Secretary of Labor v. Consol Pennsylvania Coal Co.

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Consol's Bailey Mine for a missing keeper pin on a longwall shield and cracked light globes on a continuous miner. The Commission held that substantial evidence supported the judge's findings that the missing pin created a projectile hazard and the cracked globes could contribute to a methane ignition hazard. The majority also reformulated the significant and substantial analysis around whether each violation could significantly and substantially contribute to a hazard, rather than requiring proof that the hazard was reasonably likely to occur. Chair Jordan agreed with affirming both S&S designations but did not join that analysis. The Commission affirmed the decision and ordered Consol to pay penalties of $383 and $355.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 75.1725(a) and 75.503
• Outcome: Both violations, their S&S designations, and the $738 total penalty were affirmed.
• Key point: The majority focused the S&S inquiry on a violation's capacity to contribute significantly and substantially to a hazard, while the Chair concurred only in the result.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA)

v.

CONSOL
PENNSYLVANIA COAL CO. ,

Docket
No. PENN 2021-0084

BEFORE:
Jordan, Chair; Baker and Marvit, Commissioners

DECISION

BY: Baker and Marvit, Commissioners

This proceeding, which arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine
Act” or “Act”), involves two citations issued to Consol Pennsylvania Coal
Company (“Consol”) by the Secretary of Labor's Mine Safety and Health
Administration (“MSHA”). The first citation, Citation No. 9204245, alleges that
the operator committed a significant and substantial (“S&S”) contribution
violation by failing to maintain a longwall shield in safe operating condition because
a horizontal “keeper” pin in the shield was missing, in violation of the
mandatory safety standard at 30 C.F.R. § 75.1725(a). The second citation,
Citation No. 9204250, was also designated an S&S contribution violation and
concerned the operator’s failure to maintain a continuous miner in permissible
condition because four light globes on the continuous miner were cracked, in
violation of the mandatory safety standard at 30 C.F.R. § 75.503.

Consol challenged the citations in its
petition for discretionary review (“PDR”). After a hearing on the merits, a
Commission Administrative Law Judge issued a decision on June 9, 2022, affirming
the 104(d)(1) [1] findings for each
citation. 44 FMSHRC 450 (June 2022) (ALJ). The Judge affirmed the citations and
designations of gravity, and determined both violations were S&S contribution
violations. The Judge assessed a $383 penalty for Citation No. 9204245 and $355
for Citation No. 9204250. Consol filed a petition for discretionary review. The
Commission granted the petition for review.

For the reasons that follow, we affirm the
Judge’s order.

I.               

Factual and
Procedural Background

Consol owns and operates the Bailey Mine,
an underground coal mine in Greene and Washington counties, Pennsylvania. The
subject citations were issued in March 2021 as part of MSHA spot inspections. [2]

A.     Citation No.
9204245 (Pin Violation)

MSHA
Inspector Walter Young issued Citation No. 9204245 alleging that Consol failed
to maintain a longwall shield in safe operating condition. The mandatory safety
standard at 30 C.F.R. § 75.1725(a) requires that “[m]obile and stationary
machinery and equipment shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be removed from service
immediately.” The inspector designated the gravity as reasonable likelihood of
injury, the violation as S&S, and as demonstrating the operator’s low
negligence.

During his inspection, Inspector Young
discovered that a horizontal pin on company number 3 gate shield located on the
8L Longwall Working Section was missing from the clevis. [3] The purpose of a
horizontal pin is to keep the vertical pin in the proper position if it were to
break. Tr. 33. The vertical shear pin connects the relay bar to the clevis of
the longwall shield, which hooks to the pan line or pan conveyor. [4] Tr. 32; GX 3. The
vertical pin drops into a hole in the clevis and the entrance to the hole is
located between two little ears on top of the clevis. Along the longwall at
issue, there were 274 longwall shields and each shield was 1.75 meters wide. The
shield at issue exerted more than 30 tons of pressure. The inspector cited the
operator for failing to maintain a “gate shield located on [a] Longwall Working
Section in safe operating condition. The Horizontal Keeper Pin to retain the
vertical (breakaway) pin in place was missing. This condition will
permit…pieces of the vertical breakaway pin to become airborne and injur[e].” GX

1. None of the vertical pins were missing from the longwall shields during
   Inspector Young’s inspection.

The Judge credited Inspector Young’s
testimony that a pin could become a projectile and was known to create a
hazard. 44 FMSHRC at 456-57. Inspector Young testified that on almost every
shift, at least one of the longwall vertical shield pins shear or break. Tr. 47.
The operator agreed that the purpose of the vertical pin was to shear or break
to protect the shield system. Tr. 32, 142. The inspector testified that in the
absence of the horizontal pin, a vertical pin could break and become an
airborne projectile that could hit people if within eight feet of the shield. Tr.
44, 66. In addition, he testified that this hazard had been present several
times in the past and could result in serious eye or neck injury. Tr. 42-43,

51. He provided details of one incident involving a miner named Tim Farrell,
    who allegedly suffered a cut to his cheek by a piece of shear pin from a
    longwall shield. Tr. 60-61.

The
Judge affirmed the gravity, negligence, and S&S contribution designations
of the citation. Citing to the reasonably prudent miner standard the Commission
has adopted for recognizing a hazard in the unsafe operation of machinery or
equipment, the Judge concluded that the Secretary had demonstrated the presence
of a hazard due to the missing component, a horizontal keeper pin. 44 FMSHRC at
456.

Regarding the Secretary’s assertion that
the hazard was reasonably likely to occur, the Judge “found that credible
evidence exists to support that the hazard—a projectile shear pin—could occur[.]”
Id. at 457. The Judge also affirmed the citation’s negligence
designation as “a reasonably prudent person in their position should have known
about the violation condition and acted to remedy it.” Id. at 461.

With respect to the S&S determination,
the Judge applied the current iteration of the Mathies Coal Co. test and
found that the violation had occurred, satisfying the first step. Mathies
Coal Co. , 6 FMSHRC 1, 3-4 (Jan. 1984) (“ Mathies ”). Per the second
step of the Mathies test, the Judge found the violation was reasonably
likely to result in a discrete safety hazard. 44 FMSHRC at 457 . The
Judge determined that the vertical shear pin breaking and becoming a projectile
due to being unsecured by a horizontal pin was a hazard. Then, he found that
the hazard was reasonably likely to occur. Id. Despite contrary
assertions from the respondent, the Judge gave substantial weight to the
inspector’s testimony of past events. The Judge then concluded that the hazard
was likely to result in an injury, per step 3 in the Mathies analysis,
because “one or more miners would have been at risk of injury from the discrete
hazard.” 44 FMSHRC at 459-60. Finally, the Judge found that it was reasonably
likely that such an injury would be of a reasonably serious nature because “the
Secretary provided credible, undisputed testimony that the hazard could result
in lacerations or eye damage[,]” in line with the fourth step of the analysis. Id.
at 461 .

B.     Citation No.
9204250 (Globes Violation)

Inspector Young also issued Citation No.
9204250 alleging that four orange plastic protective covers (globes) over light
bulbs on the side of the continuous miner were cracked. Section 75.503 requires
that an operator “maintain in permissible condition all electric face equipment
required…to be permissible which is [used in certain areas of the mine].” 30
C.F.R. § 75.503. The purpose of permissibility requirements is to prevent an
ignition inside an enclosure from escaping to, and igniting, the general atmosphere.
Inspector Young designated the citation as reasonably likely to result in
injury, as low negligence, and as an S&S contribution violation.

The globes at issue were permissible
explosion-proof enclosures for the bulbs. Tr. 74. In the citation, the
inspector wrote that the

Continuous Miner…in [a] Working
Section…was not maintained in permissible condition. Four 120 A.C. volt area
light globes were cracked. The 2 area lights inby the side bolters contained
one or more cracks which ranged from 1.5 to 3 inches in length…The double ended
area light (2 globes) directly below the rib bolter on the operators [sic] side
were badly damaged by being covered with cardboard and had overheated. These
light globes contained numerous, large spider web…cracks going in multiple
directions, one contained a hole measuring 0.25 inches wide by 0.375 inches
long…

GX
4 at 2. The inspector also noted that the mine liberated “10,835,416 cubic feet
of methane every 24 hours.” GX 4. The methane monitor on the continuous miner was
improperly calibrated; when tested with a concentration of 2.5% methane, it
incorrectly registered the methane concentration at 1.7%. GX 5. However, the
monitor was set to turn off the power of the continuous miner at 1.5%, so under
the incorrect calibration, the power was turned off during the test. Id. (citation
No. 9204251).

The inspector testified that moisture,
erosion, vibration from the continuous miner, or simply age could cause a light
fixture within a globe to fail, which could lead to an ignition within the
enclosure. Tr. 75. The inspector did not know the type of bulb used in the
globes. Tr. 87. The operator’s witness asserted that most mining machines used
LED bulbs. Tr. 163. In its post-hearing brief, the operator asserted that all
four lightbulbs inside the cracked globes were LED. Resp’t Post-Hearing Br. at

15. The operator provided a photograph taken after the inspection depicting an
    LED bulb. Tr. 174, R-7 at Consol 0041. The operator’s witness testified that
    LED bulbs are far more efficient than other types of bulbs because they
    “produce less heat.” Tr. 160-61. The operator asserted that the bulbs did not
    need to be replaced to abate the citation. According to the operator’s witness,
    LED bulbs are more efficient and “nearly intrinsically safe.” However, the
    operator conceded that the light fixtures frequently fail and a hole in the
    globe might allow ignition. Tr. 174-76. The Secretary did not address the
    operator’s assertion that LED bulbs do not create enough energy to ignite
    methane.

The Judge affirmed the gravity, likelihood,
and S&S contribution designations of the citation. The Judge found that the
potential ignition of the general mine atmosphere outside the four cracked
globes on the continuous miner constituted the hazard. The Judge further found
that a light fixture failure must be “assumed to be able to ignite methane that
naturally enters the enclosure.” 44 FMSHRC at 465. The Judge also found that
LED bulbs could still provide a potential source of ignition and that there was
no evidence that the LED bulbs were being used at the time of the inspection,
rejecting the photographic evidence of the bulbs taken after the inspection
that the operator submitted. Id . The Judge found that it was reasonably
likely that the ignition within the globes would escape into and ignite the
general mine atmosphere outside the globe, finding that the mine was gassy and
represented a “constant threat[.]” Id. at 466.

II.

Disposition

For the pin violation, Consol challenges
the Judge’s finding of a violation and the Judge’s negligence, gravity
findings, and S&S contribution findings. The operator challenges the
Judge’s finding that the violation was reasonably likely to result in a
projectile hazard and that the projectile hazard was reasonably likely to
result in injury to miners. For the globes violation, the operator does not
dispute the finding of a violation or negligence finding, but does challenge
the gravity and S&S contribution findings. The operator particularly challenges
the finding that the violation was reasonably likely to result in an ignition
hazard.

For the reasons discussed below, we affirm
the Judge’s findings. Due to an extensive discussion and review of the history
of section 104(d)(1) and the original statutory purpose of the S&S
designation, we address the Judge’s S&S findings separately, after
addressing all other relevant findings.

A.     Standard of Review

The Commission is bound by the Mine Act to
apply the substantial evidence test when reviewing an administrative law judge’s
factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The substantial
evidence test is highly deferential. See Cumberland Coal Res. v. FMSHRC ,
717 F.3d 1020, 1028 (D.C. Cir. 2013). “Substantial evidence” means “such
relevant evidence as a reasonable mind might accept as adequate to support [the
judge’s] conclusion.’ Rochester & Pittsburgh Coal Co. , 11 FMSHRC
2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB , 305
U.S. 197, 229 (1938)). The Commission must “consider anything in the record
that ‘fairly detracts’ from the weight of the evidence that supports a
challenged finding.” Spartan Mining Co., Inc. , 30 FMSHRC 699, 710 (Aug.
2008) (quoting Midwest Material Co. , 19 FMSHRC 30, 34 n.5 (Jan. 1997)). However,
the possibility of “two inconsistent conclusions” to be drawn from evidence
does not prevent a conclusion that a finding is supported by substantial
evidence. Sec’y of Labor on behalf of Wamsley v. Mutual Min., Inc. , 80
F.3d 110, 113 (4th Cir. 1996). The Commission applies a de novo review standard
for legal issues. See, e.g. , James M. Ray, employed by Leo Journagan
Constr . Co., Inc . , 20 FMSHRC 1014, 1022 (Sept. 1998).

