Consol Buchanan Mining Company v. Secretary of Labor , 841 F.3d 642 ( 2016 )


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  •                                 PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-1321
    CONSOL BUCHANAN MINING COMPANY, LLC,
    Petitioner,
    v.
    SECRETARY OF LABOR; FEDERAL MINE SAFETY & HEALTH REVIEW
    COMMISSION; FEDERAL MINE SAFETY & HEALTH ADMINISTRATION,
    Respondents.
    On Petition for Review of an Order of the Federal Mine Safety
    and Health Review Commission. (VA 2013-190)
    Argued:   September 22, 2016                 Decided:   November 10, 2016
    Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
    Petition for review denied by published opinion.  Judge Wynn
    wrote the opinion, in which Judge Wilkinson and Judge Duncan
    joined.
    ARGUED: Billy Ray Shelton, JONES, WALTERS, TURNER & SHELTON
    PLLC, Lexington, Kentucky, for Petitioner.      Cheryl C. Blair-
    Kijewski,  UNITED   STATES   DEPARTMENT  OF   LABOR,   Arlington,
    Virginia, for Respondents.    ON BRIEF: Randall C. Eads, EADS &
    EADS, Abingdon, Virginia, for Petitioner.     M. Patricia Smith,
    Solicitor of Labor, Office of the Solicitor, Washington, D.C.,
    Heidi W. Strassler, Associate Solicitor, Office of Civil Penalty
    Compliance, MSHA, W. Christian Schumann, Appellate Litigation,
    UNITED STATES DEPARTMENT OF LABOR,   Arlington,   Virginia,   for
    Respondent, Secretary of Labor.
    2
    WYNN, Circuit Judge:
    Following     a    fatal    accident       in    a   coal     mine    operated      by
    Consol Buchanan Mining Co. (“Consol”), the Federal Mine Safety
    and Health Review Commission (the “Commission”) determined that
    the accident resulted from Consol’s “unwarrantable failure” to
    ensure that certain equipment in the mine was maintained in a
    safe, working condition.              Seeking review by this Court, Consol
    argues that it lacked notice that hazardous conditions in the
    mine   violated      applicable       mine       safety     regulations.          Further,
    Consol asserts       that    the     agency      erred      in   concluding       that    the
    company demonstrated aggravated negligence in failing to rectify
    evident     safety       concerns.        We      disagree       and     therefore       deny
    Consol’s petition for review.
    I.
    A.
    Consol operates a large underground coal mine in Buchanan,
    Virginia.      On    January       11,    2012,        acting      Shift    Foreman      Lynn
    Semones directed Section Foreman Gregory Addington and miners
    David Green and Joseph Saunders to move a shuttle car from one
    part of the mine to another.                      In general, foremen were not
    assigned to assist with such a move.                        Recognizing Addington’s
    lack of experience moving equipment, however, Semones assigned
    Addington    to    oversee     this      particular         move    to     “get   him    some
    3
    experience”     with    the    process.        J.A.   656.     Semones      directed
    Addington to “[f]ollow [Green and Saunders], learn from them,
    [and] help them [move the car] through tight places.”                     Id.
    At the time of the accident, a six-inch water supply line
    ran along the mine floor immediately adjacent to the trackway on
    which     miners     moved     equipment      through    the    mine.           Though
    originally situated above the mine floor, this waterline was
    effectively     buried   by    the     accumulation     of   years   of    dust      and
    debris from the mine.          As the mine’s main water supply, the line
    supplied water for various uses throughout the mine, including
    firefighting and the suppression of coal dust generated through
    the mining process.
    To enable these distinct uses, multi-outlet water manifolds
    were installed at regular intervals along the line.                        Connected
    to each manifold were valves, each of which could be adjusted to
    control the flow of water for a designated purpose.                    Separately,
    to stem the flow of water entirely, the main six-inch waterline
    included larger shutoff valves.               These valves were arranged in a
    “ladder    system,”     such    that    three    separate    valves     had     to    be
    closed to fully stop the flow of water to a particular section
    of the line.       J.A. 40.
