Knox Creek Coal Corporation v. Secretary of Labor

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2010-81-R. [999739763]. [14-2313]

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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.

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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).
so-called
sealed

“permissibility”

enclosures

of

violations,

electrical

Three violations were
involving

equipment,

inadequately

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

outcome

Secretary
is

Regarding

of

unaffected

the

Labor
when

accumulations

(the
the

“Secretary”),
proper

violation,

but

standard
we

is

conclude

that

the

applied.
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.

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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

U.S.C. § 801(c).

death

and

serious

physical

harm.”

30

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
year.”
Safety

inspections

and

investigations

in

. . .

mines

each

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

Health

Review

Comm’n,

528

F.3d

310,

312

(4th

Cir.

2008).
Mine inspectors issue citations when a mandatory safety and
health

standard

violation

is

has

been

designated

violated.
as

30

“significant

U.S.C.
and

§ 814(a).

A

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
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violations”

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designation

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and

possible

withdrawal

prohibiting operations in the affected mines.
(e);

30

C.F.R.

§ 100.3(a)

(enumerating

orders

Id. § 814(d),

factors

for

the

determination of a penalty, including whether the operator has a
history of violations).
An

operator

may

contest

a

citation,

designation as S&S, before the Commission.

as

well

as

its

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

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exceed

.004

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inches.

30

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C.F.R.

§§ 18.31(a)(6),

75.503. 1

As

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

to
an

prevent

an

explosion

explosion

outside

the

inside

an

enclosure

enclosure.

An

from

internal

explosion will not occur without an ignition source such as an
electrical

arc

or

spark,

events

that

do

not

electrical equipment is functioning properly.
use

in

the

mining

environment”

can,

for

occur

when

the

However, “normal
example,

involve

vibrations and water seepage, which over time may damage the
electrical connections such that the potential for an ignition
can exist.
Each

J.A. 326–27.
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

1

The 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

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starting

to

corrosion.

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wear,

and

for

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another,

evidence

showed

rust

and

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

establish[ed]

the

because

likelihood

of

the
a

Secretary

triggering

arc

inside the enclosures for each of the violations.
also

S.A.

64,

65.

In

so

deciding,

2

the

ALJ

had
or

“not
spark”

S.A. 63; see
rejected

the

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).
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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

likely,” id. at 1133.
clarified

standard,

arcing

or

sparking

was

reasonably

Examining the evidence in light of this

the

Commission

ruled

that

the

“evidence

compels the conclusion” that the permissibility citations were
S&S.

Id.

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C.
In addition to the above permissibility violations, Knox
Creek

contests

the

“accumulations”

Secretary’s

violation

under

S&S
30

designation

C.F.R.

of

§ 75.400,

an

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,

creating

whose

friction

movement

points

at

with

the
the

time

visible

the

accumulations

cleaning

efforts

around

underway,

inspection

accumulations

consequent potential for ignition and fire.
observed

of

7:00
but

the

When the inspector

a.m.,
the

and

was

there

were

accumulations

no
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
8

therefore

there

was

no

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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

violations.
the

recalculation

penalties

regarding

Knox Creek, 36 FMSHRC at 1142.

Commission’s

dismissed

of

that

decision
appeal

to

this

because

the

Court,

all

four

Knox Creek appealed
but

Commission’s

we

initially

remand

for

redetermination of penalties rendered the agency’s decision nonfinal.

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

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Knox

Creek’s

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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

accumulations

to

both

violations.

the

First,

it

permissibility

and

contends

the

that

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,

exceeding its statutorily prescribed standard of review.

thereby
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.
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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
even

one

of

and
the

accumulations
ALJ’s

violations

factual

did

not

findings.

question

Rather,

the

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

in

citations

reviewing
were

not

the
S&S,

finding
the

that

Commission

the
found

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

First, it

concluded

violative

that

the

ALJ

erred

by

considering

the

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.”
FMSHRC at 1132.

Knox Creek, 36

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).
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both prior to and at the time of the violation and as they would
have existed had normal mining operations continued.”
ALJ

had

not

applied

criticized

the

essentially

a

ALJ

for

standard.
“requiring

statistical

characterized
likelihood.”

that

as

“an

frequency

unwarranted

Second,
the

the

Secretary

of

a

standard

spark,”
beyond

Id.

The

Commission
to

prove

which

it

reasonable

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.

inconsistent

Each
with

of

these
decades

errors,
of

the

Commission

binding

Commission

held,

was

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)],
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inspectors

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must

examination

for

leave

their

Pg: 13 of 37

vehicles

non-obvious

and

hazards,”

conduct

or

a

whether

“opportunity to observe” such hazards was sufficient.
594.

Without

reconsidering

any

of

the

factual

detailed
a

mere

Id. at
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.
There

and

here,

the

Commission’s

Id. at 597.

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.
§ 816(a)(1).