B.    
Citation
No. 9204245
(Pin Violation)

1. Violation

As discussed above, Citation No. 9204245
was issued for a missing horizontal pin on a longwall shield, which could
allegedly result in an unsecured vertical pin becoming a projectile hazard. The
Judge found a violation of section 75.1725(a). The operator has appealed the
finding on the grounds that it was unlikely that the pin would become a
projectile hazard and that the inspector’s testimony was not credible.

Substantial evidence supports the Judge’s
finding of a violation of section 75.1725(a). The longwall shield was a piece
of equipment that was not maintained in safe operating condition and that was
not removed from service immediately. In affirming the violation, the Judge
found that the circumstances of the pin violation were “sufficiently similar”
to recent decisions involving broken or missing components and that the
component, in this case the horizontal pin, was indeed missing. 44 FMSHRC at

456. Furthermore, he credited testimony from the inspector that this condition
     posed a hazard to miners and was therefore unsafe. Id. at 456-57, 461. We
     agree with the Judge.

The operator argued that “even with a missing horizontal pin, vertical shear pins,
more often than not, remain in place” and “when vertical shear pins break, the
bottom and center pieces typically fall out of the hole onto the ground, while
the top piece remains in the hole and does not fly out as a projectile.” PDR at

13. That is, the operator alleged that the condition was not unsafe.

We disagree. Consol did not dispute that
the horizontal pin was missing. The violation concerns whether the missing
component poses a hazard rather than the likelihood of a danger occurring. See
Alabama By-products Corp. , 4 FMSHRC 2128, 2131 (Dec. 1982) (noting that in
the context of a section 75.1725 violation that “whether an unsafe condition
existed” is a separate question from the gravity of the violation, and that “upon
observing the defective equipment at issue, it was not necessary for the
inspector to wait until the feared hazard fully materialized before directing
remedial action”). Furthermore, the Commission’s test for whether machinery or
equipment violates section 75.1725(a) is “whether a reasonably prudent person
familiar with the factual circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining industry, would recognize
a hazard warranting corrective action within the purview of the applicable
regulation.” Id. , 4 FMSHRC at 2129. The Judge credited the inspector’s
testimony that, in his experience, this condition could pose a hazard to
miners. 44 FMSHRC at 456-57, 459. A judge’s credibility determination is
“entitled to great weight and may not be overturned lightly.” Black Beauty
Coal Co. , 34 FMSHRC 1733, 1739 (Aug. 2012) (citations omitted); see also ,
In re: Contests of Respirable Dust Sample Alteration Citations , 17
FMSHRC 1819, 1878 (Nov. 1995), citing Ona Corp. v. NLRB , 729 F.2d 713, 719
(11th Cir. 1984) (“Since the ALJ has an opportunity to hear
the testimony and view the witnesses he is ordinarily in the best
position to make a credibility determination.”). The Judge’s determination in
the instant case is supported by substantial evidence.

The operator characterized the inspector’s
testimony as “self-serving” and “uncorroborated.” PDR at 14-15. Again, we must
disagree. As noted, the (Commission assigns great weight to a judge’s decision
to credit the testimony of a witness and it cannot be overturned lightly. See
Farmer v. Island Creek Coal Co. , 14 FMSHRC 1537, 1541 (Sept. 1992). The
Commission reviews a judge’s credibility determinations under an abuse of
discretion standard and there must be “compelling reasons” to take the
“extraordinary step” of reversing a judge’s determination. KenAmerican Res.,
Inc. , 42 FMSHRC 1, 3 (Jan. 2020) (citations omitted).
We have further stated that is “reasonable for [a] Judge to rely on [an]
experienced inspector’s testimony.” Consol Penn Coal Co., LLC , 43 FMSHRC
145, 151 (Apr. 2021).

Inspector Young testified to two instances
where a miner was injured by a vertical projectile, and other instances where a
pin became a projectile but miners were not injured. Tr. 42-43, 60-61. The
Judge credited the inspector’s testimony and found that the “Secretary has
presented credible evidence that the shear pins, which are designed to break,
have been projected from the clevis upon breaking. The [MSHA] inspector noted
one known injury where he was present and multiple reports from other miners of
the hazard occurring without causing injury.” 44 FMSHRC at 456. The Judge was
within his rights to rely on that testimony and the operator provided no basis
for us to overturn that determination.

We conclude that the missing horizontal
pin presented a safety hazard and it was reasonable for the Judge to rely on an
experienced inspector’s testimony. [5]

2. Negligence

Inspector Young determined that the
operator’s degree of negligence was low and the Judge affirmed. The Commission
has recognized that “[e]ach mandatory standard . . . carries with it an
accompanying duty of care to avoid violations of the standard, and an operator’s
failure to meet the appropriate duty can lead to a finding of negligence if a
violation of the standard occurs.” Newton Energy, Inc. , 38 FMSHRC 2033,
2047 (Aug. 2016) (quoting A.H. Smith Stone Co. , 5 FMSHRC 13, 15 (Jan.
1983)). The Commission also uses the reasonably prudent person test to
determine whether an operator met its duty of care. Id. (citations
omitted); see also Spartan Mining Co. , 30 FMSHRC at 708
(considering negligence inquiry to be circumscribed by scope of duties imposed
by regulation violated).

In the instant case, the Judge concluded
that the operator “must work to continually . . . maintain the machinery in a
safe operating condition,” and a reasonably prudent person in the operator’s
position “should have known about the violative condition.” 44 FMSHRC at 461. The
Judge noted “that these pins consistently break, and that the condition could
have occurred between the last inspection and the violation.” Id . The
operator argued that no one knew about the pin therefore negligence was not
demonstrated. Br. at 30. The Judge did not explain how a person would have
known about the violative condition. The inspector testified that “the
[violative] condition could have occurred after the [fore]man did his pre-shift
or even after the foreman walked by.” Tr. 46.

However, we disagree with the operator’s
implication that negligence requires actual knowledge. The Commission has
recognized that “an operator is negligent if it fails to meet the requisite
standard of care—a standard of care that is high under the Mine Act.” The
American Coal Co. , 38 FMSHRC 2062, 2083 (Aug. 2016). The Commission has
also “long recognized that mine management should be held to an even higher
standard of care . . . . The Mine Act places primary responsibility for
maintaining safe and healthful working conditions in mines on operators, with
the assistance of their miners.” Newton Energy, Inc. , 38 FMSHRC at 2047
(citing 30 U.S.C. § 801(e)). As the inspector testified, the horizontal keeper
pin in the No. 3 gate shield was missing and miners are directed to replace
pins wherever they are missing. Tr. 55, 61; see also The Ohio County Coal Co. ,
40 FMSHRC 1096, 1099 (Aug. 2018) (approving modification to low negligence for
failure to fix equipment defect). Substantial evidence supports the Judge’s
finding of violation and that the operator should have known about the missing
pin. We therefore affirm the Judge’s holding that the operator’s violation was of
low negligence.

3. Gravity

Inspector Young designated the citation as
reasonably likely to result in injury and the Judge affirmed. 44 FMSHRC at 457.
The operator appeals.

Consol
again takes issue with the Judge’s credibility findings and contends that
“there would have to be unusual and adverse conditions at the cited shield to
cause the vertical pin to work loose and break and that there was no evidence
of adverse conditions at the time of the inspection or projected future mining.”
Br. 24-25. The operator also argues that there were no miners near the shields
during the inspection that found a component to be missing in the machinery. Id.
at 27-28. The Judge credited the MSHA inspector’s testimony that the vertical
pin could become a projectile and cause “injuries such as lacerations or eye
injuries.” 44 FMSHRC at 454.

The inspector testified that a
miner would need to be within eight feet of the shield to be struck with a
projectile vertical pin. Tr. 66. However, the operator alleges that miners
would rarely be within eight feet of the shield because they would follow the
operator’s “required practice [policy] of . . . being at least two shields
away.” PDR at 19; see also Tr. 115-16. The operator also alleges that
“there was no . . . evidence of any injury ever occurring from the vertical
pins breaking, becoming airborne, [and] hitting . . miners.” PDR at 20.

The operator
asserts that being two shields away means that miners must be eleven feet away
from the shields. PDR at 19. The Judge noted that “[a]ll witnesses . . .
testified that miners at this mine generally operate shields . . . from two
shields away at a distance of seven-to-eleven feet.” 44 FMSHRC at 460. Therefore,
the operator and Judge disagree as to the distance between a miner and a shield
if the miner was “two shields away”—the operator claims such distance would be
eleven feet, out of the eight foot range of a projectile pin, while the Judge
found such distance would be seven to eleven feet, potentially within the range
of the projectile pin.   

One of the operator’s witnesses testified
that if a miner was “two shields away,” he would be seven to ten feet from the
shield, potentially within the range of the projectile pin. Tr. 116 (Q: “And approximately
how far would you be from the shield that you're moving if you’re two shields
away?” A: “That would be roughly seven to ten feet.”). This testimony by the
operator’s own witness constitutes substantial evidence supporting the Judge’s
determination that a miner would be within the eight feet range of the
projectile hazard. [6]

Assuming miners always follow company
policy and exercise appropriate caution is contrary to Commission precedent. The
Commission has noted that “[w]hile miners should, of course, work cautiously,
that admonition does not lessen the responsibility of operators . . . to
prevent unsafe working conditions.” Consol Pennsylvania Coal Co. , 39
FMSHRC 1893, 1900 (Oct. 2017) (quotation omitted). Similarly, the Commission
has “emphasized that . . . the vagaries of human conduct cannot be
ignored.” Id. at 1901 n.17. Therefore, under continued mining
operations, miners may not always exercise caution or follow policy.

The Commission has
held that the “focus of the seriousness of the violation is . . . on the effect
of the hazard if it occurs.” Consolidation Coal Co. , 18 FMSHRC
1541, 1550 (Sept. 1996). While the Judge did not explain the inconsistency in
his description of the appropriate analysis, [7] he credited the
inspector’s testimony regarding instances of injuries due to pins becoming
projectiles upon breaking. 44 FMSHRC at 456-57. As we have said, this
determination is afforded substantial weight. Therefore, the Judge’s finding of
gravity is affirmed .

C.    
Citation
No. 9204250 (Globes Violation)

1. Gravity

Inspector Young designated the globes
violation as reasonably likely to result in injury. The Judge affirmed this designation,.
 finding that “credible evidence exists to support the potential ignition in a
light fixture penetrating a compromised globe.” 44FMSHRC at 464. The operator
now appeals. [8]

Citing Knox Creek Coal Corp. , 36
FMSHRC 1128, 1131 (May 2014), the Judge noted in his analysis of the violation that
“[p]ermissibility requirements ‘ensure that ignitions occurring within
enclosures on mining equipment which contain electrical circuits will not
escape into the mine atmosphere.’” 44 FMSHRC at 463. The Judge then analyzed
the likelihood of an explosion as part of step 2 of the Mathies Coal Co. ,
6 FMSHRC 1, 3-4 (Jan. 1984) test. 44 FMSHRC at 465.

The Judge credited the inspector’s
testimony that one could not predict when an electrical circuit will fail as a
result of “moisture, erosion, vibration, or just age.” 44 FMSHRC at 465. The
Judge rejected the operator’s arguments that “there would have to be a failure in
the light fixture on the nonprotected side of the light’s ballast [to cause an
ignition],” “that there was no evidence of electrical issues with lights,” and
“that the LED lights allegedly present are nearly intrinsically safe.” Id .
The Judge found that these arguments rested on incorrect assumptions that a
light fixture could not ignite methane and that continued normal mining
operations did not exist, and on an unproven assertion that LED lights were
“nearly intrinsically safe.” Id. The Judge further found that “nothing
in the record prov[ed] that LED bulbs were in fact present at the time of the
citation.” Id.

