By Blake Stafford
On January 21, 2016, the Fourth Circuit issued its published opinion in Knox Creek Coal Corp. v. Secretary of Labor, denying Knox Creek Coal Corporation’s (“Knox Creek”) petition for review of a decision of the Federal Mine Safety and Health Review Commission (“Commission”). The Commission’s decision found that four uncontested violations of the Federal Mine Safety and Health Act of 1977 (“Mine Act”) by Knox Creek were “significant and substantial” under 30 U.S.C. § 814(d)(1). In denying Knox Creek’s petition for review, the Fourth Circuit held that (1) for three of the violations, the legal standard applied by the Commission was incorrect but did not affect the outcome, and (2) for the remaining violation, the Commission applied the correct legal standard.
Regulatory Background. The Mine Act contains mandatory safety and health standards for the nation’s mines, and authorizes the Mine Safety and Health Administration (“MSHA”) to make frequent inspections and investigations in mines each year. The Mine inspectors issue citations when a mandatory safety standard has been violated. A violation is designated as “significant and substantial” (“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.” 30 U.S.C. § 814(d)(1). An S&S designation increases the civil penalty amount imposed and becomes part of the operator’s permanent history for the purposes of proving a “pattern of violations.”
Factual Background. In the fall of 2009, the MSHA issued numerous citations to Knox Creek, four of which were at issue in this case: three “permissibility” violations and one “accumulation” violation. The three “permissibility” violations involved gaps between electrical equipment enclosures that exceeded .004 inches—the maximum allowed by the mine safety regulations. See 30 C.F.R. §§ 18.31(a)(6), 75.503. Wider gaps are prohibited because they increase the likelihood of internal sparking.
The MSHA inspector also issued one “accumulation” 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. The inspector found accumulations of coal dust—ranging in depth from four to twelve inches—at numerous locations on and around the conveyor belt, creating friction points and the potential for ignition and fire. The inspector observed no cleaning efforts underway at the time of these discoveries, and Knox Creek management indicated that a clean-up crew was “on the way.”
Administrative Procedural History
In reviewing the “permissibility” violations for S&S classification, the ALJ concluded that the Secretary had failed to satisfy the third prong of the four-prong Mathies test, which requires the Secretary to demonstrate a “reasonable likelihood” that the hazard “will result in an injury” to a miner. Secretary of Labor v. Mathies Coal Co. The ALJ found that the Secretary failed to establish the likelihood of a triggering internal spark that would be caused by this violation; thus, these violations were not S&S. The Secretary appealed to the Commission, arguing that the existence of the hazard itself should be assumed for this prong of the Mathies test. The Commission reversed, concluding that the ALJ failed to consider how conditions in the mines could change and erroneously required the production of quantitative evidence of malfunction frequency. While the Commission did not adopt the Secretary’s interpretation of the Mathies test, it nevertheless ruled that the “evidence compels the conclusion” that the permissibility violations were S&S.
In reviewing the accumulation violation for S&S classification, the ALJ determined that it was not S&S because, at the time of the inspection, miners were on the way to remove the accumulation; thus, there was no reasonable likelihood of ignition and fire. The Commission reversed on the basis that it was error for the ALJ to assume that intended clean-up would occur in the absence of an order that ceased coal production until such clean-up did occur. Thus, the accumulation violation was also deemed S&S.
In light of these reversals, the Commission remanded the case to the ALJ for a recalculation of penalties regarding all four violations that were now found to be S&S. The ALJ imposed revised penalties, and the Commission denied review. Knox Creek appealed to the Fourth Circuit, advancing two main challenges: (1) that the Commission erred by reversing factual findings of the ALJ that were supported by substantial evidence, and (2) that the Commission applied an incorrect legal standard for determining whether a given violation ought to be considered S&S.
Factual Findings. The Fourth Circuit first found that the Commission’s decisions did not question any of the factual findings. Rather, the reversal turned on the correction of legal errors. The errors committed by the ALJ and reversed by the Commission were (1) considering violations with only a “snapshot,” static approach, (2) requiring the Secretary for proof of a statistical frequency of a spark, and (3) considering intended—but not yet begun—measures of clean-up. The Fourth Circuit found that these errors were legal, not factual, as they were derived from the interpretation of a statutory provision and were applicable prospectively, beyond the facts of the case at hand.
Legal Standards. Next, the Court evaluated the legal standard challenges. For the permissibility violations, the legal issue was whether the Secretary must prove the likelihood of ignition to render the violations S&S. For the accumulation violations, the legal issue was whether evidence that an operator intends to abate a violation—but has not yet begun such abatement—can be considered in determining whether a violation is S&S. The Court found the statutory language in 30 U.S.C. § 814(d)(1) to be ambiguous with respect to both legal issues, finding multiple interpretations to be plausible.
When the meaning of a Mine Act provision is ambiguous, a level of deference is accorded to the Secretary (rather than the Commission), although the circuits are split in determining appropriate deference amount. The Fourth Circuit found that the Secretary’s positions, taken for the purposes of litigation, are distinguished from “legislative-type” determinations that would ordinarily receive Chevron deference because they are not binding or precedential, and did not rise out of notice-and-comment rulemaking procedures. Thus, the Fourth Circuit held that the Secretary was not entitled to Chevron deference in this case, but instead was only entitled Skidmore deference.
Under the framework of Skidmore deference, the Court proceeded to evaluate the two types of violations. For the permissibility violations, the Court found the Secretary’s interpretation—that the relevant hazard should be assumed under the third prong of the Mathies test—to be persuasive, noting the position’s consistency with Commission and appellate court precedent as well as the Mine Act’s history and purpose. The only relevant “likelihood” consideration for this prong, the Court found, is the likelihood that the hazard will result in serious injury. Thus, the Court held that, while the Commission did not adopt the above “assumption of the hazard’s existence” position, it properly determined that the permissibility violations were S&S, as the existence of the hazard was the only disputed legal issue.
For the accumulation violation, the Court also found the Secretary’s position—that requiring active abatement or an order to cease operations until abatement is completed—to be persuasive. The Court noted that intended abatement efforts do not actually reduce the risk of harm, allowing mine operators to “plan” abatement measures than they actually expect to undertake. Finally, the Court noted that the history and purpose of the Mine Act support this interpretation. The Commission had adopted the Secretary’s interpretation in determining that the accumulation violation was S&S; thus, the Court held that this determination was proper.
The Fourth Circuit held that the application of the correct legal standards compelled the determinations made by the Commission—that the violations were S&S under 30 U.S.C. § 814(d)(1). The Court thus denied the petition for review.