    Due to their proximity to the trackway, machinery regularly
    struck    the      manifolds    and     valves    extending     from      the     main
    waterline as the machinery moved through the mine.                    Though aware
    4
    that fire valves were occasionally damaged by moving equipment,
    Semones did not instruct Addington on how to respond to such an
    incident, instead relying on the miners’ prior experience to
    ensure   that    the    move     was    accomplished    safely.        Nonetheless,
    aware of the possibility that the passing shuttle car may damage
    a    protruding      valve,       Addington       looked    unsuccessfully       for
    replacement valves before joining the move crew.
    B.
    Soon after the crew began to move the shuttle car, the car
    struck a fire valve connected to a manifold extending from the
    main waterline, breaking the valve in two and leaving a fountain
    of   water    shooting    from    the    manifold.       While   Addington   dried
    himself, Green and Saunders set about to stop the flow of water
    and repair the broken valve.                   To do so, Green and Saunders,
    along with a third miner, first sought to close the shutoff
    valves   on    the   main   six-inch       waterline.       Because     Consol   had
    removed the “leverage bars” provided by the valve manufacturer
    to   assist     in   opening      and     closing     the   valves,    the   miners
    attempted to close the valve using a nearby steel bar.
    As the miners worked to close the shutoff valves, Addington
    contacted     Semones     to     report    the      accident.     Semones    later
    recounted     that   he   directed       Addington     to   continue    moving   the
    shuttle car to allow a second crew to repair the damaged valve.
    5
    Addington testified, however, that he did not hear Semones’s
    instruction.     At any rate, rather than following this direction,
    Addington returned to the scene of the accident and found Green
    and   Saunders    working     to   reassemble    the     broken   fire   valve.
    Assuming   the   miners     knew   how   to   repair   the   valve,   Addington
    watched as Green and Saunders worked to reattach the valve to
    the manifold.
    Unfortunately, due to the accretion of debris on the main
    waterline, the miners were unable to fully close one of the
    shutoff valves.     With the valve partially open, water continued
    to flow through the manifold as the miners attempted to reattach
    the broken fire valve. 1      At the same time, the dislocation of the
    fire valve from the manifold damaged the valve’s threading such
    that it could no longer bear the level of water pressure it was
    designed to withstand.         Although the miners visually inspected
    the   threading     before     attempting       to     reattach    the   valve,
    investigators later determined that the damage to the threading
    was difficult to detect without magnification.                    Saunders was
    unable, however, to reattach the valve by hand and instead used
    a pipe wrench to attempt to tighten the valve into place.
    Ultimately, the damage to the threading, coupled with the
    building water pressure, caused the valve to fail.                As a result,
    1Addington later testified that he believed that water
    flowing through the manifold was simply a reservoir in the
    waterline that remained after the shutoff valves were closed.
    6
    the   valve   was    suddenly    ejected        from       the   manifold,       striking
    Saunders    and   fatally    injuring      him.        A    Mine    Safety       &    Health
    Administration (“MSHA”) investigator who arrived at the scene
    soon thereafter observed a fountain of water flowing from the
    manifold and concluded that one of the shutoff valves was not
    fully closed.        Upon further inspection, the investigator noted
    that the shutoff valve remained visually and audibly (that is,
    making a hissing sound) open.                  A more extensive MSHA inquiry
    followed,     with    investigators        concluding            that     the    accident
    resulted from the failure to ensure that the shutoff valve was
    fully closed before attempting to reattach the inoperable fire
    valve.
    C.
    Following its investigation, MSHA petitioned the Commission
    to assess civil penalties against Consol for violations of two
    mine safety regulations: (1) 
    30 C.F.R. § 75.1725
    (a) (the “Mining
    Equipment Rule”), which requires mine operators to remove unsafe
    mining    machinery    or   equipment      from    service,         for     reusing        the
    damaged    fire     valve   after    it   was     dislocated         from       the    water
    manifold; and (2) 
    30 C.F.R. § 75.1100-3
     (the “Fire Equipment
    Rule”),     which     requires      all    firefighting            equipment          to   be
    maintained in a usable and operative condition, for failing to
    ensure leverage bars were available to be used to close the
    7
    shutoff valves and otherwise failing to ensure that the valves
    could be fully closed.
    After      conducting        an    evidentiary             hearing,        at    which    the
    parties presented testimony from MSHA inspectors and the miners
    involved     in      the   accident,           an       MSHA   Administrative           Law     Judge
    (“ALJ”) upheld the investigators’ findings and concluded that
    each   of    the      violations         stemmed         from     Consol’s        “unwarrantable
    failure”       to     comply       with       the        identified      MSHA       regulations.
