Wake Forest Law Review

Fourth Circuit Denies Review of Administrative Order & Civil Penalties Following a Fatal Coal Mine Accident

By Kelsey Hyde

On November 10, 2016, the Fourth Circuit published an opinion in the case of Consol Buchanan Mining Company v. Secretary of Labor.  The Fourth Circuit denied Consol’s petition for review of an order by the Federal Mine Safety and Health Review Commission, finding the appellant mining company negligent and subject to penalties for violations of mining regulations. The Fourth Circuit found the administrative law judge did not err in finding that Consol had fair notice of the dangerous conditions, which ultimately led to the avoidable death of a miner, and that Consol’s actions constituted “unwarrantable failure” to comply with the applicable mine-safety regulations.

Appellant’s Fatal Mine Accident & Subsequent Proceedings

The fatal accident that ultimately led to this action occurred on January 11, 2012, in a Virginia coal mine operated by appellant, Consol Buchanan Mining Co. (“Consol”). Consol’s mine had a six-inch main line that supplied water for various uses, including firefighting and suppressing coal dust. The line was constructed with several valves to allow water flow for such uses. At one point, the water line was above the floor of the mine, but had since been buried by the accumulation of dust and debris over several years. Because the line runs adjacent to the equipment trackways, valves were regularly struck by machinery traveling on the tracks, and Consol was aware that these valves were being hit and damaged by moving equipment. Consol had also removed certain leverage bars provided by the manufacturer to open and close the valves.

On the day of the accident, Section Foreman Gregory Addington (“Addington”) had been assigned to help oversee two other miners move a shuttle car across the mine. During this process, the crew struck a fire valve extending out from the main waterline which split the valve and sent a fountain of water shooting out into the mine. Ultimately, they were unable to fully close the valve because of the excessive debris that had accumulated, and because the proper leverage bar was unavailable. Moreover, the damage to the fire valve made it unable to bear the necessary level of water pressure. The valve was suddenly ejected, fatally striking one of the miners.

Following the accident, the Mine Safety & Health Administration (“MSHA”) conducted an investigation and eventually concluded the accident had resulted from the failed closure of the inoperable valve. MSHA then petitioned the Federal Mine Safety & Health Review Commission (“Commission”) to assess civil penalties against Consol for violating two mine safety regulations: (1) failing to remove unsafe mining machinery or equipment from service, based on reusing the damaged fire valve, in violation of 30 C.F.R. § 75.1725(a); and (2) failing to ensure all firefighting equipment was maintained in a usable and operative condition, based on making the leverage bars unavailable and unable to ensure valves could be properly closed, in violation of 30 C.F.R. § 75.1100-3. After an evidentiary hearing, an administrative law judge (“ALJ”) from MSHA found Consol in violation based on their “unwarrantable failure” to comply with the respective regulations, and imposed a civil penalty of $70,000 per violation. After an unsuccessful petition for discretionary review by the agency, the ALJ’s decision was made final and Consol petitioned the Fourth Circuit for review.

Challenges & Standards of Review on Appeal

Through this appeal, Consol challenged the MHSA order on the following three grounds: (1) Consol lacked fair notice that their acts were in violation because MSHA had not previously cited them for such infractions; (2) Addington, the foreman in the accident, was not acting as Consol’s agent and therefore negligence could not be imputed ; and (3) the ALJ erred in finding Consol demonstrated heightened negligence through their failure to comply with the mining regulations.

The Fourth Circuit reviewed the ALJ’s factual findings as they relate to these challenges under the “substantial evidence” standard, which involves assessing “relevant evidence such that a reasonable mind might accept as adequate to support the conclusion.” Almy v. Sebelius, 679 F.3d 297, 301 (4th Cir. 2012). For any legal conclusions, the Fourth Circuit operated under the de novo standard, offering deference to the agency’s interpretations of ambiguities, when necessary. After a full review of the record as a whole, the court proceeded with each of Consol’s three separate challenges under these standards of review.

Court of Appeals for the Fourth Circuit Adopts the “Reasonably Prudent Miner” Test

The court disagreed with Consol’s contention that they were not given adequate notice that their conduct would constitute a violation, and were thus deprived of due process of law when penalized for the violations. Although the court recognized parties subject to administrative sanctions are so entitled to adequate notice of what would constitute proscribed conduct, whether a party lacks such adequate notice hinges on a fact-specific analysis. To make this determination in the specific context of mining and MSHA regulations, the Fourth Circuit chose to adopt the “reasonably prudent miner” test, that both the agency and other Circuit courts have employed in related cases. The test 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.” DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3083, 3087 (Dec. 2014).  The court found this rule more conducive with Congress’s intent to place the responsibility of maintaining safety on the mine operators, as well as the practical limitations of administrative agencies enforcement power if a rule of explicit notice for all potential violations were required. Applying this objective standard to the present case, based on all evidence in the record, the court found that a reasonably prudent miner would indeed recognize that actions and ongoing conditions at Consol’s mine were in violation of MSHA regulations, certainly placing miners at risk, and, thus, Consol had fair notice that their actions could result in sanctions.

