MSHA orders attributing
knowledge of rank-and-file miner assigned to conduct pre-shift
safety examination to operator).
22
With this in mind, testimony elicited from the miners
provides significant support for the ALJ’s findings. In
particular, although Semones testified that he did not expect
Addington to direct Green and Saunders as they moved the shuttle
car, he acknowledged that he expected Addington to act as a
foreman during the move. Semones testified that he expected
Addington to assign tasks to the other miners; ensure compliance
with company policies; remind the other miners to wear safety
gear; and, most important, alert Semones in the event of an
emergency. See J.A. 686-89. Similarly, although Green and
Saunders did not await instructions from Addington before
attempting to reassemble the broken fire valve, Green testified
that he would not have ignored instructions from Addington and
would have stopped working to repair the valve if Addington had
directed him to do so. Thus, Green testified that, because
Addington did not provide any direction to the contrary, he
assumed Addington approved of the miners’ efforts to reattach
the valve.
In the end, Green’s testimony that he would have followed
Addington’s instructions in the most critical moments preceding
the accident—that is, while the miners attempted to repair the
damaged fire valve—supports the ALJ’s finding that Addington was
acting as a supervisor “at the time of his negligent conduct.”
Original Sixteen to One Mine, 175 F. App’x at 827. Likewise,
23
Addington’s testimony that he contacted Semones to report the
damaged valve indicates that he understood that he was
responsible for managing the miners’ response. Finally, the ALJ
correctly dismissed Consol’s suggestion that, because Addington
failed to supervise Green and Saunders more closely as they
attempted to repair the valve, he cannot be viewed as Consol’s
agent.
As such, substantial evidence supports the ALJ’s
conclusions, and therefore those conclusions are conclusive.
Almy, 679 F.3d at 301-02. Accordingly, because Addington was
acting as Consol’s agent in connection with the accident
response, the ALJ properly imputed his knowledge and negligence
in connection with the accident to Consol.
D.
Finally, Consol contests the ALJ’s finding that both of the
violations resulted from Consol’s unwarrantable failure to
comply with MSHA regulations. As noted, we review these
findings “to determine if they are supported by substantial
evidence in the record.” Windsor Coal Co. v. Sec’y of Labor,
166 F.3d 337 (4th Cir. 1998) (per curiam) (citing authorities).
Under § 104(d) of the Mine Act, civil sanctions resulting
from the failure to comply with MSHA health and safety
regulations are determined based on the significance of the
24
violation and the degree of negligence exhibited by the
operator. See 30 U.S.C. § 814(d)(1). Violations found to be
“significant and substantial” or to have resulted from an
operator’s “unwarrantable failure” to comply with MSHA
regulations lead to increased fines and other penalties. Id. §§
814(d); 30 C.F.R. § 100.3(a), (d), (e); Knox Creek Coal, 811
F.3d at 153; Eagle Energy, Inc. v. Sec’y of Labor, 240 F.3d 319,
321-22 (4th Cir. 2001).
Here, the ALJ found that both of the charged violations
resulted from Consol’s unwarrantable failure to comply with
applicable MSHA regulations. 2 In so doing, the ALJ considered a
variety of “aggravating factors” identified by the Commission as
relevant to determining whether an operator demonstrates at
least a “serious lack of reasonable care” in failing to abide by
a particular regulation. J.A. 844.
In general, an “unwarrantable failure” involves “conduct
that is ‘not justifiable’ or is ‘inexcusable,’” Windsor Coal
Co., 166 F.3d at 337 (quoting Sec’y of Labor v. S & H Mining,
Inc., 15 FMSHRC 2387, 2390 (1993))—that is, an operator’s
“aggravating conduct constituting more than ordinary
negligence,” Eagle Energy, 240 F.3d at 321-22. The Commission
has identified a variety of factors to be considered in
2The ALJ also found that each of the charged violations was
significant and substantial, and Consol does not contest that
finding on appeal.
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determining whether a violation constitutes an unwarrantable
failure to comply. These factors include: “(1) the extent of
the violative condition, (2) the length of time that the
violative condition existed, (3) whether the violation posed a
high degree of danger, (4) whether the violation was obvious,
(5) the operator’s knowledge of the existence of the violation,
(6) the operator’s efforts in abating the violative condition,
and (7) whether the operator had been placed on notice that
greater efforts were necessary for compliance.” Wolf Run Mining
Co., 35 FMSHRC 3512, 3520 (Dec. 2013) (citing authorities);
Black Beauty Coal Co., 703 F.3d at 560.
After reviewing each of these factors in this case, the ALJ
concluded that each violation resulted from an unwarranted
failure to comply with MSHA regulations. As to the fire
equipment violation, the ALJ concluded that the failure to
ensure that all shutoff valves on the main waterline could be
fully closed “stemmed from extensive underlying negligence.”