    Pursuant     to      Section      104(d)(1)         of     the    Mine     Act,    
    30 U.S.C. § 814
    (d)(1), the ALJ imposed a civil penalty of $70,000 for each
    violation.        The Commission subsequently denied Consol’s petition
    for discretionary review, and the ALJ’s decision thus became a
    final Commission order on March 4, 2015.
    Consol now petitions this Court for review and challenges
    the Commission’s final order on three grounds.                                      First,       the
    company     contends        that    it        lacked       fair      notice   that       using    an
    inoperable        shutoff      valve          violated         the    Fire    Equipment          Rule
    because     MSHA     had    not    previously            cited       Consol   for      failing    to
    ensure that shutoff valves on the mine’s central waterline could
    be closed.          Second, asserting that Addington was not responsible
    for supervising Green and Saunders in their efforts to repair
    the damaged fire valve, Consol challenges the ALJ’s conclusion
    that    Addington          served        as     Consol’s          agent,      such      that     any
    negligence attributable to him may be imputed to Consol.                                       Last,
    8
    Consol   contests     the     ALJ’s    ultimate    finding       that   Consol
    demonstrated     heightened    negligence   in    failing   to   comply   with
    applicable MSHA regulations.
    II.
    Because the Commission adopted the ALJ’s factual findings,
    we review those findings under a substantial evidence standard.
    Knox Creek Coal Corp. v. Sec’y of Labor, Mine Safety & Health
    Admin., 
    811 F.3d 148
    , 157 (4th Cir. 2016); see also 
    30 U.S.C. § 816
    (a)(1)      (providing     that    the   Commission’s      findings     are
    “conclusive” if they are “supported by substantial evidence on
    the record considered as a whole”).          Substantial evidence means
    “such relevant evidence as a reasonable mind might accept as
    adequate to support a conclusion.”           Almy v. Sebelius, 
    679 F.3d 297
    , 301 (4th Cir. 2012) (internal quotations omitted) (quoting
    Consol. Edison Co. v. NLRB, 
    305 U.S. 197
    , 229 (1938)).                      We
    review   the   Commission’s    legal    conclusions   de    novo,   affording
    deference when appropriate to the Secretary's interpretations of
    ambiguous statutory language.          Knox Creek Coal, 811 F.3d at 157
    (citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc., 
    80 F.3d 110
    , 113–15 (4th Cir. 1996)).
    9
    A.
    Congress enacted the Mine Act to address the “urgent need
    to provide more effective means and measures for improving the
    working conditions and practices” in the nation’s mines.                              
    30 U.S.C. § 801
    (c).         In so doing, Congress made plain that the
    “first priority and concern of all in the coal . . . mining
    industry must be the health and safety of its most precious
    resource—the     miner.”     
    Id.
           §     801(a).     To    that   end,    Congress
    explained that mine operators “have the primary responsibility
    to   prevent    the    existence       of”    dangerous       conditions     in   their
    mines.    Id. § 801(e).      The Act also authorizes the Secretary of
    Labor to adopt “mandatory health or safety standards for the
    protection of life and prevention of injuries in coal or other
    mines.”   Id. § 811(a).
    Promulgated pursuant to this rulemaking authority, the Fire
    Equipment Rule requires mine operators to ensure that “[a]ll
    firefighting     equipment    .    .    .    be   maintained     in   a    usable    and
    operative condition.”        
    30 C.F.R. § 75.1100-3
    .               MSHA regulations
    explicitly include “waterlines” among designated “firefighting
    equipment” that must be installed in all covered mines.                        See 
    id.
    § 75.1100-1(a) (requiring lines capable of delivering 50 gallons
    of water a minute at a nozzle pressure of 50 pounds per square
    inch).    Similarly, the Mining Equipment Rule provides that all
    “[m]obile      and    stationary       machinery       and    equipment      shall    be
    10
    maintained         in        safe       operating       condition           and       machinery      or
    equipment         in    unsafe       condition      shall       be     removed        from    service
    immediately.”           Id. § 75.1725(a).
    The     Mine      Act        further      authorizes          the    Secretary,          acting
    through MSHA, to conduct inspections to assess compliance with
    mine safety regulations.                        
    30 U.S.C. § 813
    (a).                   Beyond these
    regular inspections, the Act mandates quarterly inspections of
    each   underground             coal      mine     “in    its     entirety.”             