Foreman Addington was an agent of the Mine Operator

            The court also disagreed with Consol’s assertion that Addington, the foreman involved in moving the shuttle car that eventually caused the accident, was not an agent of Consol. The court instead found the Addington’s negligence was properly considered in assessing Consol’s negligence. Here, the court looked to the Mine Act, which allows a mine operator to be liable for the negligence of anyone who qualifies as an “agent”, defined as any person “charged with responsibility for the operation of all or part of a coal or other mine or the supervision of the minders in a coal or other mine.” 30 U.S.C. § 802(e). Furthermore, applications of this definition by the agency itself, as well as courts of other Circuits, have yielded a broad definition of agency, not limited to concepts of liability at common law, but instead focused on whether the miner exercised managerial or supervisory responsibilities at the time of his negligent conduct. Here, the court found the ALJ properly determined Addington was serving as a supervisor of the other miners, and therefore Consol’s “agent.” The court did consider the record as a whole, but found the testimony of other miners, referring to Addington as “the boss” and indicating they would have certainly followed his instructions at the time of this valve accident, as most dispositive of his supervisor role at the time of this negligent conduct that led to the accident. As such, the court held that there was indeed substantial evidence to support the ALJ’s conclusion that Addington was Consol’s agent. 

The ALJ Did Not Err in Finding Appellant’s Violations Were “Unwarrantable Failure” to Comply with MSHA Regulations

            Consol’s final challenge, disputing the ALJ’s finding of aggravated negligence based on their “unwarranted failure” to comply with mining regulations, was similarly denied by the Fourth Circuit. An unwarranted failure to comply with such regulations involves conduct otherwise inexcusable or not justifiable, such that the aggravating conduct amounted to more than ordinary negligence. In the initial order, the ALJ considered a variety of “aggravating factors” to determine whether the operator’s conduct was not justifiable, including: the length of time of violative condition, a high degree of danger, the obviousness of the violation, any efforts to abate violative condition, notice of violation, or notice of necessity for further efforts to reach compliance. Again, reviewing the record as a whole under the “substantial evidence” standard, the court found substantial support for the findings regarding Consol’s display of these aggravating factors, including: the extended period of time over which the violations persisted, the obviousness of the open and broken valve, the significant danger these conditions posed to miners, Consol’s knowledge of frequent instances of damage to the valves, and even a prior incident of injury involving the damaged valves. Accordingly, the court found no error in the ALJ’s finding that Consol demonstrated an aggravated lack of due care, more than ordinary negligence, in failing to remedy these dangerous conditions of which they were on notice.

Fourth Circuit Denies Petition for Review

            Upon finding no error in the ALJ’s conclusions that appellant Consol had fair notice of dangerous conditions, and that the fatal accident in question occurred based on Consol’s unwarrantable failure to comply with the applicable regulations, the Fourth Circuit denied Consol’s petition for review of the agency’s order and imposition of civil penalties.

By: Katharine Yale

Today, in Jones v. Astrue, an unpublished opinion, the Fourth Circuit affirmed an Administrative Law Judge’s decision to deny Jones’ application for insurance disability benefits.   The ALJ found that Jones’ hearing loss, knee pain, and foot problems did not render her disabled.

Substantial Evidence is the Standard of Review for the ALJ’s Denial.

In reviewing the ALJ’s conclusion, the Fourth Circuit was limited to evaluating whether the correct law was applied, and whether the ALJ’s findings were supported by substantial evidence.   Evidence is substantial when a reasonable mind might accept the relevant evidence as adequate to support the conclusion.   In the case that there is conflicting evidence, the reviewing court will defer to the ALJ’s conclusion, if the conflicting evidence would allow reasonable minds to differ.

The ALJ’s Decision to Deny Jones’ Disability Application Was Supported By Substantial Evidence.

The Fourth Circuit found that the ALJ correctly gave less weight to the opinions of Audiologist Fowler and Dr. Redmond. The two opinions were inconsistent with other substantial evidence such as Jones’ ability to perform everyday activities and communicate effectively at the hearings.

Additionally, the Fourth Circuit found that the ALJ was correct in not fully crediting Jones’ testimony regarding her impairment. Jones was able to communicate effectively at the hearing in front of the ALJ, and described her daily activities in a way that lessened the effect of her testimony regarding her impairment. This evidence supported the ALJ’s decision to give the testimony less credit.

