Wake Forest Law Review

By: Kristina Wilson

On Thursday, January 19, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Blankenship. The Fourth Circuit affirmed the defendant’s conviction for federal mine safety laws and regulations and held that the District Court committed no reversible error. The defendant raises four arguments on appeal.

Facts and Procedural History

The defendant owns and operates Upper Big Branch Coal Mine (“The Mine”). The Mine had received repeated citations for violations of the Mine Safety & Health Act of 1977 (the “Mine Safety Act”) and its accompanying regulations. 30 U.S.C. § 801 et seq. Many of these violations related to improper ventilation and the accumulation of combustible materials. The defendant was made aware of these violations on a daily basis through routine reports. In 2015, a jury convicted the defendant of conspiring to violate federal mine safety laws. On appeal, the defendant raised the following four contentions: i) the District Court erroneously concluded that the indictment sufficiently alleged a violation of Section 820(d); ii) the District Court improperly denied the defendant the opportunity for cross examination; iii) the District Court incorrectly instructed the jury regarding the 30 U.S.C. § 820(d); and (iv) the District Court incorrectly instructed the jury as to the state’s burden of proof.

The District Court Did Not Err in Refusing to Dismiss the Indictment

Under the Fifth and Sixth Amendments, an indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense. United States v. Perry, 757 F.3d 166, 171 (4th Cir. 2014). An indictment that sets forth the statutory language itself is usually sufficient under this standard, provided that the language sets forth all the elements of the offense without uncertainty or ambiguity. Id. The indictment in question used the language of the 30 U.S.C. § 820(d) , which provides that an operator of a mine may not willfully violate a mandatory mine health or safety standard.

The defendant argued that the indictment was insufficient because it did not cite any specific mine safety laws or regulations that he allegedly conspired to violate. The Fourth Circuit noted that although the indictment itself did not set out the specific citations, the indictment included as an attachment a thirty-page document that detailed the specific laws and regulations violated and how the defendant violated them. Thus, the Fourth Circuit dismissed the defendant’s first contention.

The District Court Did Not Deny the Defendant the Opportunity for Cross Examination

When a new matter is revealed on redirect examination, a defendant is entitled to cross examination concerning the new matter. United States v. Fleschner, 98 F.3d 155, 158 (4th Cir. 1996). A new matter is testimony that raises a subject outside the scope of direct examination or testimony that is materially diffferent from the testimony presented on direct examination. United States v. Jones, 982 F.2d 380, 384 (9th Cir. 1992).

The defendant argued that a witness’s testimony regarding a statement allegedly the defendant allegedly made, as well as made testimony regarding safety violations constituted new matters. However, even if the testimony did constitute new matters, the Fourth Circuit asserted that the District Court could only have committed harmless error. The content in the questioned testimony, according to the fourth Circuit, was sufficiently introduced and examined at various points throughout the trial. Moreover, the defendant cross examined the witness for five full days at trial, which the Fourth Circuit felt was sufficient opportunity. Therefore, the District Court’s holding that the testimony did not constitute a new matter could only have been harmless error.

The District Court Did Not Improperly Instruct the Jury

The defendant argued that the District Court improperly instructed the jury on the meaning of “willfully” in 30 U.S.C. § 820(d). The District Court gave the following four instructions regarding the definition of willfully under the statute: i) knowingly taking actions that cause a mine health or safety standard to be violated, ii) knowingly failing to take an action required to meet mandatory mine health or safety standards and knowingly allowing that omission to continue, iii)knowingly failing to take actions that are necessary to comply with mandatory mine health and safety standards, or iv) or knowingly, purposefully, and voluntarily taking action or failing to take action with reckless disregard for whether that action or failure to act will cause a mandatory safety or health standard violation.

The defendant argued that the fourth definition allowed the jury to impermissibly equate reckless disregard and willfulness. However, the Fourth Circuit noted that both “reckless disregard” and “plain indifference” can generally constitute criminal willfulness. RSM, Inc. v. Herbert, 466 F.3d 316, 320 (4th Cir. 2006). The Fourth Circuit then had to determine whether reckless disregard could constitute criminal willfulness specifically under the statute in question. To answer this question, the Fourth Circuit first examined precedent that held that a defendant violated the Mine Safety Act when intentionally or with reckless disregard disobeyed mandatory safety standards. United States v. Jones, 735 F.2d 785, 789 (4th Cir. 1984). The Fourth Circuit also examined the Mine Safety Act’s legislative intent and history and held that Congress enacted the Mine Safety Act to punish habitual offenders against a backdrop of courts construing criminal willfulness to include reckless disregard when defendants continually violate a federal law despite repeated citations. Thus, the District Court did not incorrectly define “willfulness” under the statute.

The District Court’s Use of the Two-Inference Instruction Was Not Reversible Error

The defendant finally argued that the District Court’s use of the two-inference instruction reduced the government’s burden of proof to a preponderance of the evidence. The two-inference instruction tells the jury that if the evidence permits reasonable conclusions of both guilt and innocence, the jury should favor innocence. Although the Fourth Circuit had not yet had the opportunity to evaluate the two-inference instruction, it noted that other circuits generally disapproved of the practice as failing to instruct the jury on how to find if the evidence of guilt is stronger than that of innocence, but not beyond a reasonable doubt. United States v. Khan, 821 F.2d 90, 92 (2d Cir. 1987). The Fourth Circuit agreed that this inference was problematic and prohibited its future use.