30 U.S.C.

And we review the Commission’s legal conclusions

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

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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).
is

It is only where the relevant statutory provision

unclear

that

we

owe

deference

interpretation of that provision.
15.

to

the

Secretary’s

See Wamsley, 80 F.3d at 113–

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.
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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.”
As

30 U.S.C. § 814(d)(1).
the

Secretary

notes,

the

word

“could”

suggests

no

particular degree of likelihood, but rather a mere possibility
that

the

hazard.
to

violation

itself

might

causally

contribute

to

the

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

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

surrounding

that

the

in

turn

must

violation.

depend

Thus,

on

there

the
are

circumstances
at

least

two

plausible interpretations regarding whether the Secretary must
establish the reasonable likelihood of an ignition to render a
permissibility
ambiguous.

violation

S&S.

As

a

result,

the

statute

is

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
15

abated

at

the

time

of

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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

Wamsley, 80 F.3d at 113–15.
to

the

Secretary’s

the

Commission’s—interpretations.

Exactly how much deference is owed

litigating

positions,

however,

is

not

question this Court has previously had occasion to resolve. 6

a

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.
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(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

exercise of that authority.”

is

rendered

in

the

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 noticeand-comment

rulemaking

Procedure Act (APA).

procedures

of

the

Administrative

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

by rule in accordance with procedures set forth in this section
and

in

accordance

procedures]

develop,

with

[APA

promulgate,

notice-and-comment
and

revise

. . .

rulemaking
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

rulemaking under the APA).

the

rules

for

notice-and-comment

Without a doubt, then, the first

element articulated in Mead is satisfied.
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In this case, however, whether Mead’s second requirement is
satisfied

presents

interpretations
product

of

we

the

authority.

a

more

are

Mine

challenging

asked
Act’s

to

issue.

consider

express

The

here

are

delegation

of

agency
not

the

lawmaking

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.”
When

an

agency’s

A.T. Massey, 472 F.3d at 166.

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

pronouncement” of law.

that

should

Mead, 533 U.S. at 230.

underlie

a

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

determination—i.e.

are
those

“indicia
of

of

weighing

a

legislative-type

conflicting

policies,

considering adversarial viewpoints, [and] promulgating forward-

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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.
that

the

under

the

Secretary
Mine

is

Act’s

Indeed, we have previously recognized
the

authoritative

scheme.

Wamsley,

policymaking
80

F.3d

at

entity
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
positions

fundamental

aspects

distinguish

of

them

the

from

Secretary’s
the

litigating

“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

others in declining to apply Chevron deference.

this

Court

and

See Mead, 533

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

rulemaking

positions

do

not

procedures,

arise

out

of

the
a

Secretary’s

formal

procedure

intended to foster the “fairness and deliberation that should
underlie a pronouncement [of law].”
Secretary

makes

enforcement

Mead, 533 U.S. at 230.

choices

and

adopts

The

litigating

positions through an internal and discretionary process closed
to

public

input.

(characterizing
Mine

Act

as

the

See

Speed

Secretary’s

“discretionary”

Mining,
citation

and

528

F.3d

decisions

“therefore

at

under

317
the

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

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For

these

litigating

Filed: 01/21/2016

reasons,

positions

are

Pg: 21 of 37

we

conclude

not

that

entitled

to

That being said, deference is still due.
“developing

rules

and

enforcing

them

the

Secretary’s
deference. 7

Chevron

Keeping in mind that
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).
weigh

In evaluating the Secretary’s interpretation, we will
“the

validity

of

thoroughness
its

evident

reasoning,

its

in

its

consistency

consideration,
with

earlier

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

7

the
and

Id.

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.
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C.
The disputed standards relevant to both the permissibility
and

accumulations

developed

violations

Mathies

test.

each

First

implicate

the

articulated

Commission-

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

Mathies,
dispute

question
6

FMSHRC

regarding

will
at
both

be

3–4

of

a

reasonably

(footnote

the

omitted).

permissibility

22

serious

and

The

nature.”
parties’

accumulations

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violations

Filed: 01/21/2016

implicates

the

Pg: 23 of 37

proper

interpretation

of

Mathies’

third prong.
Regarding
argues

that

the
“the

permissibility
third

prong

violations,

of

Mathies

the

Secretary

focuses

on

the

likelihood that the hazard to which the violation contributes
will

cause

injury,

occurring.”

not

on

Respondents’

the
Br.

likelihood
at

27

of

the

(emphasis

hazard
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
Chevron

affording

deference,

we

the
find

Secretary’s
the

interpretation

Secretary’s

full

interpretation

nevertheless persuasive, being “consisten[t] with earlier . . .
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pronouncements” and “thorough[]” in its reasoning.
323 U.S. at 140.

