Knox Creek Coal Corporation v. Secretary of Labor ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2313
KNOX CREEK COAL CORPORATION,
Petitioner,
v.
SECRETARY OF LABOR, Mine Safety and Health Administration;
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,
Respondents.
On Petition for Review of a Decision of the Federal Mine Safety
and Health Review Commission. (2010-81-R)
Argued: September 16, 2015 Decided: January 21, 2016
Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition for review denied by published opinion. Judge Wynn
wrote the opinion, in which Judge Motz and Senior Judge Davis
joined.
ARGUED: Mark Evan Heath, SPILMAN THOMAS & BATTLE, PLLC,
Charleston, West Virginia, for Petitioner. Philip Edwin Mayor,
UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
Respondent. ON BRIEF: Alexander Macia, SPILMAN THOMAS & BATTLE,
PLLC, Charleston, West Virginia, for Petitioner. M. Patricia
Smith, Solicitor of Labor, Heidi W. Strassler, Associate
Solicitor, W. Christian Schumann, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
Respondent Secretary of Labor.
WYNN, Circuit Judge:
The Federal Mine Safety and Health Review Commission (the
“Commission”) determined that four uncontested violations of the
Federal Mine Safety and Health Act of 1977 (the “Mine Act”) by
Knox Creek Coal Corporation (“Knox Creek”) were “significant and
substantial” under 30 U.S.C. § 814(d)(1). Three violations were
so-called “permissibility” violations, involving inadequately
sealed enclosures of electrical equipment, and one was an
“accumulations” violation, involving the piling of coal dust on
a conveyor belt. Knox Creek argues that, with respect to each
violation type, the Commission either applied an erroneous legal
standard or improperly reweighed the Administrative Law Judge’s
(ALJ’s) evidentiary findings.
Regarding the permissibility violations, we conclude that
the Commission should have applied the legal standard advocated
by the Secretary of Labor (the “Secretary”), but that the
outcome is unaffected when the proper standard is applied.
Regarding the accumulations violation, we conclude that the
Commission applied the correct legal standard, one also endorsed
by the Secretary. And nowhere did the Commission improperly
reweigh evidence. Accordingly, we deny Knox Creek’s petition
for review.
2
I.
A.
The Mine Act was intended to address the “urgent need to
provide more effective means and measures for improving the
working conditions and practices in the Nation’s . . . mines in
order to prevent death and serious physical harm.” 30
U.S.C. § 801(c). The Act directs the Secretary to promulgate
mandatory safety and health standards for the nation’s mines.
Id. § 811(a). To ensure compliance with those standards, it
authorizes the Mine Safety and Health Administration (MSHA), as
an “[a]uthorized representative[] of the Secretary,” to “make
frequent inspections and investigations in . . . mines each
year.” Id. § 813(a); see also Speed Mining, Inc. v. Fed. Mine
Safety & Health Review Comm’n, 528 F.3d 310, 312 (4th Cir.
2008).
Mine inspectors issue citations when a mandatory safety and
health standard has been violated. 30 U.S.C. § 814(a). A
violation is designated as “significant and substantial” (or
“S&S”) when it “is of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard.” Id. § 814(d)(1). An S&S
designation increases the civil penalty amount assessed against
the mine operator, becomes part of that operator’s permanent
citation history, and can provide the basis for a “pattern of
3
violations” designation and possible withdrawal orders
prohibiting operations in the affected mines. Id. § 814(d),
(e); 30 C.F.R. § 100.3(a) (enumerating factors for the
determination of a penalty, including whether the operator has a
history of violations).
An operator may contest a citation, as well as its
designation as S&S, before the Commission. 30 U.S.C. § 815(d).
Further, a party may petition a court of appeals to review any
Commission decision by which it has been adversely affected.
Id. § 816(a)(1).
B.
The MSHA conducted a series of inspections of Knox Creek’s
Tiller No. 1 Mine (“Tiller Mine”) in October and November 2009,
issuing thirty-four citations that it deemed S&S. Of these,
only five were reviewed by the Commission and only four are at
issue here: three “permissibility” violations and one
“accumulations” violation.
The three permissibility violations involve a requirement
that a mine’s electrical equipment enclosures be “explosion-
proof,” meaning that those enclosures must be sealed, and that
any gaps between the enclosures and the surrounding air must not
4
exceed .004 inches. 30 C.F.R. §§ 18.31(a)(6), 75.503. 1 As
explained by the Secretary’s expert witness, the standard is
designed to prevent an explosion inside an enclosure from
causing an explosion outside the enclosure. An internal
explosion will not occur without an ignition source such as an
electrical arc or spark, events that do not occur when the
electrical equipment is functioning properly. However, “normal
use in the mining environment” can, for example, involve
vibrations and water seepage, which over time may damage the
electrical connections such that the potential for an ignition
can exist. J.A. 326–27.
Each of the three permissibility citations involved an
electrical mining equipment enclosure with an opening in excess
of .004 inches. In all three cases, the wires were bolted down
and wrapped in insulation and tape at the time of inspection to
decrease the likelihood of sparking. However, evidence
suggested that during the course of normal mining operations,
the bolting could come loose or the insulation could wear down,
thus making arcing and sparking more likely over time. For one
of the machines, evidence showed that some of the insulation was
1The permissible length of any gap depends on the internal
volume of the empty enclosure. Here, there is no dispute that
the relevant enclosures have more than 124 cubic inches of
internal volume, and therefore have a maximum permissible
“clearance” of .004 inches. See 30 C.F.R. § 18.31(a)(6).
5
starting to wear, and for another, evidence showed rust and
corrosion. In all three cases, the equipment was scheduled to
be used in the subsequent shift.