As to an ignition within the globes
escaping to, and igniting, the general mine atmosphere, the Judge assumed “a
constant threat of explosive methane in a gassy mine,” finding, in relevant
part, that the mine was “gassy” and liberated more than ten million cubic feet
of methane every 24 hours. Id . at 466. The Judge also noted that the
methane monitor was improperly calibrated. Id . at 467; see Tr.
78, 123; GX-5. In relevant part, the Commission has concluded that a finding
that a “mine liberated more than one million cubic feet of methane in a twenty-four-hour
period, and [that] there had been a methane ignition . . . in the year
preceding the hearing” might be sufficient to uphold an S&S designation. Knox
Creek, 36 FMSHRC . at 1136 (citing U.S. Steel Mining Co., Inc. ,
8 FMSHRC 1284 (Sept. 1986)). We note also that this level of methane led to the
mine being on a 5-day spot inspection cycle and, in fact, Inspector Young was
at the mine to conduct a spot inspection at the time this citation was issued. Tr.
71; see 30 U.S.C. § 813(i).

Here, the mine liberated much more
than one million cubic feet of methane in a twenty-four-hour period. Therefore,
assuming continued mining operations, it is reasonably likely that a sufficient
amount of methane for an atmospheric ignition would exist in the future. Similarly,
assuming continued mining operations, the methane monitor, which was improperly
calibrated at the time of the MSHA inspection, would be reasonably likely to be
improperly calibrated in the future, and thus fail to accurately detect the
level of methane in the atmosphere. Accordingly, the Judge’s finding that “credible
evidence exists to support the potential ignition in a light fixture
penetrating a compromised globe” is supported by substantial evidence. 44
FMSHRC at 464.

Assuming a light fixture failure,
such a circuit failure must produce sufficient energy for an ignition. The
operator’s witness testified that “most of the [operator’s] mining machines use
LED bulbs.” Tr. 163. In contrast, the MSHA inspector testified that he did not
know the specific type of bulbs in the light fixtures in the defective globes
(“I don’t know if it was LED or not”). Tr. 87. Moreover, the operator provided
a photograph, taken some time after the MSHA inspection, depicting a globe with
LED bulbs on the machine at issue. Tr. 166, 174; R-7 at Consol 0041. Relatedly,
the operator claims that “no lights were replaced to abate the [c]itation,” implying
that the same bulbs present during the MSHA inspection were represented in the
photograph taken afterwards. Br. at 33.

The
Judge made a finding that “there [was] nothing in the record [to
demonstrate] that LED bulbs were in fact present at the time of the citation.” 44 FMSHRC at 465. A “determination as to the
substantiality of evidence supporting a challenged finding ‘must take into
account whatever in the record fairly detracts from its weight.’” Consol
Pennsylvania Coal Co., LLC, 44 FMSHRC 37, 43 (Feb. 2022) (quoting Universal
Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951)). The operator in its PDR
states that “photographs depicting [the continuous mining machine at issue]
taken when the machine was removed from underground showed LED lights present.”
PDR at 24; see R-7 at Consol 0038-0041. However, given that the photograph was taken some time “after the globes had
been replaced,” the Judge found that the photograph might represent different
bulbs from those present during the MSHA inspection. 44 FMSHRC at 465; Tr. 174. 

The
Judge did not address testimony that most of the operator’s mining machines use
LED bulbs, or the contention that the bulbs in the defective globes did not
need to be replaced to abate the citation. However, 30 C.F.R. § 18.2
defines the phrase “intrinsically safe” as “incapable of releasing enough
electrical or thermal energy under normal or abnormal conditions to cause
ignition of a flammable mixture of methane or natural gas and air of the most
easily ignitable composition.” This definition is consistent with testimony
during the hearing defining “intrinsically safe” as “the point where you can
guarantee [the] methane air mixture will not ignite.” Tr. 172. Therefore, if a
bulb inside a globe is intrinsically safe, it is virtually impossible for a
failure in the circuit to result in an ignition inside the globe, even assuming
an explosive level of methane inside the globe.

In contrast, the operator characterizes
the LED bulbs it alleged to be in the continuous miner globes as “nearly
intrinsically safe.” See PDR at 11. There is no definition in the Mine
Act or its related regulations for a “nearly intrinsically safe” piece of
equipment. The operator provides no quantum for measuring “nearly intrinsically
safe” equipment or a legal framework for considering it. Therefore, we find
that operator’s characterization irrelevant. And, for these reasons, we affirm
the Judge’s gravity determination.

D.    
Significant
and Substantial Contribution

On appeal, the operator explicitly argues
that the Judge’s decision to uphold the S&S designations for both citations
was erroneous, contrary to law, and not supported by substantial evidence. PDR
at 17, 21; see 30 U.S.C. § 823(d)(2)(A)(ii). It takes issue with the Judge’s
holding that “[the] inspector’s conclusion that a possible injury is of a reasonably
serious nature is sufficient for Mathies Step 4 (ALJ 11).” PDR at 9. The
operator argues that the Judge ignored evidence that miners would not be struck
with “force substantial enough and in an area reasonably likely to result in
injury.” Id. Furthermore, it argues that the Judge erred in applying the
second step of Mathies by ignoring “unusual and adverse conditions at
the cited shield to cause the vertical pin to work loose and break.” Id.
at 18.

The Commission has reviewed issues on
appeal because they are implicitly raised below or so intertwined with matters
before the judge that they may be considered. [9] See Oak Grove Resources, LLC ,
33 FMSHRC 2657, 2664 (Nov. 2011) (citing San Juan Coal Co. , 29 FMSHRC
125, 130 (Mar. 2007), Freeman United Coal Mining Co. , 6 FMSHRC 1577,
1580 (July 1984)) . In the instant case, reviewing the Judge’s S&S analysis—especially
with respect to the issue of likelihood, which goes to the heart of the
appropriateness of the statutory interpretation contained in Peabody— requires
us to determine whether the Commission’s Newtown/Peabody reformulation
of the Mathies test comports with the language of the Mine Act. [10]

We recognize that the following discussion
on Mathies , Newtown , and Peabody might be more than a bit
confusing. As will be demonstrated herein, the confusion goes to the very heart
of the Commission’s longstanding and shifting jurisprudence regarding section
104(d)(1) of the Act. The Commission’s changes to the S&S analysis have created
significant confusion among judges, MSHA, and the mining industry, and have
created a test that is barely connected to the original text of the Mine Act. The
Mine Act is the Commission’s lodestar and, where our jurisprudence has become
contrary or inconsistent with the Act, it is incumbent upon us to return to the
language of the Act and Congress’s intent in drafting it.

The Mine Act categorizes violations of
mandatory safety standards on a gradient of increasing severity, from normal section
104(a) citations, to S&S citations, to unwarrantable failure and withdrawal
orders. 30
U.S.C. § 814(d) ;
see Emery Mining Corp , 9 FMSHRC 1997, 2000 (Dec. 1987) (citations
omitted). The Commission has previously explained in detail the Mine Act’s gradual
enforcement scheme for violative conditions:

As an incentive for operator compliance,
the Act’s enforcement scheme provides for increasingly severe sanctions for
increasingly serious violations or operator behavior. Sections 104(a) and
110(a) provide that the violation of any mandatory standard requires the
issuance of a citation and assessment of a monetary civil penalty. Under
sections 104(b) and 110(b), if the operator does not correct the violation
within the prescribed period, the more severe sanction of a withdrawal order is
required, and a greater civil penalty is assessed. 30 U.S.C. §§ 814(b) and
820(b). Under section 104(d), if an inspector finds a violation and also finds
that the violation is of a significant and substantial nature and has resulted
from the operator’s unwarrantable failure to comply with the standard, a
citation noting those findings is issued. This “section 104(d) citation”
carries enforcement consequences potentially more severe than section 104(b)
sanctions. If further unwarrantable failure violations occur within 90 days of
the citation issued under section 104(d), unwarrantable failure withdrawal
orders are triggered. Issuance of the withdrawal orders does not cease until an
inspection of the mine discloses no unwarrantable failure violation.

Nacco
Mining Co. ,
9 FMSHRC 1541, 1545 (Sept. 1987) (citations and quotation marks omitted).

The “significant and substantial
contribution” designation contained in section 104(d)(1) [11] represents an
initial step on the ladder of progressive enforcement, beyond issuing a
citation for a simple violation of a safety standard. An S&S contribution
designation generally increases the civil penalty proposed for the violation,
and can provide the basis for a “pattern of violations” designation and
possible future withdrawal orders. [12] 30 U.S.C. §
814(e); 30 C.F.R. § 100.3. The failure to abate the violative condition cited
in any citation can also result in a withdrawal order and enhanced civil
penalties. 30 U.S.C. §§ 814(b), 820(b).

S ection 104(d)(1) also provides that within
90 days after the issuance of an S&S contribution citation, if an
inspector finds another violation of any mandatory safety standard and finds
such violation to be also caused by an unwarrantable failure to comply, he
shall issue a withdrawal order causing miners to be withdrawn from the area
until the inspector determines such violation has been abated. 30 U.S.C. §
814(d)(1). The Mine Act provides additional sanctions to compel compliance for
more egregious or imminently dangerous hazards. 30 U.S.C. § 820(b)(2) (defining
a “flagrant” violation as “a reckless or repeated failure to make reasonable
efforts to eliminate a known violation of a mandatory health or safety standard
that substantially and proximately caused, or reasonably could have been
expected to cause, death or serious bodily injury”); 30 U.S.C §§ 817(a) 802(j)
(providing an inspector the authority to issue a withdrawal order when he
observes an imminent danger, i.e., “the existence of any condition or practice
in a coal or other mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can be abated”)
(emphasis added). 

When Congress passed the Federal Mine
Safety and Health Act in 1977 and enacted section 104(d)(1), it did so in order
to highlight the way in which a violation would contribute to the risk
of a hazard. 30 U.S.C § 814(d)(1). While the Commission, MSHA, and the industry
have traditionally referred to this requirement by the shorthand of “S&S,”
this shorthand may misconstrue Congress’s intent and the statutory language
itself. Below, we review Commission precedent on section 104(d)(1), the
statutory language, and legislative history, and conclude that Congress
intended the Commission to apply the S&S designation to violations where
the violation “could significantly and substantially contribute” to the risk of
a mine safety or health hazard.

We turn next to the ways in which the
language now contained in section 104(d)(1) has been interpreted by the
Commission through the years to reach the recent and problematic Peabody/Newtown
formulation.

1. The Commission’s
   Erroneous Peabody Significant and Substantial Test

Below we review the history of section
104(d)(1), the evolution of the language that it contains starting with its
appearance in 1966, and the Commission’s various iterations of its practical
implementation starting with the 1984 Mathies test and culminating in
the current Peabody test from 2020. This overview leads us to conclude
that over forty years of tinkering has resulted in an awkward and cumbersome
standard divorced from the statutory text and the reality of how MSHA
inspectors, acting as the Secretary’s representatives per the statute, analyze
S&S in practice. The Peabody test runs afoul of the statutory text
and Congress’s desire to enact an enhanced penalty for violations that contribute
to a risk of hazard. Congress never intended the language in section 104(d)(1)
to be an abstract and contested bar to enhanced enforcement. Instead, as the
Senate and House Reports demonstrate, the Mine Act’s drafters included section
104(d)(1) as a practical tool to reduce risk of injury.

a.      The History of
Section 104(d)(1) and its Interpretation

i.       Origin of the “Significant
and Substantial” Designation

The phrase “significantly and
substantially contribute” entered federal mining regulation in the Federal Coal
Mine Safety Act Amendments of 1965. Pub. L. 89-376, 80 Stat. 84 (1966),
amending the Federal Coal Mine Safety Act of 1952, Pub. L. 82-552, 66 Stat. 692
(1952). Specifically, the amendment required representatives of the Bureau of
Mines to note a violation of a safety provision if it was of “such nature as
could significantly and substantially contribute to the cause or effect of a
mine explosion, mine fire, mine inundation, or man-trip or man-hoist accident.”
Sec. 3(a), § 203, 80 Stat. at 85. The amended provision did not define
“significantly and substantially” or provide for monetary penalties; instead,
the statute made such a determination a baseline finding for future withdrawal
orders. Id .