    Id.
            MSHA
    inspectors         are       responsible          for        issuing       citations         for   any
    identified violations and otherwise assisting mine operators in
    complying with applicable regulations.                               
    Id.
     §§ 813(a), 814(a).
    Where,    as      here,       investigators         determine          that       a   violation      is
    either       “of        such        a    nature         as     could        significantly           and
    substantially contribute to the cause and effect of a . . . mine
    safety       or        health        hazard”       or        otherwise        “caused         by     an
    unwarrantable failure of [the] operator to comply with [MSHA]
    mandatory health or safety standards,” these findings must be
    included     in        any    resulting         citation       and    may    lead      to    enhanced
    penalties and other potential sanctions.                               See id. §§ 814(d)(1),
    (d)(2), (e).
    B.
    Consol first contends that it lacked adequate notice that
    MSHA     interpreted           the       Fire    Equipment           Rule    to       require      mine
    11
    operators to maintain shutoff valves on central waterlines in
    operable condition.           As a result, Consol asserts that it was
    deprived    of    due    process     before    facing    civil      penalties    for
    failing to ensure that the damaged shutoff valve at issue here
    could be fully closed.         We disagree.
    The    Due   Process      Clause   of    the   Fifth    Amendment    protects
    parties from being deprived of property without fair notice.
    U.S. Const. amend. V; United States v. Hoechst Celanese Corp.,
    
    128 F.3d 216
    , 224 (4th Cir. 1997).                  For this reason, and in
    light of the “quasi-criminal” nature of civil penalties, we have
    long recognized that “parties subject to . . . administrative
    sanctions are entitled to . . . ‘clear notice’” of what conduct
    is proscribed by a regulation before being subject to monetary
    penalties for a particular violation.                  
    Id.
     (quoting First Am.
    Bank of Va. v. Dole, 
    763 F.2d 644
    , 651 n.6 (4th Cir. 1985)).
    Whether a sanctioned party had adequate notice of a particular
    violation   turns       on   the   “relevant   facts    of   each    case.”     
    Id.
    (citing United States v. Bennett, 
    984 F.2d 597
    , 605 (4th Cir.
    1993)).
    Here, the ALJ explained that the Consol’s violation of the
    Fire Equipment Rule involved two interrelated issues.                         First,
    and most significantly, accumulated material on the exterior of
    a shutoff valve on the main six-inch waterline prevented the
    valve from fully closing, permitting water to continue to flow
    12
    into the damaged manifold as the miners attempted to reassemble
    the severed fire valve.                  Second, lacking manufacturer-provided
    leverage bars, the miners were unable to close the valve fully
    before attempting to reinstall the fire valve.
    The parties agree that, prior to the accident, MSHA never
    alerted Consol that the agency viewed the condition of shutoff
    valves in the mine as a violation of the Fire Equipment Rule.
    Absent       explicit       prior    notice,           the    Commission         employs     a
    “reasonably         prudent      miner”     test       to     determine     whether        the
    operator nonetheless had sufficient notice of the risk of civil
    penalties      arising      from     a    violative          condition.      DQ     Fire     &
    Explosion      Consultants,         Inc.,    
    36 FMSHRC 3083
    ,    3087–88     (Dec.
    2014); LaFarge N. Am., 
    35 FMSHRC 3497
    , 3499–500 (Dec. 2013).
    Under       this     standard,      the     Commission         considers     “whether        a
    reasonably prudent person familiar with the mining industry and
    the protective purposes of the standard would have recognized
    the specific prohibition or requirement of the standard.”                                   DQ
    Fire    &    Explosion      Consultants,          36    FMSHRC      at    3087    (internal
    quotations omitted) (quoting Ideal Cement Co., 
    12 FMSHRC 2409
    ,
    2416 (Nov. 1990)).
    Although we have yet to adopt the reasonably prudent miner
    test,    our       Sister   Circuits      have     used      this   objective      test     in
    considering whether MSHA regulations provide adequate notice of
    proscribed conduct.            See, e.g., Black Beauty Coal Co. v. Fed.
    13
    Mine Safety & Health Review Comm'n, 
    703 F.3d 553
    , 558 (D.C. Cir.