In reviewing these permissibility citations, the ALJ
concluded that the Secretary had failed to satisfy the third
prong of the four-part “Mathies” test, articulated by the
Commission in Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1(1984), for establishing the S&S nature of a violation. That
third prong requires the Secretary to demonstrate “a reasonable
likelihood that the hazard contributed to [by the violation]
will result in an injury” to a miner. Id. at 3–4.
Although the ALJ found that the Secretary had established a
reasonable likelihood that methane could have entered the
relevant enclosures at an explosive concentration, and that, in
the event of an ignition, an explosion could escape the
enclosures and trigger a larger explosion in the “gassy” mine
atmosphere, 2 the ALJ nevertheless concluded that Mathies’ third
prong was unsatisfied because the Secretary had “not
establish[ed] the likelihood of a triggering arc or spark”
inside the enclosures for each of the violations. S.A. 63; see
also S.A. 64, 65. In so deciding, the ALJ rejected the
2
The Tiller Mine is classified as “gassy” because it
liberates more than 500,000 cubic feet of methane during a
twenty-four-hour period, and is therefore subject to spot
inspections every ten working days. 30 U.S.C. § 813(i).
6
Secretary’s argument that when evaluating whether the “hazard”
was reasonably likely to result in injury under Mathies, the
existence of the hazard—in this case, the escape of hot gas
through an enclosure opening after an ignition caused by
internal arcing or sparking—should be assumed.
After granting the Secretary’s petition for discretionary
review, the Commission unanimously reversed the ALJ’s non-S&S
finding with respect to each of the permissibility citations.
See Sec’y of Labor v. Knox Creek Coal Corp., 36 FMSHRC 1128(2014). Although the Commission did not adopt the Secretary’s
position that the presence of arcing and sparking within the
enclosure should be assumed, it did find fault with the ALJ’s
application of Mathies’ third prong. The Commission concluded
that the ALJ had failed to consider how conditions change during
normal mining operations, id. at 1132, and had erroneously
required the Secretary to “produce quantitative evidence of the
frequency of malfunctions within these types of enclosures in
order to establish that arcing or sparking was reasonably
likely,” id. at 1133. Examining the evidence in light of this
clarified standard, the Commission ruled that the “evidence
compels the conclusion” that the permissibility citations were
S&S. Id.7
C.
In addition to the above permissibility violations, Knox
Creek contests the Secretary’s S&S designation of an
“accumulations” violation under 30 C.F.R. § 75.400, which
requires that “[c]oal dust . . . shall be cleaned up and not be
permitted to accumulate” in certain mine areas. Here, the MSHA
inspector found accumulations of coal dust ranging from four to
twelve inches in depth at numerous locations on and around a
conveyor belt, whose movement at the time of inspection was
creating friction points with the accumulations and the
consequent potential for ignition and fire. When the inspector
observed the accumulations around 7:00 a.m., there were no
visible cleaning efforts underway, but the accumulations had
been recorded in a pre-shift examination book sometime between
4:30 a.m. and 6:30 a.m., and there was evidence that miners had
been assigned to remove them. Also, a Knox Creek employee who
had accompanied the inspector called management at the time of
inspection and was told that a clean-up crew was “on the way.”
J.A. 298. Shortly thereafter, three miners arrived and removed
the accumulations, a process that took approximately forty-five
minutes.
The ALJ determined that this accumulations violation was
not S&S because at the time of inspection miners were on the way
to remove the accumulations, and therefore there was no
8
reasonable likelihood of an ignition and fire. As with the
permissibility violations, the Commission unanimously reversed
the ALJ’s non-S&S determination on the basis that it was error
to assume the likelihood of clean-up in the absence of an “order
directing that [coal] production not resume until the
accumulations were resolved and [with] no evidence that miners
had made any efforts to abate the violation during the preceding
. . . shift.” Knox Creek, 36 FMSHRC at 1140. The Commission
found that the violation was not being “actively abated” and
thus concluded that the evidence required a determination that
the accumulations violation was S&S. Id. at 1141.
D.
Having designated the permissibility violations and
accumulations violation as S&S, the Commission remanded to the
ALJ for a recalculation of penalties regarding all four
violations. Knox Creek, 36 FMSHRC at 1142. Knox Creek appealed
the Commission’s decision to this Court, but we initially
dismissed that appeal because the Commission’s remand for
redetermination of penalties rendered the agency’s decision non-
final. Order, Knox Creek Coal Corp. v. Sec’y of Labor, No. 14-
1637 (4th Cir. Sept. 5, 2014), ECF No. 25. Because the ALJ has
now imposed revised penalties, and the Commission has denied
9
Knox Creek’s petition for discretionary review, the agency’s
decision is now final and ripe for review before this Court. 3
II.
A.
Knox Creek advances two main challenges to the Commission’s
decision, applicable to both the permissibility and
accumulations violations. First, it contends that the
Commission applied an incorrect legal standard for determining
whether a given violation ought to be considered S&S. Second,
it suggests that the Commission reversed factual findings of the
ALJ that were supported by substantial evidence, thereby
exceeding its statutorily prescribed standard of review. See 30
U.S.C. § 823(d)(2)(A)(ii)(I); Donovan ex rel. Chacon v. Phelps
Dodge Corp., 709 F.2d 86, 91 (D.C. Cir. 1983) (construing
multiple provisions of § 823(d)(2)(A) to conclude that “the only
‘question’ relating to the factual findings of an ALJ that the
3
We have jurisdiction over Knox Creek’s appeal pursuant to
Section 106(a)(1) of the Mine Act. 30 U.S.C. § 816(a)(1). As
the Secretary points out, Knox Creek’s petition for review
references the Commission’s order denying discretionary review
of the ALJ’s penalty redeterminations rather than the order it
clearly disputes, i.e., the Commission’s earlier reversal of the
ALJ’s non-S&S determinations. Nevertheless, because the
Secretary “had notice of the appeal and an opportunity fully to
brief the issue,” Hartsell v. Duplex Prods., Inc., 123 F.3d 766,
771 (4th Cir. 1997), Knox Creek’s error does not prejudice the
Secretary and therefore does not preclude our jurisdiction over
the appeal.
