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Secretary of Labor v. Consolidation Coal Company

United States Court of Appeals, District of Columbia Circuit

July 10, 2018

Secretary of Labor, Mine Safety and Health Administration, Petitioner
Consolidation Coal Company and Federal Mine Safety and Health Review Commission, Respondents

          Argued May 4, 2018

         On Petition for Review of a Decision of the Federal Mine Safety & Health Review Commission

          Emily C. Toler, Attorney, Department of Labor, Office of the Solicitor, argued the cause for petitioner. With her on the briefs was Ali A. Beydoun, Counsel, Appellate Litigation.

          John T. Sullivan, Attorney, Mine Safety and Health Review Commission, entered an appearance. Billy R. Shelton argued the cause and filed the brief for respondent.

          Before: Srinivasan, Millett and Katsas, Circuit Judges.

          Millett, Circuit Judge.

         After a rock extraction caused a roof to collapse in a mining tunnel where miners sometimes work, the Federal Mine Safety and Health Administration cited the Consolidation Coal Company for excavating an excess amount of rock from the tunnel, in violation of what the company's roof plan allowed. An administrative law judge later reduced the citation fine, concluding that Consolidation Coal's breach of its roof control plan, with the resulting roof collapse, was not a "significant and substantial" safety violation. On administrative review, the Federal Mine Safety and Health Review Commission deadlocked two-to-two on the issue, leaving the administrative law judge's decision as the final agency decision. Because the administrative law judge's decision relied critically on types of evidence long foreclosed by Commission precedent, we vacate the decisions of the Commission and the administrative law judge and remand for further proceedings.


         The Federal Mine Safety and Health Act of 1977 ("Mine Act"), as amended, 30 U.S.C. § 801 et seq., authorizes the Secretary of Labor to promulgate mandatory mining safety standards, to inspect mines, and to issue citations and civil penalties for violations of those safety standards. If, in the course of issuing such a citation, an inspector finds that a violation of "any mandatory health or safety standard" 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" and resulted from an "unwarrantable failure" of the mine operator "to comply" with those standards, the inspector shall include this finding in the citation report. Id. § 814(d). Such "significant and substantial" violations can trigger enhanced penalties and, if repeated within a specified time period, can require inspectors to order an evacuation of the mining area until the operator abates the hazard. Id. § 814(d), (e); 30 C.F.R. § 100.3(a).

         The Commission has long broken the test for a "significant and substantial" violation into four parts: (1) the violation of a mandatory safety standard; (2) "a discrete safety hazard-that is, a measure of danger to safety-contributed to by the violation;" (3) "a reasonable likelihood that the hazard contributed to will result in an injury;" and (4) "a reasonable likelihood that the injury in question will be of a reasonably serious nature." Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984).[1]

         To effectuate the policies of the Mine Act, the Mine Safety and Health Administration has promulgated a number of mandatory mine safety standards. As relevant here, the Administration's rules require mine operators to ensure that the tunnels in mines have adequate roof support "where persons work or travel" in order to "protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts." 30 C.F.R. § 75.202(a). Relatedly, mine operators must submit and abide by a "roof control plan" approved by the Administration's District Manager. Id. § 75.220.


         In the early morning of July 2011, an Administration mine inspector, Gregory Ratliff, came to Buchanan Mine #1 to investigate a complaint about water leakage. While there, Ratliff noticed that a portion of the mine's roof had collapsed in a crosscut between two entry points. According to the mine's foreman, the roof had collapsed while they were cutting a piece of rock from the area, dislodging "a couple of [roof] bolts" and breaking the mining machine's conveyor chain. J.A. 113. Because the roof in this portion of the mine contained several pre-existing cracks, the mine's roof control plan limited miners to a cut of no more than 20 feet at a time. On closer inspection, Ratliff noticed that the cut of rock from this area appeared to exceed 20 feet-the maximum depth permitted under such adverse roof conditions.

         By the time Ratliff discovered the collapse, the miners were already in the process of bolting the unsupported roof down. When they finished, Ratliff measured the cut and, as suspected, found that it exceeded the permissible 20-foot depth, measuring 23.5 feet from the last row of roof bolts. Based on this evidence, Ratliff issued a citation to the Consolidation Coal Company, the mine's owner and operator, for violation of the mine's roof control plan. Because the violation "expose[d] miners to the hazards associated with roof ...

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