Congress partially carried over and
expanded this language in the passage of the Federal Coal Mine Health and
Safety Act of 1969. Pub. L. 91-173, 83 Stat. 742 (1969). Under that Act, a
representative of the Secretary was required to note a violation of a health or
safety standard if “such violation is of such nature as could significantly and
substantially contribute to the cause and effect of a mine safety or health
hazard.” [13] §104(c)(1), 83
Stat. at 751. As with the 1965 Amended Act, the Coal Act of 1969 did not define
the term “significantly and substantially.” The legislative history of the Coal
Act contained little in the way of guidance. The conference report showed the
language in the section-by-section analysis but did not provide any information
that could aid in the interpretation of the language. H.R. Rep. 91-761, at 67
(1969) (Conf. Rep.). The House report was equally opaque. See H.R. Rep.
91-563 (1969).

However, during debate on the bill,
Congressman Carl D. Perkins of Kentucky further elaborated on the problems that
Congress hoped to fix with the 1969 Act:

The 1952 law was
directed only at the prevention of major disasters. The day-to-day accidents,
which still cause roughly 90 percent of all coal mines (sic) fatalities, were
not to be a concern of the Federal Government. Despite a record which showed
that the States were not discharging their responsibilities and were unlikely
to do so, despite their weak standards and weaker enforcement, the chief
responsibility for mine safety was left with the States.

. . .

The Federal Coal
Mine Health and Safety Act of 1969 which we are considering today deals
comprehensively with both the health and safety problems of the mines. It
corrects the deficiencies of the 1952 Act, takes account of past experience and
provides for the development and implementation of safeguards against hazards
that may develop in the future.

Senate
Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong. 1st
Sess., Part I Legislative History of the Federal Coal Mine Health and Safety
Act of 1969 , at 1124-25 (1975).

The Secretary of the Interior, under the
auspices of the Interior Board of Mine Operations Appeals (“IBMA”), was charged
with interpreting the S&S language for practical implementation. Pub. L.
91-173, 83 Stat. 742, § 105. Even though the IBMA only heard cases for a few
short years, it made several attempts to interpret this statutory language. The
first case in which the IBMA interpreted the S&S language of the Coal Act
was Eastern Associated Coal Corp. , 3 IBMA 331 (Sept. 1974). Specifically,
the IBMA defined the phrase “of such nature as could significantly and
substantially contribute to the cause and effect of a mine safety or health
hazard” to mean “conditions or practices, constituting violations, which pose a
probable risk of serious bodily harm or death short of imminent danger and
where there is a degree of fault, greater than ordinary negligence, which may
be aggravated by repetition.” Id . at 7. Later in the decision, the
Board made it clear that the phrase probable risk of bodily harm or death short
of imminent danger was the practical definition of the statutory phrase “of
such nature as could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard.” Id . at 9.

The IBMA later reiterated and clarified
its Eastern Associated Coal Corp. holding in Ziegler Coal Co. , wherein
it noted that the clause which reads “could significantly and substantially
contribute to the cause and effect” states a “probability requirement, designed
. . . to prevent application of section 104(c) to largely speculative ‘hazards.’”
4 IBMA 139, **8 (May 1975).

However, the Eastern Associated Coal
Corp. standard did not last long. Shortly after its issuance, Ziegler
Coal Co. was overturned by the D.C. Circuit on grounds unrelated to the
S&S definition. See UMWA v. Kleppe , 523 F.2d 1403 (D.C. Cir. 1976). Nonetheless, the
IBMA decided to reinterpret the S&S definition after the Court’s decision. In
Alabama By-Products Corp. , the IBMA instead stated that a violation was
of such nature as could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard when it posed a risk of injury
that was more than “remote or speculative.” 7 IBMA
85 ,
**4
(Nov. 1976). That is, taking Eastern Associated Coal Corp. and Alabama
By-Products together, citations are broken into two broad categories:
purely technical violations—which are not S&S— and violations that could
serve as the source of an injury, even if that injury is not serious or is
unlikely to occur. 

This was, obviously, a major shift in
interpretation. Now, instead of applying only to violations that posed a
probable risk of bodily harm or death short of an imminent danger, S&S
would be applied to all “non-technical” violations. The gulf between the tests
announced in Eastern Associated and Alabama By-Products
demonstrates opposing interpretations of the statutory language under the Coal
Act of 1969. The distance between those two interpretations still represents the
outer limits of S&S interpretations to this day.

When Congress passed the Federal Mine
Safety and Health Act in 1977, it had a choice to make between these divergent
interpretations of the S&S language, and it made its choice clear. The
section of the statute concerning the term “significantly and substantially” in
the Coal Act, section 104(c)(1), was maintained unchanged, but was moved to
section 104(d)(1). Pub. L. No. 95-164, sec. 201, § 104, 91 Stat. 1290, 1301
(1977). In doing so, Congress for the first time signaled its intent as to the
meaning of the phrase “significantly and substantially” contributing to the
hazard language. Importantly, the Senate report contained in the Legislative
History of the 1977 Mine Act expressly rejected the heightened narrow standard
in the IBMA’s Eastern Associated Coal Corp. decision and explicitly endorsed
the broad standard contained in the IBMA’s subsequent Alabama By-Products
Corp. standard (that is, an S&S citation is any non-technical
violation). S. Rep. 95-181 (1977). It stated in pertinent part:

The Interior Board
of Mine Operations Appeals has until recently taken an unnecessarily and
improperly strict view of the ‘gravity test’ and has required that the
violation be so serious as to very closely approach a situation of ‘imminent
danger,’ Eastern Associated Coal Corporation , 3 IBMA 331 (1974).

The Committee
notes with approval that the Board of Mine Operations Appeals has reinterpreted
the ‘significant and substantial’ language in Alabama By-Products Corp. ,
7 IBMA 85, and ruled that only notices for purely technical violations could
not be issued under Sec. 104(c)(1).

The Board there
held that ‘an inspector need not find a risk of serious bodily harm, let alone
death’ in order to issue a notice under Section 104(c)(1).

The Board’s
holding in Alabama By-Products Corporation is consistent with the
Committee’s intention that the unwarranted failure citation is appropriately
used for all violations, whether or not they create a hazard which poses a
danger to miners as long as they are not of a purely technical nature. The
Committee assumes, however, that when ‘technical’ violations do pose a health
or safety danger to miners, and are the result of an ‘unwarranted failure’ the
unwarranted failure notice will be issued.

Id. at 31.

Furthermore, the ramifications of
significant and substantial citations and orders were expanded under the Mine
Act. Congress added other enhanced penalties that underscored how section
104(d)(1), containing the significant and substantial statutory language, was
meant as an initial step in the progressive enforcement scheme. A
new section, 104(e), created the new concept of “pattern of violations”
triggered by S&S violations. [14]  The pattern of
violations sanction is among the most stringent in mine regulation and the desire
to avoid such a designation is a major incentive to operators to ensure
compliance.

a.      The Commission’s
evolving interpretation of section 104(d)(1)

Despite Congress’s express endorsement,
the Commission never adopted the Alabama By-Products standard. Instead,
the Commission developed a new test in 1981, which did not last long. The Commission
has never really settled on a test and has instead made continuous attempts to
clarify the meaning of the phrase “significantly and substantially,” for
purposes of adjudication. Unfortunately, those attempts have often strayed
further and further from the statutory language and Congressional intent,
resulting in the currently problematic Peabody test. Thus, Peabody is
the culmination of four decades of Commission attempts to translate the
statutory language into a practical test for the adjudication of the disputes
before it without reaching a workable, statutorily grounded solution.

The Commission’s
first attempt to interpret Section 104(d)(1) came in Cement Division,
National Gypsum Co. , 3 FMSHRC 822 (Apr. 1981). In that case, the Commission
implicitly rejected the Alabama By-Products standard, stating that it
was inconsistent with the statutory enforcement scheme, would turn every
citation into an S&S citation (and thereby cause every mine to constantly
be on POV status), and would eliminate the ability of inspectors to use their
judgment in determining whether a citation was S&S. [15] Id . at 825, 828-29,
829 n.9. The Commission stated that the proper legal standard for an S&S
violation “falls between [ ] two extremes—mere existence of a violation, and
existence of an imminent danger.” Id . at 828. That is, the Commission
neatly restated the two extreme positions from the IBMA’s Eastern Associated
and Alabama By-Products cases and placed the “proper” analysis somewhere
in the wide gulf between them.

The Commission concluded that a violation
is S&S “if, based upon the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature.” Id . at 825. [16] However, later in
the same decision, the Commission defined the word “hazard ” to denote “a measure of danger to safety or health” and
found that a violation “significantly and substantially” contributes to the
cause and effect of a hazard if the violation could be a major cause of
a danger to safety or health. Id . at 827 ( “In
other words, the contribution to cause and effect must be significant and
substantial.”).

The inconsistency of these two definitions
in the same decision is readily apparent: Is a violation S&S if there is a
reasonable likelihood that the hazard contributed to will result in serious
injury or illness, or if the violation could be a major cause of a danger? Those
two questions will not necessarily have the same answers. For example, an
operator may be cited for failing to adequately support a rib in a rarely
traveled portion of the mine. Utilizing the first definition, failure to
support a rib could be a major cause of a rib failure and rock fall, which
would be a danger. Therefore, someone might reasonably conclude that the
violation was S&S. However, utilizing the second definition, a rock fall in
a rarely traveled portion of the mine might not be “reasonably likely” to
result in an injury. Therefore, someone else might reasonably conclude that the
violation was not S&S. Sometimes, the answer to both inquiries may lead to
the same conclusion, but that conclusion would be reached through different
inquiries and would consider different facts.

In
an attempt to resolve this ambiguity, the Commission in Mathies Coal Co. ,
returned to the definition of S&S. However, rather than choose between the
two previous definitions in National Gypsum (the “hazard contributed to
is reasonably likely to cause an injury” definition and the “could be a major
cause” definition), the Commission strayed further from the language and intent
of the Mine Act and made them two separate inquiries in a four-step analysis,
thereby subtly changing each.

Specifically, the Commission held that a
violation of a mandatory safety standard significantly and substantially
contributes to the cause and effect of the hazard when there is: (1) an
underlying violation of a mandatory safety standard; (2) a discrete safety
hazard—that is, a measure of danger to safety [17] —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. Id . at 3-4. The end
result was that the attempt to clarify the test resulted in a change in the
nature of the test, adding elements not required by the statute and creeping
towards the imminent danger standard.

Furthermore, in applying its new test, the
Commission appears to have muddied the waters and created confusion about how
the analysis should be conducted. A common-sense reading of these second and
third factors of Mathies would imply that someone conducting the second
step must establish that the violation contributes to a hazard. Then, in the
third step, the analysis shifts so that the violation is no longer being
considered but, instead, the question is whether the hazard identified would be
reasonably likely to result in an injury.

For example, if the violation at issue was
a 5% concentration of methane, the second step would establish that such a
concentration contributes to an explosion hazard. Then, the third step would
not ask whether this particular 5% concentration of methane – the violation
itself – was reasonably likely to cause an injury, but instead whether an
explosion – the hazard created – would be reasonably likely to cause injury.

However, a close reading of the Mathies
decision shows that the Commission seems to have misapplied the very test it
had just established. The facts in Mathies concerned a citation written
for a defective “sander” used to slow a railway mantrip. 6 FMSHRC at 4. In
analyzing the second step, the Commission noted that the violative condition
there contributed to a hazard of sliding derailment or collision with objects
on a mantrip track. Id . To support this holding, the Commission noted
that brakes alone could not stop the machine, that the mine was damp, that the
track was wet, and that there were curves and grades on the route. Id . Following
the language of the test, the third factor should have asked only whether a
sliding derailment or collision (the hazard) was reasonably likely to result in
injury. Instead, in the third step the Commission essentially reviewed the same
evidence from the second step again, including the fact that the route
encompassed curves and grades and that it was wet. Id . It held that
“[i]f the dampness, curves, or grades had necessitated use of the defective
sander, the absence of sanding capacity could have been a major cause of . . . derailment.”
Id . It then stated that because miners were on the machine, they would
be seriously injured in such a derailment. Id .