10
Commission can consider is whether those findings are supported
by substantial evidence”). 4
We begin by disposing of Knox Creek’s second argument, that
the Commission improperly reweighed facts found by the ALJ. On
the contrary, the Commission’s decision with respect to both the
permissibility and accumulations violations did not question
even one of the ALJ’s factual findings. Rather, the
Commission’s reversal turned on the correction of legal error.
Specifically, in reviewing the finding that the
permissibility citations were not S&S, the Commission found
fault with two main aspects of the ALJ’s analysis. First, it
concluded that the ALJ erred by considering the violative
conditions only “as they existed at the time of the inspection,
[and thereby] taking a ‘snapshot’ approach to the issue of an
arc or spark within the subject enclosures.” Knox Creek, 36
FMSHRC at 1132. It noted clear Commission precedent requiring
the “consider[ation of] the violative conditions as they existed
4
Knox Creek also argues that the Secretary did not meet his
S&S burden because his expert witness did not testify as to the
“safety factor” relevant to the permissibility violations, which
would supposedly specify a “buffer” above the .004-inch opening
allowed by the regulation that would nevertheless be safe.
Petitioner’s Br. at 31-32. However, as the Secretary points
out, the ALJ expressly found that ignited gases inside the
enclosures could have escaped into the mine’s atmosphere, and
Knox Creek did not challenge that finding as being unsupported
by substantial evidence before the Commission. Knox Creek has
therefore waived that argument. 30 U.S.C. § 816(a)(1).
11
both prior to and at the time of the violation and as they would
have existed had normal mining operations continued.” Id. The
ALJ had not applied that standard. Second, the Commission
criticized the ALJ for “requiring the Secretary to prove
essentially a statistical frequency of a spark,” which it
characterized as “an unwarranted standard beyond reasonable
likelihood.” Id. at 1133.
Similarly, regarding the accumulations violation, the
Commission faulted the ALJ for considering abatement measures
that were intended, but not yet begun, as a mitigating factor in
making an S&S determination. Id. at 1140. Significantly, the
Commission did not dispute the ALJ-determined fact that “miners
had been assigned to clean the accumulations,” id., but only the
relevance of that fact to the legal conclusion that the
violation was being “actively” abated and therefore not S&S, id.
at 1141. Each of these errors, the Commission held, was
inconsistent with decades of binding Commission precedent
interpreting the third prong of Mathies, doctrine that it had
developed to construe 30 U.S.C. § 814(d)(1).
The Commission’s reasoning is analogous to that employed in
another of its decisions, reviewed in RAG Cumberland Resources
LP v. Federal Mine Safety & Health Review Commission, 272 F.3d
590 (D.C. Cir. 2001). There, the relevant question was whether,
“to constitute an ‘inspection’ [under 30 U.S.C. § 814(d)(2)],
12
inspectors must leave their vehicles and conduct a detailed
examination for non-obvious hazards,” or whether a mere
“opportunity to observe” such hazards was sufficient. Id. at
594. Without reconsidering any of the factual evidence
suggesting that inspectors had repeatedly traveled through the
relevant area, the Commission reversed on the grounds that an
“inspection” required actual inspection activity, such as might
be reflected in the operator’s inspection log. Id. at 597.
There and here, the Commission’s reversal was legal in
nature because it turned upon the clarification of a standard,
one that was derived from the interpretation of a statutory
provision and applicable prospectively, beyond the facts of the
case at hand. See id. at 596–97. In both instances, the
Commission did precisely what it is charged to do under the Mine
Act: review an ALJ decision to determine if it rested on an
“erroneous” legal conclusion or was “contrary to law or . . .
decisions of the Commission.” 30 U.S.C. § 823(d)(2)(A)(ii)(II),
(III).
B.
Because we read the Commission’s decision as adopting,
rather than reweighing, the ALJ’s factual findings, we review
those findings under a substantial evidence standard. 30 U.S.C.
§ 816(a)(1). And we review the Commission’s legal conclusions
de novo, affording deference when appropriate to the Secretary’s
13
interpretations. See Sec’y of Labor ex rel. Wamsley v. Mut.
Mining, Inc., 80 F.3d 110, 113–15 (4th Cir. 1996). Where a
Commission decision and the Secretary’s relevant interpretation
turn upon the construction of a clear statutory provision—where
Congress has “directly spoken to the precise question[s] at
issue”—then our review requires no deference, and “that is the
end of the matter.” Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842 (1984); Power Fuels, LLC v.
Fed. Mine Safety & Health Review Comm’n, 777 F.3d 214, 221 (4th
Cir. 2015). It is only where the relevant statutory provision
is unclear that we owe deference to the Secretary’s
interpretation of that provision. See Wamsley, 80 F.3d at 113–
15. As a result, to determine whether any deference is due, we
must examine whether the statute is ambiguous.
Regarding the permissibility violations, the legal issue
before us is whether the Secretary must prove that ignition is
reasonably likely to occur inside an electrical enclosure in
order to render the violations S&S under 30 U.S.C. § 814(d)(1). 5
Again, that provision authorizes the Secretary’s representative
5 The issue might also be identified in the terms
articulated in the Commission’s decision, i.e., as whether the
“reasonable likelihood” standard requires the Secretary to offer
a quantitative level of proof, and whether it ought to be
examined assuming the continuance of “normal mining operations.”