Skidmore,

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
FMSHRC

Secretary
1257,

1280

of

Labor

(2010),

v.
the

Musser

Engineering,

relevant

violation

Inc.,
was

32

“the

failure to have an accurate map,” and the relevant hazard was
“the danger of breakthrough to an adjacent mine and resulting
inundation.”
argues

now,

The
that

mine

operator

under

argued

Mathies’

then,

third

as

prong,

Knox
there

Creek
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
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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.
(“[T]he

question

See Peabody Midwest, 762 F.3d at 616

[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

requiring

the

area

medical

would

cause

attention”

a

reasonably

(emphasis

added));

serious

injury

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
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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,

be

the

Commission

reasoned

that

a

violation

should

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

danger to safety—contributed to by the violation,”

measure

of

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.
26

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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

with

interpretation

of

Mathies,

compliance

some

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

of

an

instance,

insulation

in

entirely
this

surrounding

separate

case,
its

mandatory

Knox

Creek

electrical

safety

suggests

standard.
the

should

wiring

that

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.”
standards

Respondents’ Br. at 37.
“mandatory”

unsurprising

that

other

in

name

appellate

Such a policy would make such
only.

It

courts

have

is

therefore

concluded

that

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

they

are

irrelevant
27

to

the

[S&S]

inquiry.”

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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

Act”),

Health

and

Safety

Act

of

1969

(“Coal

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,

permissibility

requirements

in

the

light

Coal

of

a

Act

spate

tightened
of

methane

explosions, some of which may have been triggered by relatively
minor

ignition

(1969).

sources.

See

S.

Rep.

No.

91-411,

at

26–31

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

28

both

Commission

precedent

and

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legislative intent.

Pg: 29 of 37

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

likelihood”

in
of

effectively
occurrence

changing
to

Petitioner’s Reply Br. at 10.

a

Mathies’

simple

“reasonable

“could

occur.”

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
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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,
considered

despite

above,

Knox

the

numerous

Creek

argues

Commission
that

the

decisions
Secretary’s

approach is inconsistent with Commission precedent, focusing on
two cases.
10

FMSHRC

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

miniscule

“[t]he

amounts

in

methane

of

mine

and

ignition or explosion.”

Texasgulf

contained

had

had

never

a

only

methane

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

amount

methane

of

with
in

whether
the

there

atmosphere

impermissible gaps and ignition sources.”
at 501.

was

“a

sufficient

surrounding

the

Texasgulf, 10 FMSHRC

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

ignition that could result in an explosion.”

hazard

was

“an

The Commission

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

considerations outlined above.

103–04,

and

by

the

various

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

persuade”:
appellate

interpretation

it

is

court

not

only

precedent

has

the

necessary

consistent

applying

with

Mathies,

“power

Commission
but

also

to
and
well

supported by the Mine Act’s history and purpose.
Applying this legal standard to the three permissibility
citations,
Commission’s
evidence.

we

have

S&S

little

trouble

determinations

Neither

party

were

concluding

supported

disputes

the

by

that

the

substantial
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
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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.”
Consequently,
surrounding

the
each

ALJ

found

that,

violation,

an

concentrations

was

resulting

explosion

reasonably

injuries to miners.

respect

accumulation

explosive

was

with

reasonably

to

of

likely,

likely

to

J.A. 316.
the

facts

methane
and

cause

that

at
a

serious

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

violation also relates to Mathies’ third prong.
argues
should]

that

“a

not

rendering

mine

mitigate

operator’s

a

an

resultant

Respondents’ Br. at 52.
S&S

liability

may

be

intent

to

abate

accumulations
The Secretary
[a

otherwise

S&S

violation,”

injury

not

reasonably

violation
i.e.,

by

likely.

According to the Secretary, although
mitigated
33

where

a

violation

is

being

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Doc: 44

actively

Filed: 01/21/2016

abated,

Pg: 34 of 37

that

be

can

only

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).”
Labor

v.

U.S.

Steel

Mining

Co.,

6

FMSHRC

1573,

Sec’y of

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).
“confluence
However,

It
of

this

is

true

factors”

approach

that

the

approach

does

not

Commission
to

prevent

S&S
the

has

applied

a

determinations.
Commission

from

providing further clarification as to what factors ought to be
evaluated, and how.

That is all the Commission did here.
34

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Pg: 35 of 37

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,
intended

if

could

evidence
mitigate

that
an

abatement

S&S

efforts

determination,

are

mine

merely

operators

might have incentives to “plan” more abatement measures than
they have the actual capacity to perform.

Even assuming good-

faith

of

intentions

to

abate

on

the

part

mine

operators,

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

therefore

reasonable

for

the

discount evidence of the former.

Secretary

and

Commission

to

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

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Pg: 36 of 37

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.”
of

Labor

v.

Old

Ben

Coal

Co.,

1

FMSHRC

1954,

1957

Sec’y
(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.
underway

at

Consequently,
the

time

of

since

citation,

no
it

actual
is

abatement

clear

that

was
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
36

at

issue

here

compels

the

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conclusion

that

the

violations

were

significant

§ 814(d)(1).

Commission
and

Pg: 37 of 37

reached—that

is,

that

those

substantial

under

30

U.S.C.

Accordingly, we deny the petition for review.

PETITION FOR REVIEW DENIED

37