Consol Buchanan Mining Company v. Secretary of Labor
Filing
AMENDED OPINION filed amending and superseding opinion dated 11/10/2016. Originating case number: VA 2013-190 Copies to all parties.. [15-1321]
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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:
Amended:
November 10, 2016
November 23, 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. BlairKijewski,
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,
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UNITED STATES DEPARTMENT OF LABOR,
Respondent, Secretary of Labor.
2
Arlington,
Virginia,
for
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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
Consol asserts
that
safety
agency
the
mine
erred
regulations.
in
concluding
Further,
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
3
move
to
“get
him
some
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experience”
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with
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the
J.A.
process.
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
debris from the mine.
the
accumulation
of
years
of
dust
and
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.
“ladder
system,”
such
that
These valves were arranged in a
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
waterline as the machinery moved through the mine.
4
the
main
Though aware
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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
recounted
that
directed
he
report
the
accident.
Addington
to
Semones
continue
later
moving
the
shuttle car to allow a second crew to repair the damaged valve.
5
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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
Assuming
the
working
miners
to
knew
reassemble
how
to
the
repair
broken
the
fire
valve,
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
attempting
threading
before
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.
1
As a result,
Addington 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
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the
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valve
Saunders
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was
and
suddenly
fatally
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ejected
injuring
from
him.
the
A
manifold,
Mine
Safety
striking
&
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.
followed,
with
investigators
A more extensive MSHA inquiry
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
damaged
machinery
fire
or
valve
equipment
after
it
from
was
service,
for
dislocated
from
reusing
the
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
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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, a Commission Administrative Law Judge
(“ALJ”) upheld the investigators’ findings and concluded that
each
of
the
failure”
to
Pursuant
violations
comply
to
stemmed
with
Section
the
104(d)(1)
from
Consol’s
identified
of
the
“unwarrantable
MSHA
regulations.
Act,
30
Mine
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.
company
contends
inoperable
because
that
shutoff
MSHA
had
it
valve
not
lacked
fair
violated
previously
notice
the
cited
Fire
Consol
First,
that
using
Equipment
for
the
an
Rule
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
negligence attributable to him may be imputed to Consol.
8
any
Last,
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Consol
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contests
demonstrated
the
ALJ’s
heightened
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ultimate
negligence
in
finding
failing
that
to
Consol
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)).
review
the
Commission’s
legal
conclusions
de
novo,
We
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)).
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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.
U.S.C. § 801(c).
30
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
mines.
the
existence
Id. § 801(e).
of”
dangerous
conditions
in
their
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
operative condition.”
.
.
.
be
maintained
30 C.F.R. § 75.1100-3.
in
a
usable
and
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
10
and
equipment
shall
be
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maintained
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in
equipment
in
operating
unsafe
immediately.”
The
safe
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condition
condition
shall
be
and
machinery
removed
from
or
service
Id. § 75.1725(a).
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
inspectors
are
coal
mine
“in
its
responsible
for
entirety.”
issuing
Id.
citations
MSHA
for
any
identified violations and otherwise assisting mine operators in
complying with applicable regulations.
Where,
as
either
here,
“of
investigators
such
a
Id. §§ 813(a), 814(a).
determine
nature
as
that
could
a
violation
significantly
is
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
penalties and other potential sanctions.
may
lead
to
enhanced
See id. §§ 814(d)(1),
(d)(2), (e).
B.
Consol first contends that it lacked adequate notice that
MSHA
interpreted
the
Fire
Equipment
11
Rule
to
require
mine
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operators to maintain shutoff valves on central waterlines in
operable condition.
deprived
of
due
As a result, Consol asserts that it was
process
before
facing
civil
penalties
for
failing to ensure that the damaged shutoff valve at issue here
could be fully closed.
The
Due
Process
We disagree.
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 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 into
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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
“reasonably
prior
prudent
notice,
miner”
the
test
Commission
to
determine
employs
whether
a
the
operator nonetheless had sufficient notice of the risk of civil
penalties
arising
from
Explosion
Consultants,
a
violative
Inc.,
36
condition.
FMSHRC
3083,
DQ
Fire
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.”
Fire
&
Explosion
Consultants,
36
FMSHRC
at
3087
DQ
(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
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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
ranging
health
and
agencies
safety
tasked
statutes
with
carrying
cannot
danger that may arise under their purview.
out
wide-
anticipate
every
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
Operations
Cir.
1980));
Appeals,
500
Phillips
F.2d
v.
Interior
772,
778
Bd.
(D.C.
of
Cir.
Mine
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
mines are safe.
primarily
responsible
for
ensuring
that
their
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
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2015); see
Filed: 11/23/2016
also
Pg: 15 of 30
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
responsibility
for
purpose
safety
to
remains
ensure
with
that
the
the
mine
primary
owners
and
miners”) (internal quotations and alterations omitted) (quoting
Myers v. United States, 17 F.3d 890, 904 (6th Cir. 1994))).
these
reasons,
we
agree
with
the
Commission
and
our
For
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
operators
prohibited
to
satisfy
provide
due
sufficient
process
and
notice
support
to
mine
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.