Knox Creek, 36 FMSHRC at 1131–33. Examining the vague language
contained in 30 U.S.C. § 814(d)(1), we think it is obvious that
Congress has not “directly spoken” to this issue either.
14
to designate a violation as S&S where the “violation is of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard.” 30 U.S.C. § 814(d)(1).
As the Secretary notes, the word “could” suggests no
particular degree of likelihood, but rather a mere possibility
that the violation itself might causally contribute to the
hazard. On the other hand, as Knox Creek suggests, it is hard
to conceptualize how a violation could “significantly and
substantially contribute” to a causal chain of events leading to
a hazard without satisfying some threshold level of probability,
a probability that in turn must depend on the circumstances
surrounding the violation. Thus, there are at least two
plausible interpretations regarding whether the Secretary must
establish the reasonable likelihood of an ignition to render a
permissibility violation S&S. As a result, the statute is
ambiguous. See King v. Burwell, 759 F.3d 358, 363 (4th Cir.
2014) (finding statutory language ambiguous where “subject to
multiple interpretations”), aff’d, 135 S. Ct. 2480 (2015).
Determining the appropriate characterization of the
accumulations violation involves resolving an issue even further
removed from the statute’s text. We are asked to decide whether
evidence that an operator intends to abate a violation—where
that violation is not being actively abated at the time of
15
inspection—can be considered in order to mitigate liability for
what would otherwise be an S&S violation. As far as we can
tell, even Knox Creek does not attempt to argue that the Mine
Act unambiguously provides us with an answer to this question.
In short, we have little trouble concluding that Congress has
not “directly spoken” to the issues before us today. Chevron,
467 U.S. at 842.
Where the meaning of a Mine Act provision is unclear, our
precedent directs that we afford some measure of deference to
the Secretary’s—rather than the Commission’s—interpretations.
Wamsley, 80 F.3d at 113–15. Exactly how much deference is owed
to the Secretary’s litigating positions, however, is not a
question this Court has previously had occasion to resolve. 6 Nor
is there a consensus among our fellow circuit courts that have
addressed the question. Compare N. Fork Coal Corp. v. Fed. Mine
Safety & Health Review Comm’n, 691 F.3d 735, 742 (6th Cir. 2012)
(declining to apply “full Chevron deference” to the Secretary’s
litigating positions regarding the Mine Act), with Sec’y of
Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003)
6
In both Speed Mining, 528 F.3d at 314, and Power Fuels,
777 F.3d at 221, we found that the statutory text was clear,
such that deference to the Secretary was not a necessary
component of our analysis. Finding that the statutory provision
here is ambiguous, however, we may not “simply impose [our] own
construction on the statute.” Chevron, 467 U.S. at 843.
Rather, we must determine what level of deference the
Secretary’s litigating positions are to receive.
16
(affording Chevron deference to the Secretary’s interpretations,
albeit of her own regulations).
Not every agency interpretation of an ambiguous statute is
entitled to full Chevron deference, such that the agency’s view
is upheld so long as it is reasonable. Rather, such strong
deference “is limited to circumstances where (1) Congress has
given the agency authority to make rules carrying the force of
law and (2) the agency’s interpretation is rendered in the
exercise of that authority.” A.T. Massey Coal Co. v. Holland,
472 F.3d 148, 166 (4th Cir. 2006) (citing United States v. Mead
Corp., 533 U.S. 218, 226–27 (2001)).
The Mine Act explicitly grants the Secretary of Labor the
“authority to make rules carrying the force of law,” id.;
indeed, he is directed to do so, in accordance with the notice-
and-comment rulemaking procedures of the Administrative
Procedure Act (APA). 30 U.S.C. § 811(a) (“The Secretary shall
by rule in accordance with procedures set forth in this section
and in accordance with [APA notice-and-comment rulemaking
procedures] develop, promulgate, and revise . . . improved
mandatory health or safety standards for the protection of life
and prevention of injuries in coal or other mines.”); see also 5
U.S.C. § 553 (prescribing the rules for notice-and-comment
rulemaking under the APA). Without a doubt, then, the first
element articulated in Mead is satisfied.
17
In this case, however, whether Mead’s second requirement is
satisfied presents a more challenging issue. The agency
interpretations we are asked to consider here are not the
product of the Mine Act’s express delegation of lawmaking
authority. Rather, they are positions taken by the Secretary in
the course of litigation, first before the Commission and now
before this Court. Consequently, we must determine whether the
Secretary’s relevant positions are “rendered in the exercise” of
the necessary “authority.” A.T. Massey, 472 F.3d at 166.
When an agency’s interpretation derives from notice-and-
comment rulemaking, it will almost inevitably receive Chevron
deference, since in that case, the interpretation results from
“a relatively formal administrative procedure tending to foster
the fairness and deliberation that should underlie a
pronouncement” of law. Mead, 533 U.S. at 230. However, where
an agency has interpreted a statute without aid or constraint
from APA rulemaking procedures, we must look for “other
circumstances” suggesting that Congress intended for an agency’s
reasonable interpretation to bind reviewing courts. Id. at 231.
In the past, we have generally found such circumstances to exist
only where there are “indicia of a legislative-type
determination—i.e. those of weighing conflicting policies,
considering adversarial viewpoints, [and] promulgating forward-
18
looking rules of general applicability.” A.T. Massey, 472 F.3d
at 166.
Those “legislative-type” traits do not accurately
characterize the interpretive positions the Secretary adopts in
litigation. No doubt, when the Secretary conducts inspections,
issues citations, and proposes civil penalties for violations,
he does so pursuant to an express statutory delegation of
authority, see 30 U.S.C. §§ 813, 814(a), 815(a), 820(a), and we
do not question that in carrying out that enforcement role, the
Secretary’s decisions are informed by considerations of policy
and internal consistency. Indeed, we have previously recognized
that the Secretary is the authoritative policymaking entity
under the Mine Act’s scheme. Wamsley, 80 F.3d at 113–14.