J.A. 866. In particular, the ALJ noted that Consol had long
failed to maintain the valve in a clean condition and removed
the leverage bars soon after the valve was installed. Moreover,
the ALJ explained that, at the time of the accident, the
inoperable shutoff valve was obviously open, posing significant
danger to surrounding miners. Finally, the ALJ cited
Addington’s failure to recognize and properly address this
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danger—negligence, which the ALJ properly imputed to Consul, see
supra Part II.C, as further evidence of Consol’s negligent
failure to replace the damaged shutoff valve before attempting
to repair the severed fire valve. Thus, although MSHA had never
previously cited Consol’s failure to provide leverage bars, the
ALJ concluded that this lack of notice was “outweighed by the
very significant aggravating factors” counseling in favor of an
enhanced penalty. Id.
Likewise, with respect to the Mining Equipment Rule
violation, the ALJ explained that, though relatively brief in
duration and small in scale, the damage to the fire valve was
obvious and presented significant danger to numerous miners.
Given that passing machinery frequently struck protruding valves
(including at least one prior incident involving a similar, if
less severe, injury) and that Addington was aware that this
particular valve was damaged but failed to more closely
supervise Green and Saunders, the ALJ found that Consol
displayed an aggravated lack of due care in failing to remove
the damaged valve from service.
Consol contests these findings on two bases. First, Consol
argues that the ALJ’s finding that the fire valve’s
inoperability was obvious is not supported by the record.
Specifically, Consol notes that the miners were initially able
to reattach the valve with a pipe wrench and that MSHA’s expert
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testified that the damage to the valves was apparent only upon
closer investigation. Consol further suggests that signs that
the shutoff valve was not fully closed at the time of the
accident would not have been apparent in the mine setting.
Again, however, substantial evidence supports the ALJ’s
conclusions, and thus we may not set them aside on appeal.
Windsor Coal Co., 166 F.3d at 337. As to the fire valve, the
ALJ relied on testimony from Green that he had to forcibly
reattach the damaged valve, as well as testimony from the MSHA
inspector that anyone familiar with such a valve would
understand that it likely would be damaged under the
circumstances, to find that the damage to the threading would
have been obvious at the time of the accident. Likewise, the
ALJ noted that the valve manufacturer’s manual suggests that
disassembly of the valve may damage the valve and render it
inoperable. The ALJ also relied on the MSHA investigator’s
testimony that the damaged shutoff valve was audibly and visibly
open at the time of the accident, as well as the miners’
testimony that water continued to flow out of the manifold as
they began to reattach the broken fire valve, to conclude that
the shutoff valve was obviously not functioning at the time of
the accident. The MSHA inspector likewise testified that a
second mine foreman confirmed that the valve was “audibly
leaking” soon after the accident. J.A. 86.
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Second, relying on its earlier argument that Addington did
not serve as Consol’s agent, Consol suggests that the ALJ
improperly considered Addington’s knowledge and actions in
assessing Consol’s negligence in connection with the accident.
As previously explained, however, the ALJ did not reversibly err
in concluding that Addington qualified as Consol’s agent with
respect to the miners’ response to the damaged fire valve.
Supra Part II.C. Moreover, even absent such imputation, the
ALJ’s unwarranted-failure findings are supported by substantial
evidence. As the ALJ explained, the present accident followed
an extensive history of similar incidents in the mine. For
instance, the mine’s safety supervisor testified that he was
aware of the risk of damaging fire valves while moving
equipment. And other miners agreed that valves were struck
frequently by moving equipment. Similarly, the ALJ reasonably
concluded that the material on the inoperable shutoff valve
would have accumulated over time and would have been readily
apparent upon close inspection. In fact, following the
accident, Consol took steps to ensure that leverage bars are
accessible throughout the mine and rerouted the entire waterline
to move it farther away from the haulage track.
In light of the record evidence showing that Consol was or
should have been aware of the conditions that led to the
accident well before the accident, the ALJ’s conclusion that
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Consol demonstrated more than ordinary negligence in failing to
address these conditions is supported by substantial evidence.
Windsor Coal Co., 166 F.3d at 337 (upholding unwarrantable-
failure finding where the operator “knew of the problems with
[mine equipment, but] failed to take adequate measures to . . .
prevent” an obvious danger). Consequently, we affirm the ALJ’s
findings that the challenged violations stemmed from Consol’s
unwarrantable failure to comply with applicable MSHA health and
safety regulations.
III.
After carefully considering the record as a whole, we
conclude that the ALJ did not err in finding that Consol had
fair notice that the dangerous conditions that ultimately led to
the avoidable death of a miner constituted an “unwarrantable
failure” to comply with applicable mine safety regulations.
Accordingly, for the foregoing reasons, the petition for review
is denied.
PETITION FOR REVIEW DENIED
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