The problem with the Commission’s
application is apparent. The wording of the test implies that the correct step
three inquiry was whether a derailment or collision would be reasonably likely
to cause injury. Instead, the Commission seemed to be determining whether the
violation (defective sanders) would be reasonably likely to cause injury. While
the Commission concluded, “we concur with the judge that the hazard contributed
to by the violation created a reasonable likelihood of injury,” it did so only
after confusing the nature of the test. Instead, the Commission could have
simply asked whether the violation was reasonably likely to cause an injury,
thereby resolving both steps 2 and 3 at the same time. While major
changes have since been made to the Mathies test, the formal structure
of the Mathies S&S test continues to be used by both the Commission
and the Courts, and ambiguities remain. [18]

In Musser Engineering, Inc., 32
FMSHRC 1257 (Oct. 2010), the Commission attempted to clarify that the “Secretary
need not prove a reasonable likelihood that the violation itself
will cause injury.” Id . at 1281 (emphasis added). The Commission held
that the proper inquiry according to Mathies is whether “there is a
reasonable likelihood that the hazard contributed to by the violation .
. . will cause injury.” Id . (emphasis added). The Commission also
emphasized the well-established precedent that “the absence of an
injury-producing event when a cited practice has occurred does not preclude a
determination of S&S.” Id . In Musser , the violation at issue was
the failure of the mine operator to have an accurate map. The hazard was the
danger of breaking through to an adjacent mine and the resulting water
inundation. Id. at 1280-81. The Commission specifically rejected the
operator’s claim that the Secretary must prove the inaccurate map (the
violation) would be reasonably likely to cause an injury. Id . at 1281.

The Commission’s decision in Musser ,
however, did not conclusively determine how Mathies was to be applied. A
year later, finding that the holding in Musser was still not clear, the
Commission issued Cumberland Coal Res., LP , 33 FMSHRC 2357 (Oct. 2011). In
that case, the Commission noted that under Musser , the inquiry is
whether there was a reasonable likelihood that the relevant hazard would cause
injury, not the violation itself. Id . at 2366. It noted that judges err
when they consider the likelihood that an emergency might occur, rather than
assuming the occurrence of an emergency when conducting the S&S analysis. Id .
The Commission stressed that Judges must not conflate “violation” with “hazard,”
hoping to clear up the confusing and unwieldy Mathies test, which the
Commission struggled to consistently apply.

In Cumberland
Coal Res ., 717 F.3d 1020, 1026 (D.C. Cir. 2013), the D.C. Circuit
considered arguments as to whether Mathies Steps 2 and 3 allowed the
assumption of an emergency when evaluating the S&S designation involving an
emergency safety standard. The D.C. Circuit rejected the operator’s arguments
that the Mathies test required the evaluation of the probability of an
emergency. Id. at 1026-7. Instead, the D.C. Circuit accepted the Secretary’s
argument that the word “could” in section 104(d)(1) “refers to the violation’s
intrinsic capacity to contribute to the hazard, not to any specific probability
that it will.” Id. at 1026. The D.C. Circuit held that the Secretary need
not demonstrate in the context of an emergency standard the likelihood that a violation
would result in a hazard. Id . at 1027. As the court explained, “The
hazard here is delayed escape from an emergency, but there can be no delayed
escape, unless there is an emergency in the first place. Similarly, if there is
no emergency, then there can be no resulting injury. Id.

Circuit courts were, generally,
deferential to the Commission’s Musser and Cumberland formulation
of Mathies . In Knox Creek Coal Corp. v. Secretary of Labor , the
Fourth Circuit analyzed the Mathies test to determine whether one should
presume the occurrence of the hazard at step three. The Fourth Circuit
reasoned:

Given the language and structure of the Mathies
test taken as a whole, this approach makes sense. In its first key opinion
interpreting the statute’s S & S provision, 30 U.S.C. § 814(d)(1) , the Commission identified two
sensible considerations—“likelihood and gravity”—that rendered a violation S
& S. Sec’y of Labor v. Nat’l Gypsum Co., 3 FMSHRC 822, 828 (1981).
In short, the Commission reasoned that a violation should be considered S &
S when it is reasonably likely to result in serious harm. See
id. The later-developed Mathies test, at its core, also reflects a
dual concern for both likelihood and gravity. In our view, the second prong of
the test, which requires the showing of a “discrete safety hazard—that is, a
measure of danger to safety—contributed to by the violation,” Mathies, 6
FMSHRC at 3, primarily accounts for the Commission’s concern with the likelihood
that a given violation may cause harm. This follows because, for a violation to
contribute to a discrete safety hazard, it must be at least somewhat likely to
result in harm.

By contrast, we think that Mathies’
third and fourth prongs, which the Commission expected would “often be combined
in a single showing,” Mathies, 6 FMSHRC at 4, are primarily concerned
with gravity —the seriousness of the expected harm. To the extent that
the third and fourth prongs are concerned with likelihood at all, they are
concerned—by their very terms—with the likelihood that the relevant hazard will
result in serious injury. Id. at 3–4. Requiring a showing at prong three
that the violation itself is likely to result in harm would make prong two
superfluous.

811
F.3d 148, 162 (4th Cir. 2016). The Fourth Circuit explicitly rejected the
operator’s argument that a reasonable likelihood of the hazard is relevant at
step three, and instead endorsed the analysis in Musser . Id . at 164. (“However,
that position is flatly contradicted by more recent Commission precedent, Musser,
32 FMSHRC at 1281, by the unanimous voice of federal appellate courts, see Peabody
Midwest, 762 F.3d at 616; Cumberland Coal, 717 F.3d at 1025–27; Buck
Creek, 52 F.3d at 135; Austin Power, 861 F.2d at 103–04, and by the
various considerations outlined above. Accordingly, the scales still tip
decidedly in the Secretary’s favor.”).

Despite court
approval, the Commission amended the Mathies test yet again following
the Fourth Circuit’s Knox Creek Coal decision, in Newtown Energy,
Inc. , 38 FMSHRC 2033, 2039 (Aug. 2016) (“the Fourth Circuit[’s]
discuss[ion] [of] the necessity of a likelihood element in step two simply
emphasizes that a review of the likelihood of the occurrence of the hazard is
required.”). Though the Fourth Circuit only required some likelihood that a
hazard would result in harm, the Newtown Commission rewrote Step 2 to
instead require the violation create a “reasonable likelihood of the occurrence
of the hazards.” Id . at 2038 (“[B]ased upon the particular facts
surrounding the violation, there exists a reasonable likelihood of the
occurrence of the hazard against which the mandatory safety standard is
directed.”).

Four years later, the Commission remained
unsatisfied with the application of the Mathies test, reformulating it
again in Peabody Midwest Mining, LLC , 42 FMSHRC 379 (Jun. 2020). In Peabody ,
the Commission purported to place the Newtown analysis within the
framework of the Mathies test. Id . at 383. Specifically, the
Commission recast the Mathies test to require: (1) the underlying
violation of a mandatory safety standard; (2) the violation was reasonably
likely to cause the occurrence of the discrete safety hazard against which the
standard is directed; (3) the occurrence of that hazard would be reasonably
likely to cause an injury; and (4) there would be a reasonable likelihood that
the injury in question would be of a reasonably serious nature. Id . [19]

Once again, while
stating that it was clarifying the Mathies test, the Commission changed
it in significant ways. As one Commission Judge observed, this has essentially
split Mathies Step 2 into a “two-step process,” thereby adding a fifth
step to the Mathies four-step test. Consol Pennsylvania Coal Company,
LLC , 45 FMSHRC 774, 784 (Aug. 2023) (ALJ Lewis). Specifically, the second
step of the analysis now requires an ALJ to:

(1) determine the
specific hazard the standard is aimed at preventing; and (2) determine whether
a reasonable likelihood exists that the hazard against which the mandatory
standard is directed will occur. Newtown Energy, Inc. , 38 FMSHRC at
1868. This finding must be based on “the particular facts surrounding the
violation.” Northshore Mining Co. , 38 FMSHRC 753, 757 (2016). The
Secretary need not prove a reasonable likelihood that the violation itself will
cause injury, but rather whether there is a reasonable likelihood that the
hazard contributed to by the violation will cause an injury . Musser
Engineering, Inc. , 32 FMSHRC 1257, 1280-1281 (Oct. 2010).

Id .

After Peabody ,
the Commission attempted to sum up its interpretation of 104(d)(1) in a
single sentence in a way that captured the entire, tortured history of its
jurisprudence, stating that “significant and substantial violations…[are] violations
that that create a cause and effect resulting in a reasonable likelihood of a
reasonably serious injury.” Northshore Mining Company , 43 FMSHRC 1, 12
(Jan. 2021).

The final product is a Commission-created
transmogrification of the Mathies test, which was supposed to clarify
the statutory language, into a different, more stringent test that is unmoored
from the language of the statute or the explicit intent of Congress. The effect
of the higher standard is illustrated through Musser , in which the
Commission stated that the Secretary need only show the inaccurate mine map contributed
to the danger of a mine inundation. According to Peabody , the
Secretary must now demonstrate that the inaccurate mine map would be reasonably
likely to cause the mine inundation. As we recounted above, the Commission
in National Gypsum stated that S&S “falls between [ ] two extremes –
mere existence of a violation, and existence of an imminent danger.” 3 FMSHRC
at 828. In Peabody , the Commission swung towards announcing that S&S
is the same as the existence of an imminent danger.

b.      Problems with Peabody
S&S Test

For the reasons discussed below, we
conclude that the current Peabody S&S test contradicts the plain
language of section 104(d)(1) of the Mine Act.

i.       The language of
the Peabody S&S test contradicts the language of section 104(d)(1)
of the Mine Act.

Section 104(d)(1) requires a
representative of the Secretary to designate a violation as “significant and
substantial” if the violation “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). Step 1 of the Peabody S&S
test is superfluous as it asks whether there is an “underlying violation of a
mandatory safety standard.” Peabody , 42 FMSHRC at 383. Of course, there
must first be a violation of the standard before an S&S designation occurs.

Step 2 of the
Peabody S&S test asks whether “ the violation was
reasonably likely to cause the occurrence of the discrete safety hazard against which the
standard is directed.” Id . Notably , section 104(d)(1) of the Mine Act only
requires that the violation “could significantly and substantially contribute
to the cause and effect of [a safety or health hazard].” 30 U.S.C. § 814(d)(1).
Requiring the Secretary to demonstrate that the violation would “cause the
occurrence” of a hazard deviates in impermissible ways from the language of
section 104(d)(1), which only requires a “contribut[ion].”   Moreover,
the D.C. Circuit has issued multiple decisions stating that the Secretary must
demonstrate that the violation could contribute to a hazard. [20] See Sec’y of Labor v.
Jim Walter Res ., 111 F.3d at 917 (requiring that the Secretary demonstrate
the violation significantly and substantially contributes to the hazard); see
also Cumberland Coal Res ., 717 F.3d at 1026-27 (requiring a showing
that the violation has an intrinsic capacity to contribute to the hazard). The
Commission’s role must always be to interpret the language of the Mine Act,
rather than creating a new standard not found anywhere in the law.

As the Commission has previously observed,
“it is the  contribution  of a violation to the cause and effect
of a hazard that must be significant and substantial.”  Sec'y of Labor
v. Youghiogheny & Ohio Coal Co ., 9  FMSHRC 673, 677 (Apr. 1987) (citing U.S.
Steel Mining Co. , 6 FMSHRC 1834, 1836 (August 1984)) (emphasis added). This means the
language is about the degree to which a violation adds to the existence of a
hazard, not how likely it is for a hazard to exist. While the exact difference
between those terms may not be entirely clear, it is unquestionable that
“reasonably likely to cause” establishes a higher standard than “could
significantly and substantially contribute to,” the language contained in the
Mine Act.