Consol
argues
that
MSHA
inspectors
were
aware
Specifically,
that
Consol
removed leverage bars provided by the shutoff valve manufacturer
soon after the valves were installed.
MSHA
inspectors
violation
of
had
the
never
rule
identified
prior
to
the
Yet, according to Consol,
the
bars’
accident.
absence
as
According
a
to
Consol, the agency’s failure to identify this known condition as
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a
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violation
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left
Consol
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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
considered by the Commission).
statement
enforce
from
a
deprive
a
regulatory
particular
regulated
conflicting
body
variety
empowered
of
factors”
to
implement
be
sufficient
scheme
may
clear
of
interpretation.
“wide
We agree that an affirmative
regulatory
parties
a
notice
See
Hoechst
of
a
Celanese
and
to
later,
Corp.,
128
F.3d at 224-27 (finding lack of fair notice where state agency
exercising
federal
delegated
air
federal
authority
quality
provided
standards
based
interpretation
on
waiver
of
later
rejected by federal regulators).
Here,
suggesting
however,
that
Consol
prior
operator of notice.
it
is
the
safe
801(e).
Although
us
to
go
inaction
is
sufficient
We decline to do so.
operator
providing
asks
that
working
MSHA
bears
in
investigators
a
step
further
by
to
deprive
an
As previously noted,
principal
conditions
a
responsibility
mine.
are
30
required
for
U.S.C.
to
§
issue
citations for known violations, id. §§ 813(a), 814(a), Consol
16
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offers
no
Filed: 11/23/2016
support
for
the
agency
enforcement,
penalties
related
to
the
proposition
is
a
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precluded
particular
that,
prior
seeking
from
absent
civil
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.”
858 (emphasis added).
J.A.
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
notice
that
“firefighting
this
the
conclusion,
shutoff
equipment”
Consol
valves
within
argues
themselves
the
meaning
that
it
lacked
qualified
of
the
as
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
17
throughout
the
mine.
In
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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
Equipment Rule.
minimum
thresholds,
violating
the
Fire
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.
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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
demonstrates
that
closed.
the
On
valve’s
the
contrary,
defective
the
evidence
condition
became
reasonably apparent only after miners attempted to close the
valves
at
assertion
the
time
that
the
of
the
ALJ
accident.
improperly
Nonetheless,
focused
on
Consol’s
the
immediately preceding the accident misses the mark.
moments
Indeed, it
is likely often the case that the specific conditions rendering
a
piece
certain
of
equipment
circumstances.
operator
previously
inoperable
As
noted
become
such,
a
that
particular
apparent
neither
only
MSHA
violation
under
nor
has
the
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
valves
miner
would
violated
MSHA
recognize
that
regulations
using
and
inoperative
placed
miners
shutoff
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.
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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.”
We
have
explained
that
30 U.S.C. § 802(e).
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
240,
F.2d
247
(4th
Cir.
1977).
And,
in
applying
this
definition, the Commission and other Circuits have focused on
whether
the
responsibilities
miner
at
exercised
the
time
managerial
of
his
or
supervisory
negligent
conduct.
Martin Marietta Aggregates, 22 FMSHRC 633, 637-38 (May 2000));
20
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see also Original Sixteen to One Mine, Inc. v. Fed. Mine Safety
& Health Admin., 175 F. App’x 825, 827 (9th Cir. 2006).
Applying
Addington
served
“agent”—when
damaged
this
fire
acknowledged
he
standard
as
a
that
the
supervisor—and
oversaw
valve.
here,
the
In
Addington
had
concluded
therefore
miners’
reaching
ALJ
efforts
this
never
was
to
Consol’s
repair
conclusion,
overseen
that
an
the
the
ALJ
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.
rejected
Consol’s
suggestion
J.A. 855.
that,
because
Finally, the ALJ
Addington
lacked
experience moving equipment, he was not in a position to oversee
Green
and
valve.
Saunders
To
so
as
hold,
they
the
attempted
ALJ
to
explained,
repair
would
the
damaged
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
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eyes” and learn more about moving equipment through the mine.
Appellant’s Br. at 16.
the
ALJ’s
In light of this evidence, Consol faults
“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
definition an agent within the meaning of the Mine Act.
by
Id. at
17.
We disagree.
Consol’s agent
The ALJ’s conclusion that Addington acted as
in
responding
supported by the evidence.
to
the
damaged
valves
is
amply
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)).
light,
Consol
misplaces
reliance
on
Addington’s
direct the movement of the shuttle car.
In this
authority
to
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.
Cir.
1979)
(per
Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (4th
curiam)
(upholding
MSHA
orders
attributing
knowledge of rank-and-file miner assigned to conduct pre-shift
safety examination to operator).
