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Consol Buchanan Mining Co., LLC v. Secretary of Labor

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.

         ON BRIEF:

          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 ...

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