In Carmeuse Lime , one Commission Judge
cogently described the extra-textual nature of the Mathies second step
analysis:

The Newtown/Peabody reformulation
is inconsistent with the Mine Act's definition of S&S, which focuses on
violations that could significantly and substantially contribute to a hazard.
30 U.S.C. § 814(d)(1). This aspect is satisfied if the violation “could”
contribute to the hazard. Section 104(d)(1) of the Mine Act expressly uses the
term “could,” and the Fourth and Seventh Circuits have rejected the idea that
step two requires proof of reasonable likelihood. See Knox Creek Coal Corp.
v. Sec'y of Lab. , 811 F.3d 148, 164 (4th Cir. 2016) (noting that at step
two, “the Secretary must establish that the violation contributes to a discrete
safety hazard,” and at steps three and four, “that the hazard is reasonably
likely to result in a serious injury”); Peabody Midwest Mining, LLC v.
FMSHRC , 762 F.3d 611, 616 (7th Cir. 2014) (“the question is not whether it
is likely that the hazard … would have occurred; instead, the ALJ had to
determine only whether, if the hazard occurred (regardless of the likelihood),
it was reasonably likely that a reasonably serious injury would result”). The
legislative history of the Mine Act also “suggests that Congress intended all
except ‘technical violations' of mandatory standards to be considered
significant and substantial.” Consolidation Coal Co. v. FMSHRC , 824 F.2d
1071, 1085 (D.C. Cir. 1987); accord Knox Creek , 811 F.3d at 163
(“Congress did not intend for the S & S determination to be a particularly
burdensome threshold for the Secretary to meet”). In addition, this analysis is
consistent with the Commission's own understanding of step two of the Mathies
test up until Newtown. See, e.g., Musser Eng'g, Inc., 32 FMSHRC 1257,
1280 (2010).

45
FMSHRC 500, 517 n.12 (Jun. 2023) (ALJ Moran); see also Saiia
Construction Company, LLC , 46 FMSHRC 452, 461 n.5 (Jul. 2024) (ALJ Lewis)
(“This Court notes the mounting criticism of the Commission's Newtown/Peabody
reformulation of the second step of the Mathies test.”).

Accordingly, Step 2 of the recently
amended Peabody test both ignores the language of the Mine Act and Court
precedent as to how that language is to be applied.  

Step 3 of the Peabody
S&S test requires that “the occurrence of that hazard would be reasonably
likely to cause an injury.” However, section 104(d)(1) of the Mine Act does not
require the
Secretary to demonstrate any “injury.” Nothing in the statutory language refers
to injuries. Instead, it refers only to the contribution to a mine
safety or health hazard. It has been suggested that consideration of injuries
is implied because section 104(d) discusses the “cause and effect” of a hazard
and an injury is an “effect” of a hazard. However, that is not a particularly
natural reading. The most obvious “effect” of a hazard in the context of this
section would be a miner’s exposure to a danger, not necessarily an injury. You
can be exposed to a hazard without being injured, and Congress was immensely concerned
about exposure. Indeed, many mine safety and health dangers, such as
respiratory hazards and examination standards, stem from repeated exposure or
the general risks associated with undiscovered exposures to danger. [21] Congress could have stated it was
concerned with injuries in this section if it so desired, as it did with
imminent dangers and other sections of the Mine Act, but chose to simply
discuss the creation of hazards. [22]

The Commission has previously recognized
the need to eliminate conditions that contribute to a hazard but do not
necessarily create an immediate injury. For example, the Secretary has adopted
mandatory health standards pursuant to the Mine Act aimed at protecting miners
against respirable dust in underground coal mines. See, e.g. , 30 C.F.R. § 70.100.
The Commission recognized both that Congress was concerned with “the
potentially devastating consequences” of respiratory illnesses and that exposure
to respirable hazards may be so gradual as to not result in injury until many
years after prolonged exposure, remarking that “the development of respirable
dust induced disease is insidious, furtive and incapable of precise prediction.”
Consolidation Coal Co. , 8 FMSHRC 890, 898-99 (June 1986), aff'd,  824
F.2d 1071 (D.C. Cir. 1987). Therefore, the Commission held that the third prong
of the Mathies test was presumed to be established if the Secretary
proved that “overexposure to respirable dust” had occurred. Id. at 899. As
the Commission later wrote, the presumption was adopted “because of the virtual
impossibility of determining the contribution of a single incident of
overexposure to respirable dust to the development of respiratory diseases,
including pneumoconiosis.” Manalapan Mining Company, Inc ., 18 FMSHRC
1375, 1380 (Aug. 1996). Exposure, not likelihood of injury, was understood as the
guiding principle.

Further, section 104(d)(1) does not contain
the phrase “reasonably likely,” which is a common standard in the law and which
Congress could have used if it intended to do so. It is further notable that
Congress chose not to use the phrase “reasonably likely” or any variation of
that phrase in any provision of the Mine Act, and it would be wrong for the
Commission to write it in here. Qualifying that the sanction can only be used,
if and when the hazard would be reasonably likely to result in an injury ,
further demonstrates that the test is unmoored from the statute.

Finally, Step 4 of
the Peabody S&S test asks whether “there would be a reasonable
likelihood that the injury in question would be of a reasonably serious
nature.” 42 FMSHRC at 383 . Yet, section 104(d)(1) does not instruct the
Secretary to treat violations that contribute to hazards that would result in
minor injuries any differently than hazards that would result in major
injuries. Why then does the Commission S&S test measure the seriousness of
the injury which is likely to result?   It is impossible to peg this
step to any language contained in the Act. And, in fact, this step of the
analysis (like the first) is often rendered superfluous: any injury is
reasonably serious.

ii.      The Peabody
S&S standard impermissibly overlaps with the Mine Act’s “imminent danger”
standard.  

Perhaps the clearest example of the Peabody
S&S test’s conflict with statutory language is illustrated by a comparison
of the test with the Mine Act’s definition of an “imminent danger.” 30 U.S.C. §
802(j). Specifically, the current test is identical to the higher standard of
imminent danger, making it such that any violation found to be S&S would of
necessity also be an imminent danger, thereby collapsing the careful scheme of enforcement
and sanctions that Congress created.

As established, the Mine Act categorizes
violations of mandatory safety standards on a gradient of increasing severity. See
Emery Mining Corp , 9 FMSHRC at 2000 (Dec. 1987) (quoting Cement Div.,
Nat'l Gypsum Co. , 3 FMSHRC at 828 (the Mine Act’s overarching enforcement
scheme promotes mine operator’s compliance with its requirements by providing
“increasingly severe sanctions for increasingly serious violations or operator
behavior.”)). The S&S designation must be understood within the context of
the Mine Act’s “increasingly severe sanctions.” An S&S designation is the
initial designation (beyond a simple violation) within the progressive
enforcement scheme.

The Mine Act expressly provides that an S&S
violation is less serious than an “imminent danger.” See 30 U.S.C. §
814(d)(1) (stating that an S&S standard is appropriate for violations that “do
not cause imminent danger”). An “imminent danger” is “the existence of any
condition or practice in a coal or other mine which could reasonably be
expected to cause death or serious physical harm before such condition or
practice can be abated.” 30 U.S.C. § 802(j) (emphasis added). If the inspector
discovers an “imminent danger,” he is authorized to withdraw all miners from
the affected area pursuant to section 107(a) of the Mine Act. The issuance of an
S&S citation ordinarily does not result in the withdrawal of miners, but
instead the assessment of a proposed civil penalty. 30 U.S.C. § 815(a). 

Despite Congress’ clear instructions that
an S&S violation is for situations when “such violation [does] not cause
imminent danger” the Peabody S&S test makes little distinction
between the two designations. [23] The Peabody
S&S test requires that a violation be reasonably likely to lead to
significant injury in order to be S&S. However, the Mine Act states
explicitly that any condition or practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm before such
condition or practice can be abated,” is an “imminent danger.” 30 U.S.C.
803(j). For all practical purposes, these two tests are identical, with both
standards directing a Judge to determine whether a violation is reasonably
likely to cause harm. The
two tests each functionally require that the Secretary demonstrate a reasonable
likelihood of serious or fatal injuries, and it is difficult to imagine a
situation where a violation would be S&S under the Peabody test and not
also be an imminent danger. Accordingly, the Peabody S&S test
directly contradicts Congress’ edict that an S&S violation is appropriate
only when “such violation [does] not cause imminent danger.” 30 U.S.C. §
814(d)(1). 

The Senate Report that accompanied the
Mine Act, includes a critique of the Commission’s predecessor, the Interior
Board of Mine Operations Appeals (“IBMA”), for interpreting an identically
worded “significant and substantial” provision in a manner that closely
resembled the definition of an “imminent danger.” S. Rep. No. 95-181, at 31
(stating that the Board interpreted the applicable language in “an
unnecessarily and improperly strict view . . . and has required that the
violation be so serious as to very closely approach a situation of ‘imminent
danger’”). [24] By drifting
further and further from the language of the Mine Act, the Commission has
allowed that same strict view to prevail. It appears that history has repeated
itself.

iii.      A Return to the
Statutory Framework to Analyze Significant and Substantial Sanctions

The Commission has for decades expanded
and tinkered with a test that was too removed from the language of the Mine Act
and too confusing to ever function as intended. As has been shown above, the
multiple S&S tests that the Commission created usually led to more
confusion than clarification. Furthermore, though they had the appearance of legal
tests, they failed to function as such. Various steps were redundant or unnecessary,
while the operative steps were often so imprecise that the same facts led to contradictory
results when applied by different judges. A test that does not provide a
reliable answer is not a test. Indeed, the Supreme Court wrestled with this
very issue last year when it issued its landmark decision in Loper Bright
Enterprises v. Raimondo , explaining that it was overturning the Chevron
doctrine in part because what had been intended to be a simple two-step test
had become unworkable. 603 U.S. 369, 375 (2024). According to the Court, Chevron
deference was inappropriate and failed to provide a clear or easily accessible
standard:

Because Chevron in its original,
two-step form was so indeterminate and sweeping, we have instead been forced to
clarify the doctrine again and again. Our attempts to do so have only added to Chevron’s
unworkability, transforming the original two-step into a dizzying breakdance. See
Adams Fruit Co. , 494 U.S. at 649–650, 110 S.Ct. 1384; Mead , 533 U.S.
at 226–227, 121 S.Ct. 2164; King , 576 U.S. at 486, 135 S.Ct. 2480; Encino
Motorcars , 579 U.S. at 220, 136 S.Ct. 2117; Epic Systems , 584 U.S.
at 519–520, 138 S.Ct. 1612; on and on. And the doctrine continues to spawn
difficult threshold questions that promise to further complicate the inquiry
should Chevron be retained. See, e.g., Cargill v. Garland , 57
F.4th 447, 465–468 (CA5 2023) (plurality opinion) (May the Government waive
reliance on Chevron ? Does Chevron apply to agency interpretations
of statutes imposing criminal penalties? Does Chevron displace the rule
of lenity?), aff'd, 602 U. S. 406, 409 (2024).

Four decades after its inception, Chevron
has thus become an impediment, rather than an aid, to accomplishing the basic
judicial task of “say[ing] what the law is.” Marbury, 1 Cranch at 177. And its
continuing import is far from clear.

. . .

Nor has Chevron been the sort of “‘stable
background’ rule” that fosters meaningful reliance. Post, at 2298, n. 1
(opinion of KAGAN, J.) (quoting Morrison v. National Australia Bank Ltd. ,
561 U.S. 247, 261, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010)). Given our constant
tinkering with and eventual turn away from Chevron , and its inconsistent
application by the lower courts, it instead is hard to see how anyone—Congress
included—could reasonably expect a court to rely on Chevron in any
particular case. And even if it were possible to predict accurately when courts
will apply Chevron , the doctrine “does not provide ‘a clear or easily
applicable standard, so arguments for reliance based on its clarity are
misplaced.’” Janus , 585 U.S. at 927, 138 S.Ct. 2448 (quoting South
Dakota v. Wayfair, Inc. , 585 U.S. 162, 186, 138 S.Ct. 2080, 201 L.Ed.2d 403
(2018)). To plan on Chevron yielding a particular result is to gamble
not only that the doctrine will be invoked, but also that it will produce
readily foreseeable outcomes and the stability that comes with them. History
has proved neither bet to be a winning proposition.

