Knox Creek Coal Corp. v. Sec'y of Labor

Decision Date21 January 2016
Docket NumberNo. 14–2313.,14–2313.
Parties KNOX CREEK COAL CORPORATION, Petitioner, v. SECRETARY OF LABOR, Mine Safety and Health Administration; Federal Mine Safety and Health Review Commission, Respondents.
CourtU.S. Court of Appeals — Fourth Circuit

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.

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.

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.

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 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 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 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 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.

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 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...

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