Argued: September 22, 2016
Amended: November 23, 2016
Petition for Review of an Order of the Federal Mine Safety
and Health Review Commission. (VA 2013-190)
for review denied by published opinion. Judge Wynn wrote the
opinion, in which Judge Wilkinson and Judge Duncan joined.
Ray Shelton, JONES, WALTERS, TURNER & SHELTON PLLC,
Lexington, Kentucky, for Petitioner.
C. Blair-Kijewski, UNITED STATES DEPARTMENT OF LABOR,
Arlington, Virginia, for Respondents.
Randall C. Eads, EADS & EADS, Abingdon, Virginia, for
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
WILKINSON, DUNCAN, and WYNN, Circuit Judges.
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.
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
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.
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.
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.
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.
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.
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. 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 ...