However, when the Secretary defends the issuance of a citation
before a reviewing court, he does so more as prosecutor and less
as legislator.
Two fundamental aspects of the Secretary’s litigating
positions distinguish them from the “legislative-type
determinations” to which we afford Chevron deference. First,
and most importantly, the Secretary’s litigating positions are
not binding or precedential, a factor which has been highlighted
as significant, and at times dispositive, by this Court and
others in declining to apply Chevron deference. See Mead, 533
U.S. at 233 (noting as significant that a tariff classification
19
determination’s “binding character as a ruling stops short of
third parties”); Martinez v. Holder, 740 F.3d 902, 909–10 (4th
Cir. 2014) (“When issuing a single-member, nonprecedential
opinion, the [Board of Immigration Appeals] is not exercising
its authority to make a rule carrying the force of law, and thus
the opinion is not entitled to Chevron deference.”); Precon Dev.
Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278, 290 n.10 (4th
Cir. 2011) (declining to apply Chevron deference to an
interpretation offered “in a non-binding guidance document”).
Second, unlike the rules it promulgates through the APA’s
notice-and-comment rulemaking procedures, the Secretary’s
litigating positions do not arise out of a formal procedure
intended to foster the “fairness and deliberation that should
underlie a pronouncement [of law].” Mead, 533 U.S. at 230. The
Secretary makes enforcement choices and adopts litigating
positions through an internal and discretionary process closed
to public input. See Speed Mining, 528 F.3d at 317(characterizing the Secretary’s citation decisions under the
Mine Act as “discretionary” and “therefore unreviewable”);
Didrickson v. U.S. Dep’t of Interior, 982 F.2d 1332, 1339 (9th
Cir. 1992) (“[L]itigation decisions are generally committed to
agency discretion by law . . . .”).
20
For these reasons, we conclude that the Secretary’s
litigating positions are not entitled to Chevron deference. 7
That being said, deference is still due. Keeping in mind that
“developing rules and enforcing them endow the Secretary
with . . . ‘historical familiarity and policymaking expertise,’”
Wamsley, 80 F.3d at 114 (quoting Martin, 499 U.S. at 153), the
Secretary’s position is owed deference to the extent it has the
“power to persuade,” Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944). In evaluating the Secretary’s interpretation, we will
weigh “the thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and
later pronouncements, and all [other relevant] factors.” Id.7 This determination is consistent with Martin v.
Occupational Safety & Health Review Commission, 499 U.S. 144,
152–53 (1991), which afforded deference to the Secretary’s
litigating positions interpreting the Occupational Safety and
Health Act (“OSH Act”) rather than to the Occupational Safety
and Health Review Commission’s adjudicative interpretations of
that Act. Martin indicated that we should defer to the
Secretary, but it did not specify the degree of that deference—
indeed, it did not cite Chevron. Id. Additionally, in Martin,
the Secretary’s interpretations of OSH Act regulations were at
issue, and an agency’s interpretations of its own regulations
have consistently been afforded greater deference than its
direct interpretations of the governing statute. See Auer v.
Robbins, 519 U.S. 452, 461 (1997). In Wamsley, we applied
Martin’s guidance in the context of the Mine Act, but again
nowhere specified the level of deference owed to the Secretary’s
interpretations. 80 F.3d at 114–15. Moreover, both cases were
decided prior to Mead, which outlined the contours of Chevron
deference and guides our reasoning today.
21
C.
The disputed standards relevant to both the permissibility
and accumulations violations each implicate the Commission-
developed Mathies test. First articulated more than three
decades ago, the test has since been consistently applied by the
Commission and ALJs to determine whether a violation is S&S, and
has been adopted by federal appellate courts. See, e.g.,
Peabody Midwest Mining, LLC v. Fed. Mine Safety & Health Review
Comm’n, 762 F.3d 611, 616 (7th Cir. 2014); Buck Creek Coal, Inc.
v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103
(5th Cir. 1988). It is therefore unsurprising that in light of
the statute’s ambiguity, both parties recognize the Mathies test
as authoritative in resolving the issues disputed here.
Under Mathies, to establish that a violation is S&S, the
Secretary must establish “(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is,
a measure of danger to safety—contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious nature.”
Mathies, 6 FMSHRC at 3–4 (footnote omitted). The parties’
dispute regarding both the permissibility and accumulations
22
violations implicates the proper interpretation of Mathies’
third prong.
Regarding the permissibility violations, the Secretary
argues that “the third prong of Mathies focuses on the
likelihood that the hazard to which the violation contributes
will cause injury, not on the likelihood of the hazard
occurring.” Respondents’ Br. at 27 (emphasis added).
Consequently, when analyzing this third prong, the existence of
the relevant hazard—in this case, the ignition and escape of hot
gas through an impermissibly large enclosure opening—should be
assumed.
By contrast, Knox Creek argues that the Secretary has a
burden under Mathies’ third prong “to prove it was reasonably
likely that the violations would result in a serious injury.”
Petitioner’s Br. at 28 (emphasis added). In Knox Creek’s view,
in making this probability determination, all facts surrounding
the cited violation are relevant, including the likelihood of
other causally contributing events—such as, in this case, the
likelihood of arcing and sparking. In short, the parties’
dispute is whether evidence of the likelihood of the hazard is a
necessary component of Mathies’ third prong.
Without affording the Secretary’s interpretation full
Chevron deference, we find the Secretary’s interpretation
nevertheless persuasive, being “consisten[t] with earlier . . .