Id . at 409-410. The
Supreme Court could easily be discussing the Commission’s S&S test, for the
reasons we have outlined. The Commission’s S&S test is neither clear nor
simple. In fact, attempts to clarify the Secretary’s burden have instead added
to the tests overall unworkability, ultimately producing a test that further
complicates the issue and no longer reflects the language of section 104(d)(1).
Accordingly, our S&S test is an impediment to, rather than a tool for, applying
the law.  

For the reasons stated herein, we find
that Peabody is not consistent with section 104(d)(1). [25] Section
104(d)(1)’s plain language should be applied directly by the Commission and its
judges when reviewing cases that involve the Secretary’s use of the S&S
designation. We believe that in drafting the language of section 104(d)(1)
Congress made its intent clear so that the Commission could interpret the use
of S&S by its own stated and plain terms and not through an entirely
separate (and non-textual) formulation.

Though the Commission has acted in good
faith over the decades in modifying and clarifying the S&S test, it has
become clear that a formalized test does more to confuse the statutory
provision and has led us to a point where the test bears very little
relationship to the statutory language. Therefore, rather than trying to create
a new test or modify the string of old ones—a move that history has shown will
lead to further straying from the statute—we find that a formalized test for
S&S is unnecessary and problematic. Instead, we will simply define the
terms of the provision and allow MSHA and administrative law judges to apply
the statutory language as defined to any given citation. The Commission must
return to applying the law as written in section 104(d)(1) and as interpreted
by appellate courts. That is, whether the violation cited, “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).

It is a “fundamental canon of statutory
construction that the words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.” FDA v. Brown &
Williamson Tobacco Corp ., 529 U.S. 120, 132-33 (2000) (citations omitted). Considering
the syntax of section 104(d)(1), it is clear that the phrase “significantly and
substantially” modifies the term “contribute.” See Youghiogheny & Ohio
Coal Co. , 9 FMSHRC at 677 (“It is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial.”).

In determining the meaning of statutory
terms, the Commission and courts have also considered the dictionary
definitions of common terms. See, e.g., CalPortland Co., Inc. , 839 F.3d
1153, 1163 (D.C. Cir. 2016) (finding a dictionary definition of the term
“reinstatement” in section 105(c)(2), 30 U.S.C. § 815(c)(2), of the Mine Act
clarified Congressional intent). Here, the common dictionary definition of
terms used in section 104(d)(1) clarify its meaning. 30 U.S.C. § 814(d)(1) (“could
significantly and substantially contribute to the cause and effect” of a
hazard.). Merriam-Webster defines “contribute” as “to play a significant part in
bringing about an end or result.” Merriam-Webster Collegiate Dictionary
252 (10 th ed. 1999). A “cause” is “a reason for an action or
condition” or “something that brings about an effect or a result.” Id .
at 182. An “effect” or “something that inevitably follows an antecedent (as
cause or agent).” Id . at 367. When these terms are read together –
“contribute” “cause” and “effect” – and their ordinary definitions are
considered, it is clear that Congress was concerned about violations to which a
miner could be exposed that could result in a hazard. [26]    

The inclusion of the term “could”
indicates that section 104(d)(1) does not require that the Secretary
demonstrate that the hazard would be “reasonably likely” to occur. Rather, the
term “could” refers to violations that have the potential to contribute to a
mine safety and health hazard. See also Cumberland Coal
Res .,
717 F.3d at 1026-27 (D.C. Cir. 2013) (a judge must consider whether a violation
has an intrinsic capacity to contribute to a hazard).

In sum, in order to affirm an S&S
designation, the plain language of section 104(d)(1) dictates that the
Secretary must demonstrate that the violation to which miners are exposed could
make an S&S contribution to a mine safety or health hazard. This is consistent with the initial portion
of the Commission’s original Mathies test (without the surplusage of
Step 3 and Step 4). 6 FMSHRC at 3-4 (Step 2 requires a discrete safety
hazard—that is, a measure of danger to safety—contributed to by the violation).
Importantly, it is also consistent with the D.C. Circuit’s decision in Sec’y of Labor v.
Jim Walter Res .,
111 F.3d at 917. [27] In JWR ,
the D.C. Circuit clarified that Mathies Step 2 contains two separate
inquires: (1) whether there is a hazard to which the violation might contribute
and, if so, (2) whether the violation significantly and substantially
contributes to that hazard. Id .

Notably, the Mine Act’s graduated
enforcement scheme contains a variety of tools for MSHA to issue increasingly
severe enforcement such as section 104(d)’s “unwarrantable failure”
designations and section 104(e)’s “pattern of violations” designation. 30 U.S.C. § 814(d)(1);30
U.S.C. § 814(e). The
“significant and substantial” designation is but an initial step on the ladder
of a progressive enforcement system and should be interpreted consistently
within its statutory role. [28]

Finally, the Commission’s intention in
reformulating the S&S analysis is not to change the frequency with which
Section 104(d) is cited by MSHA inspectors. That is a public policy question
for the Secretary of Labor to decide and for conditions in the nation’s mines
to dictate. Our only role is to ensure the test used by the Commission is
consistent with the language of section 104(d)(1) of the Mine Act and can be
consistently applied.

2. Application of the
   Statutory Language in Section 104(d)(1) to the Judge’s S&S Findings

The Judge affirmed the S&S
designations for both violations at issue in this appeal. Below we review the
facts of the case through the statutory test contained in section 104(d)(1)
pursuant to the definitions and conclusions we reached above. For the reasons
below, we find that for both violations the Judge’s findings are supported by
substantial evidence and establish that the violations significantly and
substantially contributed to a mine safety or health hazard within the meaning
of Section 104(d)(1).

a.      Citation No.
9204245 (Pin Violation)

The inspector testified that the cited
condition, a missing horizontal pin from the gate shield, could play a
significant and substantial role in exposing miners to the hazard of a vertical
pin becoming a projectile and striking a miner. Tr. 42-53, 61. The Judge
credited the inspector’s testimony and found that the “Secretary has presented
credible evidence that the shear pins, which are designed to break, have been
projected from the clevis upon breaking.” 44 FMSHRC at 456. Equally important
to the Judge’s finding that the violation could contribute to a mine hazard is
that he found miners were within the area where the vertical pin would be
airborne. 44 FMSHRC at 460. ( “All witnesses . . . testified that miners at
this mine generally operate shields . . . from two shields away at a distance
of seven-to-eleven feet.” ). That is, they would be exposed to any hazard. [29] The Judge applied
the Mathies and Peabody tests to find that the violation was
S&S. While the Judge’s application of the Mathies and Peabody
tests was not in error at the time his decision was issued, we take the
opportunity now to apply the plain-language reading of the statute that we
announced above. [30]  

As the inspector testified, a miner within
eight feet of the shield could be struck with a projectile and that several
such incidents had occurred in the past. 66-67. The operator alleged instead
that a miner would be at least two shields away, a distance of eleven feet, and
that there had been no injuries ever recorded. Tr. 68. The Judge reasonably
credited the inspector’s testimony and affirmed his S&S designation. 44
FMSHRC at 460. On review, we find that the mine safety or health hazard was a
flying projectile to which miners could be exposed. A missing pin in a gate
shield where miners are present could significantly and substantially
contribute to a flying pin hazard. As the Commission has previously observed,
“[i]t is the  contribution  of a violation to the cause and
effect of a hazard that must be significant and substantial.”  Sec'y of
Labor v. Youghiogheny & Ohio Coal Co ., 9  FMSHRC at 677. This standard is met
by the evidence in the record.

Substantial evidence supports the Judge’s determination
that the violative condition could significantly and substantially contribute
to the hazard of a miner being struck by a vertical pin. Further, substantial
evidence supports the Judge’s determination that miners were exposed to this
hazard (or would have been exposed under normal continuing mining operations). As
a result, we affirm the Judge’s determination that the citation was properly
cited as having an S&S contribution.

b.      Citation No.
9204250 (Globes Violation)

The operator argued that the Judge erroneously
found that an “explosion within the enclosure was reasonably likely (ALJ
15-16).” PDR at 10. The operator argued that the Judge ignored testimony that
“several unlikely events would have to occur simultaneously for any hazard
related to the alleged condition to occur.” PDR at 22. The operator also
objected to the Judge’s finding that that “there was nothing in the record
proving that LED bulbs were in fact present at the time of the citation[.]” PDR
at 23.

For the reasons outlined extensively
above, we have rejected the Newtown and Peabody analyses. As a
result, the Judge was not required to determine whether an explosion was
reasonably likely to occur. See Cumberland Coal Res ., 717 F.3d at 1026-27
(D.C. Cir. 2013) (Section § 104(d)(1) “refers to the violation’s intrinsic
capacity to contribute to the hazard, not to any specific probability that it
will.”). Instead,
we again apply the plain statutory language to the facts in this matter.
The
inspector testified that the cited condition, cracks in the light fixture
globes, could play a significant and substantial role in exposing miners to the
hazard of a methane explosion. Tr. 72-81; Sec. Ex. 4. In determining this
hazard, the inspector noted that the mine liberated considerable amounts of
methane and had suffered methane ignitions in the past. The Judge credited the
inspector’s testimony and found that that a light fixture failure must be
“assumed to be able to ignite methane that naturally enters the enclosure.” 44
FMSHRC at 465. The Judge found the ignition within the globes could escape into
and ignite the general mine atmosphere outside the globe, finding that the mine
was gassy and represented a “constant threat[.]” Id . at 467. Finally, in
the event of a methane ignition, any miners in the area would be exposed to the
hazard.

Further, the Judge properly disregarded
the operator’s evidence that the violative condition could not expose miners to
a hazard because it alleged that the continuous miner had LED lights. As the Judge
determined, there is no evidence in the record that this particular miner, in
fact, had LED lights. Furthermore, even if it did, nothing in the record
supports the operator’s contention that LED bulbs are “nearly intrinsically
safe” or that they could not cause a methane ignition. Id . at 465.

As discussed above, the proper inquiry is
whether the violation could have significantly and substantially contributed to
the cause and effect of a hazard. Here, substantial evidence supports the Judge’s
determination that the violative condition could significantly and
substantially contribute to the hazard of a methane explosion. Further,
substantial evidence supports the Judge’s determination that miners were, or
would have been, exposed to this hazard. As a result, we affirm the Judge’s determination
that the citation was properly cited as having an S&S contribution.

III.

Conclusion

For the foregoing reasons, we affirm the
Judge’s decision and direct Consol to pay the civil penalties ordered by the
Judge .

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/
Moshe Z. Marvit

Moshe Z. Marvit,
Commissioner

Chair Jordan concurring, in result:

I join my colleagues in affirming the
Judge’s findings and conclusion that Consol Pennsylvania Coal Company violated
the mandatory safety standard at 30 C.F.R. § 75.1725(a) and that the violative
condition was the result of a low degree of negligence.

I also affirm the Judge’s decision
upholding the “significant and substantial” (“S&S) designation accorded the
violations of the safety standards at 30 C.F.R. § 75.1725(a) and 30 C.F.R. §
75.503.  While I do not join the majority in their S&S analysis, I
appreciate their concern that the standard necessary to support an S&S
designation may have evolved so as to now approach the standard applied to an
imminently dangerous condition, and I have on occasion noted what I perceived
to be inconsistencies between the Commission’s S&S standard and Circuit
Court case law. See Peabody Midwest Mining , 42 FMSHRC 379, 393-99 (June
2020) (dissenting opinion); Newtown Energy , 38 FMSHRC 2033, 2051-53
(Aug. 2016) (concurring and dissenting opinion).

/s/
Mary Lu Jordan

Mary
Lu Jordan, Chair

Distribution:

Patrick
W. Dennison ,
Esq.

R.
Henry Moore, Esq.

Fisher & Phillips, LLP

Six PPG Place, Suite 830

Pittsburgh, PA 15222

[email protected]

[email protected]

Jennifer A. Ledig, Esq.

Office of the Solicitor, U.S.
Department of Labor

Division of Mine Safety &
Health

200
Constitution Avenue NW, Suite N4428

Washington,
DC 20210

[email protected]

Thomas
A. Paige, Esq.