    2012); Mainline Rock & Ballast, Inc. v. Sec'y of Labor, 
    693 F.3d 1181
    , 1187 (10th Cir. 2012); Stillwater Min. Co. v. Fed. Mine
    Safety & Health Review Comm'n, 
    142 F.3d 1179
    , 1182 (9th Cir.
    1998).    This test’s emphasis on the reasonably foreseeable scope
    of regulatory directives derives in part from the recognition
    that   administrative       agencies    tasked      with   carrying        out   wide-
    ranging    health     and   safety     statutes     cannot    anticipate         every
    danger that may arise under their purview.                   See Freeman United
    Coal Min. Co. v. Fed. Mine Safety & Health Review Comm’n, 
    108 F.3d 358
    , 362 (D.C. Cir. 1997).
    By the same token, a rule requiring explicit notice of any
    conceivable violation as a condition of imposing civil sanctions
    would leave open “large loopholes allowing conduct which should
    be regulated to escape regulation.”                 
    Id.
     (internal quotations
    omitted) (quoting Ray Evers Welding Co. v. OSHRC, 
    625 F.2d 726
    ,
    730    (6th    Cir.     1980));    Phillips    v.    Interior        Bd.    of    Mine
    Operations      Appeals,     
    500 F.2d 772
    ,    778     (D.C.     Cir.      1974)
    (“Sporadic federal inspections can never be frequent or thorough
    enough    to   insure    compliance.”).       Such    a    rule   likewise       would
    contradict Congress’s admonition that miners and mine operators
    themselves     are    primarily    responsible      for    ensuring    that      their
    mines are safe.         
    30 U.S.C. § 801
    (e); Power Fuels, LLC v. Fed.
    Mine Safety & Health Review Comm'n, 
    777 F.3d 214
    , 217 (4th Cir.
    14
    2015); see          also    Dickenson-Russell           Coal      Co.,    LLC     v.    Sec'y      of
    Labor, 
    747 F.3d 251
    , 254 (4th Cir. 2014) (observing that a rule
    holding MSHA inspectors principally responsible for mine safety
    “would be manifestly unreasonable and unjustified in light of
    the    clear    Congressional            purpose      to    ensure       that     the    primary
    responsibility         for       safety    remains         with    the     mine    owners       and
    miners”) (internal quotations and alterations omitted) (quoting
    Myers v. United States, 
    17 F.3d 890
    , 904 (6th Cir. 1994))).                                     For
    these    reasons,          we    agree    with    the      Commission       and    our       Sister
    Circuits that MSHA regulations that permit a reasonably prudent
    person    familiar         with    the    mining      industry       and    the     health      and
    safety objectives of the Mine Act to determine what conduct is
    required       or     prohibited          provide       sufficient         notice       to    mine
    operators       to     satisfy           due     process       and       support       potential
    sanctions.
    Acknowledging that this objective standard applies, Consol
    nonetheless argues that it lacked fair notice that its conduct
    violated the Fire Equipment Rule in this case.                                  Specifically,
    Consol     argues      that       MSHA     inspectors        were     aware       that       Consul
    removed leverage bars provided by the shutoff valve manufacturer
    soon after the valves were installed.                        Yet, according to Consol,
    MSHA    inspectors         had    never    identified        the     bars’      absence       as   a
    violation      of     the       rule   prior     to   the    accident.            According        to
    Consol, the agency’s failure to identify this known condition as
    15
    a    violation     left       Consol       without      fair         notice         that       failing      to
    provide the bars would result in civil sanctions.
    In support, Consol notes that the Commission has held that
    prior      inconsistent         enforcement            has       a       role,          in    appropriate
    circumstances, in determining whether a mine operator has fair
    notice of a potential violation.                        See Alan Lee Good, 
    23 FMSHRC 995
    , 1005 (Sept. 2001) (explaining that “the consistency of the
    agency’s     enforcement”            is    one    of    a    “wide            variety         of       factors”
    considered by the Commission).                         We agree that an affirmative
    statement        from    a    regulatory         body       empowered              to    implement          and
    enforce     a    particular          regulatory         scheme           may       be    sufficient          to
    deprive      regulated          parties          of     clear            notice          of        a     later,
    conflicting       interpretation.                See    Hoechst               Celanese        Corp.,        
    128 F.3d at 224-27
     (finding lack of fair notice where state agency
    exercising        delegated          federal          authority               provided            waiver    of
    federal     air    quality       standards            based      on       interpretation                  later
    rejected by federal regulators).
