811 F.3d 148
4th Cir.2016Background
- MSHA inspected Knox Creek’s Tiller No. 1 Mine in Oct–Nov 2009 and issued 34 S&S citations; four are at issue: three "permissibility" citations for electrical enclosures with gaps > .004 inches, and one "accumulations" citation for 4–12" of coal dust on/near a conveyor.
- Tiller Mine is a "gassy" mine (liberates >500,000 cu. ft. methane/24 hrs); inspectors found wiring insulated/bolted but with corrosion/wear suggesting possible future arcing; equipment was to be used next shift.
- For the accumulations citation, pre-shift logs showed the accumulations were recorded and miners had been assigned to clean; at inspection (≈7:00 a.m.) no cleanup yet underway, miners arrived shortly thereafter and removed dust (~45 minutes).
- ALJ applied the four‑part Mathies test and concluded permissibility citations failed Mathies prong 3 (no proof ignition/arcing likelihood) and accumulations citation was not S&S because abatement was imminent; ALJ thus found three non‑S&S and one non‑S&S.
- The Federal Mine Safety & Health Review Commission granted discretionary review, reversed the ALJ on all four, holding the ALJ erred legally by (a) taking a "snapshot" view rather than considering normal operations and (b) treating intended-but-not-yet-begun abatement as mitigating.
- Fourth Circuit held (1) the Commission corrected legal error (did not reweigh factual findings), (2) adopted the Secretary’s persuasive interpretation of Mathies prong 3 (assume the hazard when evaluating likelihood of serious injury), (3) accepted that intended but not-yet-begun abatement does not mitigate S&S, and denied Knox Creek’s petition for review.
Issues
| Issue | Plaintiff's Argument (Knox Creek) | Defendant's Argument (Secretary) | Held |
|---|---|---|---|
| Whether, under Mathies prong 3, Secretary must prove ignition/arcing was reasonably likely (i.e., prove likelihood of the hazard itself) | Secretary must prove the violation itself was reasonably likely to cause injury, so likelihood of arcing/ignition is required | Mathies prong 3 concerns the likelihood that the hazard (assumed to exist) will cause injury; the existence of the hazard may be assumed when assessing whether it would cause serious injury | Court adopts Secretary’s persuasive interpretation: assume the hazard at prong 3; Commission’s S&S findings for permissibility citations supported by substantial evidence |
| Whether evidence of intended but not-yet-begun abatement can mitigate an S&S finding for accumulations | Pending/soon-to-begin cleanup is relevant and can show injury unlikely, so should mitigate S&S | Only active abatement (shutdown/ongoing repairs) should mitigate S&S; planned but not-yet-begun abatement is too speculative to negate risk | Court accepts Secretary/Commission: intended but not-yet-begun abatement is not mitigating; accumulations citation properly S&S |
| Whether the Commission impermissibly reweighed ALJ’s factual findings | Commission reweighed factual evidence and substituted its judgment for the ALJ | Commission corrected legal errors and did not disturb ALJ factual findings; review is legal not factual | Court finds Commission did not reweigh facts; it clarified legal standard and reversal was proper |
| Standard of deference owed to Secretary’s litigating positions interpreting Mathies/ Mine Act | Secretary’s litigating positions should get Chevron deference | Secretary’s litigating positions are entitled to deference under Skidmore (persuasive), not full Chevron, because they are litigation positions rather than APA rulemaking | Court holds Chevron deference not warranted for litigating positions; applies Skidmore factors and finds Secretary’s interpretation persuasive |
Key Cases Cited
- Peabody Midwest Mining, LLC v. Fed. Mine Safety & Health Review Comm'n, 762 F.3d 611 (7th Cir.) (Mathies prong 3 treated as assuming hazard and assessing injury likelihood)
- Cumberland Coal Res., LP v. Fed. Mine Safety & Health Review Comm'n, 717 F.3d 1020 (D.C. Cir.) (courts accept Secretary’s approach to Mathies; redundant safeguards irrelevant to S&S inquiry)
- RAG Cumberland Res. LP v. Fed. Mine Safety & Health Review Comm'n, 272 F.3d 590 (D.C. Cir.) (distinguishes legal-standard review from reweighing facts)
- A.T. Massey Coal Co. v. Holland, 472 F.3d 148 (4th Cir.) (discusses when Chevron deference applies and Mead considerations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations afforded weight according to their persuasive power)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for statutory ambiguity and agency deference)
- Mead Corp. v. United States, 533 U.S. 218 (2001) (distinguishes when Chevron applies vs. Skidmore)
- Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144 (1991) (deference to Secretary’s litigating positions discussed)