Labor & Employment – Mine Safety Record Supported Sanctions

Consol Buchanan Mining Co. LLC v. Sec’y of Labor (Lawyers Weekly No. 001-162-16, 30 pp.) (Wynn, J.) No. 15-1321, Nov. 10, 2016; On Petition for Review; 4th Cir.

Holding: Following a coal miner’s death from being struck by a water manifold propelled by mounting water pressure during a valve repair required while miners were moving a shuttle car through the mine, the 4th Circuit upholds sanctions against Consol Buchanan Mining Company by the federal mine safety agency, which determined that the accident resulted from Consol’s “unwarrantable failure” to ensure that certain mine equipment was maintained in a safe, working condition.

Safety Regulations

An administrative law judge for the Federal Mine Safety and Health Administration upheld findings that the mine had violated two safety regulations: 1) 30 C.F.R. § 75.1725(a), the Mining Equipment Rule (MER), which requires mine operators to remove unsafe mining machinery or equipment from service, for reusing a damaged fire valve after it was dislocated from the water manifold and 2)  30 C.F.R. § 75.1100-3, the Fire Equipment Rule (FER), 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. The ALJ imposed a civil penalty of $70,000 for each violation. The commission denied Consol’s petition for review, and the decision became final.

Consol petitions this court for review on three grounds, arguing that 1) the company lacked fair notice that using an inoperable shutoff valve violated the FER because MSHA had not previously cited Consol for failing to ensure that shutoff valves on the mine’s central waterline could be closed; 2) the section foreman was not responsible for supervising the two miners moving the shuttle car in their efforts to repair the damaged fire valve, and any negligence by the foreman may not be imputed to Consol; and 3) contrary to the ALJ’s ultimate finding, Consol did not demonstrate heightened negligence in failing to comply with applicable MSHA regulation.

Notice

The parties agree that, prior to the accident, MSHA never alerted Consol that the agency viewed the condition of the shutoff valves in the mine as a violation of the FER. Absent explicit prior notice, the commission employs a “reasonably prudent miner” test to determine whether the operator nonetheless had sufficient notice of the risk of civil penalties arising from a violative condition. Our sister circuits have used this objective test in considering whether MSHA regulations provide adequate notice of proscribed conduct, and we adopt this test today.

The record evidence demonstrates that a reasonably prudent miner would recognize that using inoperative shutoff valves violated MSHA regulations and placed miners at risk. Consequently, Consol had fair notice that the failure to replace defective shutoff valves raised the possibility of sanctions, and MSHA is therefore not barred from seeking civil penalties in connection with this violation.

Further, the ALJ’s conclusion that the foreman acted as Consol’s agent in responding to the damaged valves is amply supported by the evidence. Consol misplaces reliance on the foreman’s authority to direct the movement of the shuttle car. Instead, the relevant question is whether the ALJ properly held Consol responsible for the foreman’s failure to recognize the danger presented by the damaged valves and subsequent failure to respond appropriately to that danger. Because the foreman was acting as Consol’s agent in connection with the accident response, the ALJ properly imputed his knowledge and negligence in connection with the accident to Consol.

Finally, ample evidence supported the ALJ’s finding that both of the violations resulted from Consol’s unwarrantable failure to comply with MSHA regulations. As to the FER violation, the ALJ concluded the failure to ensure that all shutoff valves on the main waterline could be fully closed stemmed from extensive underlying negligence, including Consol’s long failure to maintain the valve in a clean condition and removal of the leverage bars soon after the valve was installed. The ALJ explained the present accident followed an extensive history of similar incidents in the mine, and reasonably concluded that the material on the inoperable shutoff valve would have accumulated over time and would have been readily apparent upon close inspection.

We affirm the ALJ’s findings that the challenged violations stemmed from Consol’s unwarrantable failure to comply with applicable MSHA health and safety regulations.

Petition for review denied.