Deputy
Associate Solicitor

US
Department of Labor

Office
of the Solicitor

Division
of Mine Safety and Health

200 Constitution Avenue NW, Suite N4428

Washington,
DC 20210

[email protected]

Melanie
Garris

US
Department of Labor/MSHA

Office
of Assessments, Room N3454

200
Constitution Ave NW

Washington,
DC 20210

[email protected]

Administrative
Law Judge Michael Young

Office
of the Chief Administrative Law Judge

Federal
Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

[email protected]

[1] Section 104(d)(1)
provides in relevant part:

If, upon any inspection of a coal or other
mine, an authorized representative of the Secretary finds that there has been a
violation of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause imminent
danger, such violation 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, . . . he shall include such finding in any citation given to
the operator under this Act.

30
U.S.C. § 814(d)(1).

[2] Spot Inspections are
conducted pursuant to section 103(i) at mines that “liberate excessive
quantities of methane or other explosive gases during operations” or at mines
where a methane ignition occurred that resulted in death or serious injury in
the last five years. 30 U.S.C. § 813(i). The Baily Mine is on a 5-Day spot
inspection cycle, the most aggressive required by law.

[3]
In Exhibit GX 3, the clevis is the u-shaped component. The keeper (horizontal)
pin slides through two ears on top of the clevis.

[4]
“Pan conveyor” is defined as “a conveyor comprising one or more endless chains
or other linkage to which usually overlapping or interlocking pans are attached
to form a series of shallow, open-topped containers. Bureau of Mines, U.S.
Department of the Interior, Dictionary of Mining, Minerals & Related
Terms , 790 (1968).

[5] Inspector Young
became an inspector in 2006 and worked in the mining industry for 22 years as a
longwall foreman. Tr. 24-28.

[6] The record does
indicate that each shield was 1.75 meters wide. Tr. 149. Accordingly, the width
of two shields would be 3.5 meters or approximately 11 feet. However, this measure
simply raises the possibility of drawing a different conclusion from the
evidence, which “does not prevent an administrative agency’s finding from being
supported by substantial evidence.” Sec’y of Labor on behalf of Wamsley v.
Mutual Min., Inc. , 80 F.3d 110, 113 (4th Cir. 1996) (citation omitted).

[7] In his decision, the Judge discussed the gravity analysis
as focused on the likelihood “of the expected resulting injury” assuming “the
occurrence of the hazard.” 44 FMSHRC at 452. Later, the Judge noted that “the
Secretary asserts that the hazard is reasonably likely” and concluded that
“credible evidence exists to support that the hazard—a projectile shear
pin—could occur.” Id. at 457.

[8] The operator does
not challenge the Judge’s finding of a violation.

[9] See, e.g. , San Juan Coal Co. , 29 FMSHRC 125,
130 (Mar. 2007) (considering on appeal unwarrantable failure factors not
specifically argued by a party or analyzed by the Judge because they were
intertwined with evidence relating to factors that were addressed); BHP
Copper, Inc. , 21 FMSHRC 758, 762 (July 1999) (concluding that points made
by the Secretary to Commission, while not identical to those made to the Judge,
were sufficiently related to those below to permit the Commission to consider
them under 30 U.S.C. § 823(d)(A)(iii)); Keystone Coal Mining Corp. , 16
FMSHRC 6, 10-11 n.7 (Jan. 1994) (accepting an argument as sufficiently related
to one made below because it enlarged the one made below).

[10] As discussed
below, the operator raises several arguments concerning the Judge’s analysis
with regards to likelihood in Citation No. 9204250.

[11] See 30 U.S.C. §
814(d)(1), supra note 1.

[12] Section 104(e)
provides MSHA with the ability to issue withdrawal orders in situations in
which a mine operator has demonstrated a pattern of S&S violations. Section
104(e) of the Mine Act provides that:

If an operator has a pattern of violations
of mandatory health or safety standards . . . which are of such nature as could
have significantly and substantially contributed to the cause and effect of
coal or other mine health or safety hazards, he shall be given written notice
that such pattern exists.

30
U.S.C. § 814(e)(1). Any operator so notified is subject to an order requiring
the immediate withdrawal of miners, if an inspection within 90 days discovers
any additional significant and substantial violations at the operator’s mine.
Any subsequent inspections that reveal significant and substantial violations
will result in further withdrawal orders, until the mine achieves an inspection
with no such violations. 30 U.S.C. §§ 814(e)(1), (2), (3).

[13] While the language is somewhat similar to the 1965 Amended
Act, the previous limitation of the significant and substantial language to
violations that contribute to “a mine explosion, mine fire, mine inundation, or
man-trip or man-hoist accident” was removed. Instead, the provision in the 1969
Act applied to any violation that contributed to a “mine safety or health
hazard.” The broadening of the language in this section mirrored Congress’s general
expansion of federal authority found throughout the Coal Act .

[14] Specifically,
that section states:

(e)(1) If an operator has a pattern of
violations of mandatory health or safety standards in the coal or other mine
which are of such nature as could have significantly and substantially
contributed to the cause and effect of coal or other mine health or safety
hazards, he shall be given written notice that such pattern exists. If, upon
any inspection within 90 days after the issuance of such notice, an authorized
representative of the Secretary finds any violation of a mandatory health or
safety standard which could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health hazard, the
authorized representative shall issue an order requiring the operator to cause
all persons in the area affected by such violation, except those persons
referred to in subsection (c), to be withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the Secretary determines that
such violation has been abated.

(2) If a withdrawal order with respect to
any area in a coal or other mine has been issued pursuant to paragraph (1), a
withdrawal order shall be issued by an authorized representative of the
Secretary who finds upon any subsequent inspection the existence in such mine
of any violation of a mandatory health or safety standard which could significantly
and substantially contribute to the cause and effect of a coal or other
mine health or safety hazard. The withdrawal order shall remain in effect until
an authorized representative of the Secretary determines that such violation
has been abated.

(3) If, upon an inspection of the entire
coal or other mine, an authorized representative of the Secretary finds no
violations of mandatory health or safety standards that could significantly
and substantially contribute to the cause and effect of a coal or other
mine health and safety hazard, the pattern of violations that resulted in the
issuance of a notice under paragraph (1) shall be deemed to be terminated and
the provisions of paragraphs (1) and (2) shall no longer apply. However, if as
a result of subsequent violations, the operator reestablishes a pattern of
violations, paragraphs (1) and (2) shall again be applicable to such operator.

(4) The Secretary shall make such rules as
he deems necessary to establish criteria for determining when a pattern of
violations of mandatory health or safety standards exists.

30 U.S.C. § 814(e) (Federal Mine Safety
and Health Act of 1977, Pub. L. 95-164 at §104(e)) (emphasis added).

[15] A review of the
actual use of patterns of violations by MSHA over 50 years shows that the
Commission’s concerns were misplaced. MSHA rarely cites operators under the
pattern of violation standard no matter what the Commission’s standard is for S&S
contribution to a hazard.

[16] It is important
to note that the term “reasonably serious” was created in National Gypsum
without discussion. The statute does not discuss “reasonably serious” injuries
and the Commission made no effort, at that time, to explain its decision to
include it. This is especially relevant as the current Commission test from Peabody
is replete with references to “reasonableness.”

[17] This formulation,
which was intended to clarify, has only added to the confusion through its
attempt at concision and the use of words with multiple meanings. A clearer
definition for “hazard” under the Mathies formulation would be the degree
of danger to a miner’s health or safety.

[18] For example, in
Sec’y of Labor v. Jim Walter Res ., 111 F.3d 913, 917 (D.C. Cir. 1997), the
D.C. Circuit clarified that Mathies Step 2 contains two separate
inquires: (1) whether there is a hazard to which the violation might contribute
and, if so, (2) whether the violation significantly and substantially
contributes to that hazard.

[19] More recently, in
Consol Pennsylvania Coal Company, LLC , 44 FMSHRC 691 (Dec. 2022), the
Commission affirmed a Judge’s S&S decision, citing both the Mathies
test and the Newtown language, while omitting mention of the Peabody
test.

[20] While Court of
Appeals have applied the Commission’s S&S test, none have expressly adopted
it or analyzed whether it is consistent with the Mine Act.

[21] It is difficult
to see how any examination violation, for instance, could ever be S&S under
the Peabody standard. And yet, examinations are central to the Mine
Act’s statutory scheme for preventing injury and illness to miners.

[22] When Congress was
concerned about injury or potential injury, it knew how to address that issue. For
instance, in section 110(b)(2) of the Mine Act, Congress defined a “flagrant”
violation as, “a reckless or repeated failure to make reasonable efforts to
eliminate a known violation of a mandatory health or safety standard that
substantially and proximately caused, or reasonably could have been expected to
cause, death or serious bodily injury.” 30 U.S.C. § 820(b)(2). If Congress
wanted the S&S language to address injuries or even the reasonable
potential for injuries, it could have used similar language in 104(d).

[23] When Congress
uses a term in one section of a statute but a different term in another, that
difference is presumed to be intentional. See, e.g. , Village of
Barrington, Ill v. Surface Transp. Bd ., 636 F.3d 650, 661 (D.C. Cir. 2011)
(citing Russello v. U.S ., 464 U.S. 16, 23 (1983)).

[24] Specifically, in Eastern Associated
Coal
the Board had required that the Secretary demonstrate that a violation “posed a
probable risk of serious bodily harm or death.” 3 IBMA at 334.

[25] Our decision here
is limited to the S&S test and does not concern other aspects of the
Commission’s S&S caselaw. For example, Commission cases stating the
necessity of assuming the existence of an emergency when considering an
emergency standard or cases stating the analysis should be conducted assuming
continued normal mining operations are not impacted. We are simply
reformulating the interpretation of section 104(d)(1) to follow the statutory
language.

[26] For a hazard to
“effect” miners, the Secretary must demonstrate that miners could be exposed to
the hazard during continued mining operations.

[27] In JWR , the
operator was cited for an S&S violation of a mandatory safety standard
prohibiting the accumulation of combustible materials in “active workings,” i.e. ,
“any place in a coal miner where miners are normally required to work or
travel.” Id . at 916. A ventilation curtain ran across the cited trash
pile, dividing it and placing the bulk of the pile outside of active workings. Id .
The Commission concluded that the trash outside of active workings was not
relevant to the S&S analysis. The D.C. Circuit agreed, stating that “[b]y
focusing the decisionmaker’s attention on ‘such violation’ and its ‘nature,’
Congress has plainly excluded consideration of surrounding conditions that do
not violate health and safety standards.” Id . at 917. Stated another
way, the S&S analysis requires the Judge to focus solely on the violative
conditions, and if those conditions “significantly and substantially”
contribute to any hazard that “might” exist. See 30 U.S.C. § 814(d)(1)
(“ [I]f
he also finds that, while the conditions created by such violation do not cause
imminent danger, such violation 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.”).

[28] The D.C. Circuit
has previously instructed that “an agency changing its course must supply a
reasoned analysis indicating that prior policies and standards are deliberately
changed not casually ignored.” Lone Mountain Processing, Inc ., 709 F.3d
1161, 1164 (D.C. Cir. 2013) (citing Greater Boston Television Corp ., 444
F.2d 841, 852 (D.C. Cir. 1970)). Our decision here today reflects the plain
meaning of section 104(d)(1) and is consistent with the decisions of the D.C.
Circuit.

For instance, ALJs should continue to
analyze citations in the context of continued mining operations and without
consideration of redundant safety measures. Similarly, citations of emergency
standards should still be considered in light of an emergency situation.

We also note that the effect of our
decision should not be to either increase or decrease the number of S&S
citations. That is a public policy question for the Secretary of Labor to
decide and for conditions in the nation’s mines to dictate. Our only role is to
ensure the S&S test used by the Commission is consistent with the language
of section 104(d)(1) of the Mine Act.

[29] Had the Judge
credited the operator’s testimony that miners were not in the area where the
vertical pin would be airborne under continued normal mining conditions, this
citation would not have been S&S under the plain language of section
104(d)(1). However, substantial evidence supports the Judge’s determination.

[30] While we apply
the interpretation of section 104(d)(1) announced above we note, in the
alternative, that even if we applied the now-discarded Peabody test, we
would have affirmed the Judge’s findings with respect to both citations for the
reasons set forth in his decision.