23
pronouncements” and “thorough[]” in its reasoning. Skidmore,
323 U.S. at 140. The Secretary’s position that the relevant
hazard should be assumed when analyzing Mathies’ third prong is
consistent with Commission precedent. Indeed, as if to
anticipate the very argument Knox Creek makes before us here,
the Commission has previously distinguished the terms “hazard”
and “violation,” and has clarified that the relevant hazard may
be assumed when analyzing Mathies’ third prong.
In Secretary of Labor v. Musser Engineering, Inc., 32
FMSHRC 1257, 1280 (2010), the relevant violation was “the
failure to have an accurate map,” and the relevant hazard was
“the danger of breakthrough to an adjacent mine and resulting
inundation.” The mine operator argued then, as Knox Creek
argues now, that under Mathies’ third prong, there was
insufficient evidence that the violation was reasonably likely
to cause injury. Id. at 1280–81. “However,” the Commission
clarified, “that is not the test. The test under the third
element is whether there is a reasonable likelihood that the
hazard contributed to by the violation . . . will cause injury.
The Secretary need not prove a reasonable likelihood that the
violation itself will cause injury, as [the operator] argues.”
Id. at 1281 (emphasis added). In finding that the Secretary had
indeed satisfied Mathies’ third prong, the Commission went on to
assume the existence of the relevant hazard, i.e., breakthrough
24
and inundation, and to consider only “evidence regarding the
likelihood of injury as a result of the hazard,” such as the
perils of drowning, hypothermia, and suffocation. Id.Every federal appellate court to have applied Mathies has
also assumed the existence of the relevant hazard when analyzing
the test’s third prong. See Peabody Midwest, 762 F.3d at 616
(“[T]he question [presented by Mathies’ third prong] is not
whether it is likely that the hazard . . . would have occurred;
instead, the ALJ had to determine only whether, if the hazard
occurred (regardless of the likelihood), it was reasonably
likely that a reasonably serious injury would result.”); Buck
Creek, 52 F.3d at 135 (accepting as sufficient for satisfying
Mathies’ third prong the ALJ’s finding “that in the event of a
fire [i.e., the relevant hazard], smoke and gas inhalation by
miners in the area would cause a reasonably serious injury
requiring medical attention” (emphasis added)); Austin Power,
861 F.2d at 103–04 (finding Mathies’ third prong satisfied where
a workplace fall, i.e., the relevant hazard, was from a height
of thirty-six feet and so “would almost certainly result in
serious injury,” without requiring evidence that a fall itself
was likely); cf. Cumberland Coal Res., LP v. Fed. Mine Safety &
Health Review Comm’n, 717 F.3d 1020, 1025–27 (D.C. Cir. 2013)
(accepting the Secretary’s interpretation that the Mathies test
allows the decisionmaker to assume the existence of an emergency
25
when evaluating whether the violation of an emergency safety
standard is S&S).
Given the language and structure of the Mathies test taken
as a whole, this approach makes sense. In its first key opinion
interpreting the statute’s S&S provision, 30 U.S.C. § 814(d)(1),
the Commission identified two sensible considerations—
“likelihood and gravity”—that rendered a violation S&S. Sec’y
of Labor v. Nat’l Gypsum Co., 3 FMSHRC 822, 828 (1981). In
short, the Commission reasoned that a violation should be
considered S&S when it is reasonably likely to result in serious
harm. See id. The later-developed Mathies test, at its core,
also reflects a dual concern for both likelihood and gravity.
In our view, the second prong of the test, which requires the
showing of a “discrete safety hazard—that is, a measure of
danger to safety—contributed to by the violation,” Mathies, 6
FMSHRC at 3, primarily accounts for the Commission’s concern
with the likelihood that a given violation may cause harm. This
follows because, for a violation to contribute to a discrete
safety hazard, it must be at least somewhat likely to result in
harm.
By contrast, we think that Mathies’ third and fourth
prongs, which the Commission expected would “often be combined
in a single showing,” Mathies, 6 FMSHRC at 4, are primarily
concerned with gravity—the seriousness of the expected harm. To
26
the extent that the third and fourth prongs are concerned with
likelihood at all, they are concerned—by their very terms—with
the likelihood that the relevant hazard will result in serious
injury. Id. at 3–4. Requiring a showing at prong three that
the violation itself is likely to result in harm would make
prong two superfluous.
Assuming the existence of the relevant hazard at prong
three is also justified by policy considerations. Under Knox
Creek’s interpretation of Mathies, compliance with some
mandatory safety standards could preclude an S&S finding for the
violation of an entirely separate mandatory safety standard.
For instance, in this case, Knox Creek suggests that the
insulation surrounding its electrical wiring should be
considered as relevant evidence cutting against an S&S finding
with respect to each of the permissibility violations. But as
the Secretary points out, “[i]f mine operators could avoid S&S
liability—which is the primary sanction they fear under the Mine
Act—by complying with redundant safety standards, operators
could pick and choose the standards with which they wished to
comply.” Respondents’ Br. at 37. Such a policy would make such
standards “mandatory” in name only. It is therefore
unsurprising that other appellate courts have concluded that
“[b]ecause redundant safety measures have nothing to do with the
violation, they are irrelevant to the [S&S] inquiry.”
27
Cumberland Coal, 717 F.3d at 1029; see also Buck Creek, 52 F.3d
at 136.
Finally, the purpose and legislative history of the Mine
Act support the Secretary’s interpretation. The Federal Coal
Mine Health and Safety Act of 1969 (“Coal Act”), which was
incorporated in full into the Mine Act, declared that the mining
industry’s “first priority and concern . . . must be the health
and safety of its most precious resource—the miner.” Pub. L.
No. 91-173, § 2(a), 83 Stat. 742, 742–43 (codified at 30 U.S.C.
