Consol Buchanan Mining Co., LLC v. Secretary of Labor, 112316 FED4, 15-1321

Docket Nº:15-1321
Opinion Judge:WYNN, Circuit Judge:
Attorney:Billy Ray Shelton, JONES, WALTERS, TURNER & SHELTON PLLC, Lexington, Kentucky, for Petitioner. Cheryl C. Blair-Kijewski, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondents. Randall C. Eads, EADS & EADS, Abingdon, Virginia, for Petitioner. M. Patricia Smith, Solicitor of Labor...
Judge Panel:Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Case Date:November 23, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit




No. 15-1321

United States Court of Appeals, Fourth Circuit

November 23, 2016

Argued: September 22, 2016

Amended: November 23, 2016

On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission. (VA 2013-190)

Petition for review denied by published opinion. Judge Wynn wrote the opinion, in which Judge Wilkinson and Judge Duncan joined.


Billy Ray Shelton, JONES, WALTERS, TURNER & SHELTON PLLC, Lexington, Kentucky, for Petitioner.

Cheryl C. Blair-Kijewski, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondents.


Randall C. Eads, EADS & EADS, Abingdon, Virginia, for Petitioner.

M. Patricia Smith, Solicitor of Labor, Office of the Solicitor, Washington, D.C., Heidi W. Strassler, Associate Solicitor, Office of Civil Penalty Compliance, MSHA, W. Christian Schumann, Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondent, Secretary of Labor.

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

WYNN, Circuit Judge:

Following a fatal accident in a coal mine operated by Consol Buchanan Mining Co. ("Consol"), the Federal Mine Safety and Health Review Commission (the "Commission") determined that the accident resulted from Consol's "unwarrantable failure" to ensure that certain equipment in the mine was maintained in a safe, working condition. Seeking review by this Court, Consol argues that it lacked notice that hazardous conditions in the mine violated applicable mine safety regulations. Further, Consol asserts that the agency erred in concluding that the company demonstrated aggravated negligence in failing to rectify evident safety concerns. We disagree and therefore deny Consol's petition for review.



Consol operates a large underground coal mine in Buchanan, Virginia. On January 11, 2012, acting Shift Foreman Lynn Semones directed Section Foreman Gregory Addington and miners David Green and Joseph Saunders to move a shuttle car from one part of the mine to another. In general, foremen were not assigned to assist with such a move. Recognizing Addington's lack of experience moving equipment, however, Semones assigned Addington to oversee this particular move to "get him some experience" with the process. J.A. 656. Semones directed Addington to "[f]ollow [Green and Saunders], learn from them, [and] help them [move the car] through tight places." Id.

At the time of the accident, a six-inch water supply line ran along the mine floor immediately adjacent to the trackway on which miners moved equipment through the mine. Though originally situated above the mine floor, this waterline was effectively buried by the accumulation of years of dust and debris from the mine. As the mine's main water supply, the line supplied water for various uses throughout the mine, including firefighting and the suppression of coal dust generated through the mining process.

To enable these distinct uses, multi-outlet water manifolds were installed at regular intervals along the line. Connected to each manifold were valves, each of which could be adjusted to control the flow of water for a designated purpose. Separately, to stem the flow of water entirely, the main six-inch waterline included larger shutoff valves. These valves were arranged in a "ladder system, " such that three separate valves had to be closed to fully stop the flow of water to a particular section of the line. J.A. 40.

Due to their proximity to the trackway, machinery regularly struck the manifolds and valves extending from the main waterline as the machinery moved through the mine. Though aware 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.


Soon after the crew began to move the shuttle car, the car struck a fire valve connected to a manifold extending from the main waterline, breaking the valve in two and leaving a fountain of water shooting from the manifold. While Addington dried himself, Green and Saunders set about to stop the flow of water and repair the broken valve. To do so, Green and Saunders, along with a third miner, first sought to close the shutoff valves on the main six-inch waterline. Because Consol had removed the "leverage bars" provided by the valve manufacturer to assist in opening and closing the valves, the miners attempted to close the valve using a nearby steel bar.

As the miners worked to close the shutoff valves, Addington contacted Semones to report the accident. Semones later recounted that he directed Addington to continue moving the shuttle car to allow a second crew to repair the damaged valve. Addington testified, however, that he did not hear Semones's instruction. At any rate, rather than following this direction, Addington returned to the scene of the accident and found Green and Saunders working to reassemble the broken fire valve. Assuming the miners knew how to repair the valve, Addington watched as Green and Saunders worked to reattach the valve to the manifold.

Unfortunately, due to the accretion of debris on the main waterline, the miners were unable to fully close one of the shutoff valves. With the valve partially open, water continued to flow through the manifold as the miners attempted to reattach the broken fire valve.[1] At the same time, the dislocation of the fire valve from the manifold damaged the valve's threading such that it could no longer bear the level of water pressure it was designed to withstand. Although the miners visually inspected the threading before attempting to reattach the valve, investigators later determined that the damage to the threading was difficult to detect without magnification. Saunders was unable, however, to reattach the valve by hand and instead used a pipe wrench to attempt to tighten the valve into place.

Ultimately, the damage to the threading, coupled with the building water pressure, caused the valve to fail. As a result, the valve was suddenly ejected from the manifold, striking Saunders and fatally injuring him. A Mine Safety & Health Administration ("MSHA") investigator who arrived at the scene soon thereafter observed a fountain of water flowing from the manifold and concluded that one of the shutoff valves was not fully closed. Upon further inspection, the investigator noted that the shutoff valve remained visually and audibly (that is, making a hissing sound) open. A more extensive MSHA inquiry followed, with investigators concluding that the accident resulted from the failure to ensure that the shutoff valve was fully closed before attempting to reattach the inoperable fire valve.


Following its investigation, MSHA petitioned the Commission to assess civil penalties against Consol for violations of two mine safety regulations: (1) 30 C.F.R. § 75.1725(a) (the "Mining Equipment Rule"), which requires mine operators to remove unsafe mining machinery or equipment from service, for reusing the damaged fire valve after it was dislocated from the water manifold; and (2) 30 C.F.R. § 75.1100-3 (the "Fire Equipment Rule"), which requires all firefighting equipment to be maintained in a usable and operative condition, for failing to ensure leverage bars were available to be used to close the 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 violations stemmed from Consol's "unwarrantable failure" to comply with the identified MSHA regulations. Pursuant to Section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), the ALJ imposed a civil penalty of $70, 000 for each violation. The Commission subsequently denied Consol's petition for discretionary review, and the ALJ's decision thus became a final Commission order on March 4, 2015.

Consol now petitions this Court for review and challenges the Commission's final order on three grounds. First, the company contends that it lacked fair notice that using an inoperable shutoff valve violated the Fire Equipment Rule because MSHA had not previously cited Consol for failing to ensure that shutoff valves on the mine's central waterline could be closed. Second, asserting that Addington was not responsible for supervising Green and Saunders in their efforts to repair the damaged fire valve, Consol challenges the ALJ's conclusion that Addington served as Consol's agent, such that any negligence attributable to him may be imputed to Consol. Last, Consol contests the ALJ's ultimate finding that Consol demonstrated heightened negligence in failing to comply with applicable MSHA regulations.


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...

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