However, the Fourth Circuit did not agree that the use of the two-inference instruction was reversible error. It concluded that throughout the trial, the government’s burden was properly stated as beyond a reasonable doubt. Further, the District Court also repeatedly instructed the jury on the presumption of innocence. Therefore, the use of the two-inference instruction did not constitute reversible error.

Conclusion

The Fourth Circuit affirmed the District Court’s conviction of the defendant for health and safety violations under the Mine Safety Act.

 

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.

Facts

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.

Analysis

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.

Disposition

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.

By Chad M. Zimlich

Today, in the civil case Power Fuels, LLC v. Federal Mine Safety & Health, a published opinion, the Fourth Circuit denied a petition for review by Power Fuels, LLC (“Power Fuels”) to the Secretary of Labor’s assignment of jurisdiction over Power Fuels’ facility.

Defining What Facilities Fall under the Mine Act

The main issue before the Court was whether or not Power Fuels’ facility fell under the jurisdiction of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) as defined by the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 802(h)(1)(C), (i). The Mine Act, which covers operators of a “coal or other mine,” including facilities engaged in the “work of preparing coal,” was created by Congress in order to improve working conditions for individuals working in the coal industry. Power Fuels disputed its placement under MSHA’s jurisdiction, arguing instead that it belonged under the jurisdiction of the Occupational Safety and Health Administration (“OSHA”).

Power Fuels and the Use of Coal in Its Facility

The facts of the case were not in dispute. The facility that Power Fuels owns and operates, which is located in Wise County, Virginia, and began operations in 2011, is one that blends coal. The facility supplies coal and biomass to a power plant run by Dominion Virginia Power (“Dominion”), which, in turn, produces electricity for the Virginia Electric and Power Company. In fact, Power Fuels’ facility is located on the adjoining property to Dominion.

Power Fuels mixes an average of eight thousand tons of coal per day for Dominion, or about eighty percent of the fuel Dominion consumes. The amount and specificity of the blending that Power Fuels does is based on orders by Dominion, however, Power Fuels does not “extract, crush size, screen, or wash coal during this process.” Power Fuels then transports the blended coal across the street via truck.

The year after Power Fuels began operation, an MSHA inspector noticed trucks delivering coal to Power Fuels and notified MSHA of the coal-preparation facility. After an MSHA investigator inspected the site and the findings were reviewed by the MSHA and the Department of Labor, the Secretary determined the facility was subject to MSHA’s jurisdiction. Upon further inspections, three citations were issued for violations of MSHA standards. Power Fuels contested these citations arguing a lack of jurisdiction. In November of 2013, an administrative law judge (“ALJ”) for the Federal Mine Safety and Health Review Commission held an evidentiary hearing, and concluded that Power Fuels prepared coal under the definition of the Mine Act and that the MSHA was within its jurisdiction. After the Commission declined discretionary review, Power Fuels appealed to the Fourth Circuit.

The Mine Act’s Broad Scope Protects the Safety and Health of Individuals at All Facilities Working With Coal, Not Just Mines

The Court refuses to adopt Power Fuels’ strict interpretation of the definitions contained in the Mine Act. The definitions are seen to be broadly interpreted in order to serve Congress’ purpose and intent of the Act.

Power Fuels and the Definition of a “Coal Preparation” Facility

The Court first examined the general protections that are afforded to workers via the Occupational Safety and Health Act of 1970 (“OSH Act”). The OSH Act assures safe working conditions, but the implications of its jurisdiction are different than that of the Mine Act. However, where Congress has enacted industry-specific statutes granting an individual agency authority, such as the Mine Act, the OSH Act does not apply. The Secretary of Labor administers both Acts, but, in practice, the more specific Act displaces the general OSH Act. Additionally, the Mine Act is “comprehensive in its coverage” of individuals exposed to the hazards of mining.

After laying out the Mine Act and the Congressional intent behind it, the Court points out in the definition of “coal or other mine” the phrase “includes custom coal preparation facilities.” Coupled with this is the definition of facilities that engage in the “work of preparing the coal” including actions such as “the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine.” The Court intimates that the definition therefore receives the broadest possible interpretation, with any doubts favoring inclusion.

The Court goes on to say that Power Fuels’ contention that it does not do the work normally associated with an operator of a coal mine holds no weight. By pure definition, Power Fuels is covered by the Mine Act. Power Fuels “receives, tests, weighs, samples, mixes, blends, stores, loads, and transports coal,” all which logically lends itself to the definition of a “coal preparation” facility.

The Mine Safety and Health Administration Had Authority

The Court denies the petition for review, and rejects Power Fuels attempt to restrict the Mine Act to only “paradigmatic coal-mine operator[s.]” The Secretary of Labor’s interpretation of the Mine Act was reasonable and Congress’ intent was plain. The MSHA has authority over Power Fuels and other similarly operated facilities.