§ 801(a)). More specifically, the Coal Act tightened
permissibility requirements in light of a spate of methane
explosions, some of which may have been triggered by relatively
minor ignition sources. See S. Rep. No. 91-411, at 26–31
(1969). Additionally, the legislative history of the Mine Act
suggests that Congress did not intend for the S&S determination
to be a particularly burdensome threshold for the Secretary to
meet. See Consolidation Coal Co. v. Fed. Mine Safety & Health
Review Comm’n, 824 F.2d 1071, 1085 (D.C. Cir. 1987) (concluding
that the legislative history of the Mine Act “suggests that
Congress intended all except ‘technical violations’ of mandatory
standards to be considered significant and substantial”).
In short, we find that the Secretary’s interpretation is
persuasive and consistent with both Commission precedent and
28
legislative intent. None of Knox Creek’s arguments persuades us
otherwise.
Knox Creek attempts, for example, to paint a doomsday
picture, arguing that the Secretary’s interpretation will result
in designating every permissibility violation S&S, or that it
will result in effectively changing Mathies’ “reasonable
likelihood” of occurrence to a simple “could occur.”
Petitioner’s Reply Br. at 10. These arguments are ill-founded,
for two reasons.
First, even under the Secretary’s interpretation, the third
Mathies prong still requires evidence that the hazard is
reasonably likely to result in an injury-producing event, which
in this case means evidence that the escape of hot gas from an
enclosure will trigger an explosion in the mine atmosphere.
That evidence will not be available where the mine’s atmosphere
does not contain explosive concentrations of methane.
Second, as we discussed above, the second prong of Mathies
requires proof that the violation in question contributes to a
“discrete safety hazard,” which implicitly requires a showing
that the violation is at least somewhat likely to result in
harm. See Sec’y of Labor v. Black Beauty Coal Co., 34 FMSHRC
1733, 1741 n.12 (2012) (“[I]f the roadway here had lacked berms
for only a short distance [thereby making the hazard of a
vehicle falling off the edge less likely], or if the violation
29
had been otherwise insignificant, the trier-of-fact could have
found that the violation did not contribute to a discrete safety
hazard, and hence that the Secretary had failed in her proof
under the second element of Mathies.”), aff’d sub nom. Peabody
Midwest Mining, LLC v. Fed. Mine Safety & Health Review Comm’n,
762 F.3d 611 (7th Cir. 2014); Sec’y of Labor v. Cumberland Coal
Res., LP, 33 FMSHRC 2357, 2368 (2011) (similarly considering
evidence that the violation, under the particular circumstances,
was likely to contribute to the relevant hazard under Mathies’
second prong), aff’d sub nom. Cumberland Coal Res., LP v. Fed.
Mine Safety & Health Review Comm’n, 717 F.3d 1020 (D.C. Cir.
2013); Sec’y of Labor v. E. Associated Coal Corp., 13 FMSHRC
178, 183 (1991) (same); Utah Power & Light Co. v. Sec’y of
Labor, 12 FMSHRC 965, 970 (1990) (same).
Nonetheless, despite the numerous Commission decisions
considered above, Knox Creek argues that the Secretary’s
approach is inconsistent with Commission precedent, focusing on
two cases. In the first, Secretary of Labor v. Texasgulf Inc.,
10 FMSHRC 498, 501 (1988), the Commission required that a
permissibility violation’s S&S determination “be based on the
particular facts surrounding the violation,” which Knox Creek
argues is inconsistent with the Secretary’s method of assuming
the hazard at prong three. As the above discussion should make
clear, however, the Secretary’s approach still allows plenty of
30
room for a fact-intensive S&S analysis, both under prong two,
where the Secretary must establish that the violation
contributes to a discrete safety hazard, and within prongs three
and four, where evidence is still necessary to establish that
the hazard is reasonably likely to result in a serious injury.
Moreover, the Commission expressly distinguished this case
from Texasgulf on the grounds that, whereas the Tiller Mine was
classified as “gassy,” with high concentrations of methane in
its atmosphere, “[t]he mine in Texasgulf contained only
miniscule amounts of methane and had never had a methane
ignition or explosion.” Knox Creek, 36 FMSHRC at 1133 n.11.
When the Commission in Texasgulf required the consideration of a
“confluence of factors” in making an S&S determination, it was
specifically concerned with whether there was “a sufficient
amount of methane in the atmosphere surrounding the
impermissible gaps and ignition sources.” Texasgulf, 10 FMSHRC
at 501. Texasgulf is silent as to whether the Secretary must
present evidence that the hazard itself is reasonably likely at
prong three.
More persuasively, Knox Creek cites Secretary of Labor v.
Zeigler Coal Co., 15 FMSHRC 949, 953 (1993), which involved a
noncompliant power connection whose related hazard was “an
ignition that could result in an explosion.” The Commission
specified that in satisfying Mathies’ third prong, a “reasonable
31
likelihood of an ignition is [a] necessary precondition to the
reasonable likelihood of an injury.” Id. Zeigler Coal does
appear to support Knox Creek’s position that evidence of the
likelihood of the hazard is relevant at prong three. However,
that position is flatly contradicted by more recent Commission
precedent, Musser, 32 FMSHRC at 1281, by the unanimous voice of
federal appellate courts, see Peabody Midwest, 762 F.3d at 616;
Cumberland Coal, 717 F.3d at 1025–27; Buck Creek, 52 F.3d at
135; Austin Power, 861 F.2d at 103–04, and by the various
considerations outlined above. Accordingly, the scales still
tip decidedly in the Secretary’s favor.
In sum, we accept the Secretary’s interpretation that the
relevant hazard should be assumed when analyzing Mathies’ third
prong. This interpretation has the necessary “power to
persuade”: it is not only consistent with Commission and
appellate court precedent applying Mathies, but also well
supported by the Mine Act’s history and purpose.