Jones’ remaining two arguments were not raised at the district court and therefore could not be considered on appeal. The Fourth Circuit found, to the extent that Jones challenged the ALJ’s conclusion that her knee pain was not sufficiently severe, that the conclusion was supported by substantial evidence.   Even though Jones reported pain, the evidence presented showed that she pulled her knee while working out, and that the injury did not present a disabling condition.

The Fourth Circuit Affirmed the ALJ’s Decision to Deny Jones’ Application for Disability Benefits.

By Jordan Crews

Yesterday, in Dickenson-Russell Coal Company v. Secretary of Labor, the Fourth Circuit denied the plaintiff’s petition for review, holding that the plaintiff violated the Federal Mine Safety and Health Act of 1977 by failing to report a worker’s occupational injury to the Mine Safety and Health Administration (“MSHA”) within ten days after the incident occurred.

Dickenson Coal owns and operates an underground coal mine in southwest Virginia.  Bates Contracting is a temporary labor agency that supplies miners to work at this mine.  In 2009, Charlie Wood, an employee of Bates, was injured while he was working in the mine.  Although Wood was an employee of Bates, he was under the control and supervision of personnel from Dickenson on the day of his injury.  There were no Bates employees at the mine who were supervising or could have supervised Wood’s work.  Bates, rather than Dickenson, reported the injury to the MSHA.  Because Dickenson did not file a report, the MSHA issued it a citation for failure to timely report an occupational injury as required by the regulations.

Dickenson contested the citation before the Federal Mine Safety and Health Review Commission (the “Commission”).  Dickenson, while acknowledging that it was an “operator” within the meaning of the regulations, argued that Bates was also an “operator.”  Therefore, Dickenson argued that either it or Bates could have satisfied the obligation to report the injury; as such, only one of the operators, but not both, was required to report the injury.  The ALJ granted “summary decision” to the Secretary, rejecting Dickenson’s argument that Bates qualified as an “operator” within the meaning of the regulations.  The ALJ observed that although Bates might qualify as an “operator” under the statutory definition, the regulatory definition controlled the meaning of the term “operator.”  Thus, because Bates was not “operating, controlling or supervising” mining activities at the mine when Wood was injured, Bates did not meet the regulatory definition, and was therefore not obligated as an operator to “report each incident or occupational injury” within ten days.  Accordingly, the ALJ concluded that Bates’ report of the injury did not relieve Dickenson of its reporting obligations under the regulations.  Dickenson filed a petition for review.

Because the issue presented to the Fourth Circuit required review of the agency’s interpretation of its own regulation, the Court’s analysis proceeded under Auer v. Robbins, instead of Chevron.  Auer deference, like Chevron, is warranted only when the language of the regulation is ambiguous.  When the regulation in question is unambiguous, its plain meaning controls.  If, however, the regulation is ambiguous, the agency’s interpretation controls unless that interpretation is “plainly erroneous or inconsistent with the regulation.”

Dickenson contended that the ALJ incorrectly concluded that the meaning of “operator” within the regulations is controlled by the regulatory definition of “operator” rather than the statutory definition.  Building on this argument, Dickenson contended that when there is more than one “operator” who would be required under the regulations to report the same injury (as there would be if the statutory definition controlled), the regulation requires only one of the operators, not both, to report the injury.  As such, Dickenson contended that because Bates reported Wood’s injury in a timely fashion, there was no violation.

The Fourth Circuit, however, stated that Dickenson’s obligation to report the incident did not depend on whether Bates was considered an “operator.”  Even assuming Bates was an “operator,” “its filing of the . . . report did not relieve Dickenson Coal of the obligation to file its own report.”  The regulation states, in relevant part:

Each operator shall report each accident, occupational injury, or occupational illness at the mine. . . . The operator shall mail completed [MSHA Mine Accident, Injury, and Illness Report Form 7000-1s] to MSHA within ten working days after an accident or occupational injury occurs or an occupational illness is diagnosed.

The key phrases here are “each operator” and “each accident.”  The ordinary meaning of “each” is “every one of two or more people or things considered separately.”  Thus, according to the regulation’s regular and ordinary meaning, the regulation means that anyone who qualifies as an “operator” under the regulations must report every qualifying accident or injury.  According to the Court, “this language permits no exceptions; it is unconditional, and Dickenson Coal has failed to identify anything in the actual text of the regulation that suggests otherwise.”  Thus, where there are two or more operators who are subject individually to the reporting requirement . . . , every one of them must report every qualifying accident or injury.”  The Court concluded that the regulation “is unambiguous and that Auer deference is unwarranted.”

The Fourth Circuit held that the ALJ’s decision was consistent with the language in the regulations, and therefore denied Dickenson’s petition for review.