22
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With
provides
Filed: 11/23/2016
this
in
mind,
significant
Pg: 23 of 30
testimony
support
for
elicited
the
ALJ’s
from
the
miners
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.
Saunders
See
did
J.A.
not
686-89.
await
Similarly,
instructions
although
from
Green
Addington
and
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.
Addington
did
not
provide
Thus, Green testified that, because
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.
23
Likewise,
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Addington’s testimony that he contacted Semones to report the
damaged
valve
indicates
that
he
understood
responsible for managing the miners’ response.
that
he
was
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,
conclusions,
substantial
and
therefore
evidence
those
supports
conclusions
the
are
ALJ’s
conclusive.
Almy, 679 F.3d at 301-02.
Accordingly, because Addington was
acting
in
as
Consol’s
agent
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
comply
resulted
with
findings
“to
MSHA
from
Consol’s
regulations.
determine
if
evidence in the record.”
As
they
are
unwarrantable
noted,
we
supported
failure
review
by
to
these
substantial
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
regulations
failure
are
to
comply
determined
with
based
24
on
MSHA
the
health
and
significance
safety
of
the
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violation
and
operator.
See 30 U.S.C. § 814(d)(1).
“significant
operator’s
the
and
degree
Pg: 25 of 30
of
substantial”
“unwarrantable
negligence
or
by
the
Violations found to be
to
failure”
exhibited
have
to
resulted
comply
from
with
regulations lead to increased fines and other penalties.
an
MSHA
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
applicable MSHA regulations. 2
failure
to
comply
with
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.
In
general,
an
J.A. 844.
“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
“aggravating
2387,
conduct
2390
(1993))—that
constituting
is,
operator’s
than
more
an
ordinary
negligence,” Eagle Energy, 240 F.3d at 321-22.
The Commission
has
considered
identified
a
variety
of
factors
2
to
be
in
The 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
Filed: 11/23/2016
whether
a
failure to comply.
the
violative
Pg: 26 of 30
violation
constitutes
an
unwarrantable
These factors include: “(1) the extent of
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.”
Co.,
35
FMSHRC
3512,
3520
(Dec.
2013)
Wolf Run Mining
(citing
authorities);
Black Beauty Coal Co., 703 F.3d at 560.
After reviewing each of these factors in this case, the ALJ
concluded
failure
that
to
equipment
each
comply
violation
with
violation,
the
MSHA
ALJ
resulted
from
concluded
unwarrantable
As
regulations.
an
to
that
the
the
fire
failure
to
ensure that all shutoff valves on the main waterline could be
fully
closed
J.A. 866.
“stemmed
from
extensive
underlying
negligence.”
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.
the
ALJ
explained
that,
at
the
time
of
the
Moreover,
accident,
the
inoperable shutoff valve was obviously open, posing significant
danger
to
Addington’s
surrounding
miners.
failure
recognize
to
26
Finally,
and
the
properly
ALJ
address
cited
this
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danger—negligence, which the ALJ properly imputed to Consol, 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.
Likewise,
Id.
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,
particular
supervise
injury)
valve
Green
was
and
and
that
Addington
damaged
but
Saunders,
was
the
failed
ALJ
aware
to
found
that
more
that
this
closely
Consol
displayed an aggravated lack of due care in failing to remove
the damaged valve from service.
Consol contests these findings on two bases.
argues
that
the
ALJ’s
inoperability
was
obvious
finding
is
not
that
the
supported
First, Consol
fire
by
the
valve’s
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.
the
shutoff
valve
Consol further suggests that signs that
was
not
fully
closed
at
the
time
of
the
accident would not have been apparent in the mine setting.
Again,
however,
conclusions,
and
substantial
thus
we
may
evidence
not
set
Windsor Coal Co., 166 F.3d at 337.
ALJ
relied
on
testimony
from
supports
them
aside
the
on
ALJ’s
appeal.
As to the fire valve, the
Green
that
he
had
to
forcibly
reattach the damaged valve, as well as testimony from the MSHA
inspector
that
understand
anyone
that
it
familiar
likely
with
would
such
be
a
valve
damaged
would
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.
second
mine
The
foreman
MSHA
inspector
confirmed
leaking” soon after the accident.
28
that
likewise
the
J.A. 86.
testified
valve
was
that
a
“audibly
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Second, relying on its earlier argument that Addington did
not
serve
as
improperly
Consol’s
considered
agent,
Consol
Addington’s
suggests
knowledge
that
and
the
actions
ALJ
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’
Supra Part II.C.
ALJ’s
response
the
damaged
fire
valve.
Moreover, even absent such imputation, the
unwarrantable-failure
substantial
to
evidence.
As
findings
the
ALJ
are
supported
explained,
the
by
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.
struck
frequently
And
by
other
moving
miners
agreed
equipment.
that
valves
Similarly,
the
were
ALJ
reasonably concluded that the material on the inoperable shutoff
valve
would
have
accumulated
over
time
readily apparent upon close inspection.
and
would
have
been
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
30
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