Applying this legal standard to the three permissibility
citations, we have little trouble concluding that the
Commission’s S&S determinations were supported by substantial
evidence. Neither party disputes the Commission’s
characterization of the relevant hazard as the escape of ignited
gas into the mine atmosphere through the impermissibly sealed
enclosure. The dispositive question, then, is whether there was
32
substantial evidence to support the Commission’s conclusion that
this hazard was reasonably likely to cause injury. Quite
clearly, there was.
Both parties stipulated before the ALJ that the Tiller Mine
is a “gassy” mine, “liberat[ing] more than 500,000 cubic feet of
methane or other explosive gases during a 24-hour period, and
thus . . . subject to . . . 10-day spot inspections.” J.A. 316.
Consequently, the ALJ found that, with respect to the facts
surrounding each violation, an accumulation of methane at
explosive concentrations was reasonably likely, and that a
resulting explosion was reasonably likely to cause serious
injuries to miners. Knox Creek did not even argue before the
Commission that these findings were unsupported by substantial
evidence. For each of the permissibility violations, we thus
find Mathies’ third prong satisfied, and the Commission’s S&S
determinations proper.
D.
The parties’ dispute with respect to the accumulations
violation also relates to Mathies’ third prong. The Secretary
argues that “a mine operator’s intent to abate [a violation
should] not mitigate an otherwise S&S violation,” i.e., by
rendering a resultant injury not reasonably likely.
Respondents’ Br. at 52. According to the Secretary, although
S&S liability may be mitigated where a violation is being
33
actively abated, that can only be the case where the mine
operator “has ordered the relevant equipment or areas to be shut
down and has already begun active repairs.” Id. Knox Creek
counters that the Secretary’s proposed standard is inconsistent
with Texasgulf’s requirement that ALJs examine a “confluence of
factors” surrounding a violation in order to resolve Mathies’
third prong. Texasgulf, 10 FMSHRC at 501.
Once more, however, we find the Secretary’s interpretation
persuasive. For over thirty years, the Commission has held that
an S&S determination ought to be “made at the time the citation
is issued (without any assumptions as to abatement).” Sec’y of
Labor v. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (1984)
(emphasis added); see also Sec’y of Labor v. McCoy Elkhorn Coal
Corp., 36 FMSHRC 1987, 1991 (2014) (rejecting the argument that
an S&S finding was erroneous “because [the mine operator] was in
the process of cleaning the accumulations when the inspector
arrived”); Sec’y of Labor v. Gatliff Coal Co., 14 FMSHRC 1982,
1986 (1992) (finding that the ALJ erred in “inferring that the
violative condition would cease” in the course of normal mining
operations). It is true that the Commission has applied a
“confluence of factors” approach to S&S determinations.
However, this approach does not prevent the Commission from
providing further clarification as to what factors ought to be
evaluated, and how. That is all the Commission did here.
34
The Secretary’s interpretation makes sense. First, planned
but not-yet-begun abatement efforts do not actually reduce the
risk of harm to miners posed by the relevant violation, as that
risk is properly evaluated at the time of citation. That is
illustrated by the facts here, where miners were scheduled to
begin mining within thirty minutes of when the citation was
issued, but the accumulations were not actually abated until
nearly an hour later.
Second, if evidence that abatement efforts are merely
intended could mitigate an S&S determination, mine operators
might have incentives to “plan” more abatement measures than
they have the actual capacity to perform. Even assuming good-
faith intentions to abate on the part of mine operators,
however, plans are inherently less reliable than deeds, and it
is therefore reasonable for the Secretary and Commission to
discount evidence of the former. See Sec’y of Labor v. Eagle
Nest, Inc., 14 FMSHRC 1119, 1123 (1992) (rejecting the argument
that a mine operator may assume that miners will behave
cautiously in order to mitigate an S&S finding); Sec’y of Labor
v. U.S. Steel Mining Co., 6 FMSHRC 1834, 1838 n.4 (1984) (noting
the “inherent vagaries of human behavior”).
Finally, the Mine Act’s history and purpose support the
Secretary’s interpretation. As we have previously mentioned,
the statute’s chief concern is with the health and safety of the
35
miner, 30 U.S.C. § 801(a), and it is for this reason that mine
operators face strict liability for mandatory safety standard
violations under the Act. See Freeman United Coal Mining Co. v.
Fed. Mine Safety & Health Review Comm’n, 108 F.3d 358, 360 (D.C.
Cir. 1997) (citing 30 U.S.C. § 820(a)). Further, the
accumulations “standard was directed at preventing accumulations
in the first instance, not at cleaning up the materials within a
reasonable period of time after they have accumulated.” Sec’y
of Labor v. Old Ben Coal Co., 1 FMSHRC 1954, 1957 (1979)
(discussing H. Rep. 91-761 (1969) and H. Rep. 91-563 (1969)).
Discounting evidence of intended but not-yet-begun abatement
efforts when making S&S determinations is consistent with these
stringent enforcement standards, which have as their lodestar
miner health and safety.
We therefore accept the Secretary’s argument and the
Commission’s ruling that evidence of intended but not-yet-begun
abatement efforts ought not be considered when making an S&S
determination. Consequently, since no actual abatement was
underway at the time of citation, it is clear that the
Commission’s S&S determination with respect to the accumulations
violation was valid.
III.
In sum, applying the correct legal standard to the facts
surrounding the four violations at issue here compels the
36
conclusion that the Commission reached—that is, that those
violations were significant and substantial under 30 U.S.C.
§ 814(d)(1). Accordingly, we deny the petition for review.
PETITION FOR REVIEW DENIED
37