    Here,     however,       Consol       asks      us     to         go    a    step      further        by
    suggesting        that       prior    inaction         is    sufficient                 to    deprive       an
    operator of notice.             We decline to do so.                          As previously noted,
    it    is   the    operator       that       bears       principal              responsibility               for
    providing        safe    working          conditions        in       a    mine.              
    30 U.S.C. § 801
    (e).          Although      MSHA        investigators             are       required            to    issue
    citations for known violations, 
    id.
     §§ 813(a), 814(a), Consol
    16
    offers     no     support     for       the    proposition          that,     absent         prior
    enforcement,        the     agency       is     precluded           from    seeking          civil
    penalties       related     to      a    particular          violation.           Quite        the
    opposite: because even the most stringent investigation may fail
    to identify every potential violation, the objective test we
    adopt    today      ensures      that     MSHA      may      take    action       to     correct
    violations that would be apparent to a reasonably prudent miner.
    Moreover, although the lack of leverage bars contributed to
    the     miners’     inability       to    close        the    valve        fully,      the     ALJ
    concluded that the “sole reason the valve did not close . . .
    was the accumulation of material around the handle stop.”                                     J.A.
    858 (emphasis added).               In fact, investigators determined after
    the accident that the valve could not be fully closed even under
    significant force.          For this reason, MSHA’s failure to recognize
    the absence of leverage bars prior to the accident does not call
    into question the ALJ’s finding that a reasonably prudent miner
    would have recognized that an inoperable shutoff valve must be
    replaced under MSHA’s Fire Equipment Rule.
    Resisting    this     conclusion,           Consol    argues       that     it    lacked
    notice     that      the    shutoff           valves       themselves        qualified          as
    “firefighting        equipment”          within      the      meaning       of    the        rule.
    Specifically, Consol emphasizes that the valves control the flow
    of water through the mine’s central waterline, which delivers
    water    for    a   variety      of      purposes      throughout          the    mine.         In
    17
    Consol’s view, the valves thus do not qualify as “firefighting
    equipment” and, to the extent that MSHA now contends that they
    do, Consol lacked notice that the agency interpreted the Fire
    Equipment Rule to encompass the valves.
    As an initial matter, we reject Consol’s contention that
    shutoff valves on a mine’s central waterline do not qualify as
    “firefighting equipment.”     There is ample evidence in the record
    to demonstrate that such valves are an integral element of a
    mine’s fire suppression system.     For example, the ALJ noted that
    the valve involved in the accident at issue was included on the
    mine’s fire protection map.       Further, as previously explained,
    MSHA regulations specifically include waterlines among required
    firefighting equipment, with MSHA requiring that these lines be
    capable of delivering specified flow-rates to ensure that fires
    may be effectively extinguished.       
    30 C.F.R. § 75.1100-1
    (a).     At
    oral argument, counsel for Consol acknowledged that, had miners
    been unable to fully open a shutoff valve, the flow of water may
    fall    below   these   minimum   thresholds,   violating   the    Fire
    Equipment Rule.     Much the same, here, damage to the shutoff
    valve led directly to a catastrophic failure of the fire valve,
    which Consol acknowledges constitutes a piece of “firefighting
    equipment.”     For this reason, Consol’s effort to distinguish
    between covered waterlines and the valves that control the flow
    of water through those lines is unavailing.
    18
    Moreover, we are unpersuaded that Consol lacked fair notice
    that the failure to replace an inoperable shutoff valve would
    violate the       Fire      Equipment          Rule.      Unlike    the    leverage         bars,
    Consol does not suggest that MSHA was aware that shutoff valves
    could    not    be     fully    closed.           On   the      contrary,      the    evidence
    demonstrates         that      the    valve’s          defective       condition           became
    reasonably apparent only after miners attempted to close the
    valves    at    the    time     of    the       accident.        Nonetheless,         Consol’s
    assertion       that    the     ALJ     improperly           focused      on    the    moments
    immediately preceding the accident misses the mark.                               Indeed, it
    is likely often the case that the specific conditions rendering
    a   piece    of      equipment       inoperable        become      apparent      only       under
    certain     circumstances.            As       such,     that    neither       MSHA    nor    the
    operator       previously       noted      a    particular       violation       has       little
    bearing on whether, upon realizing that a valve could not be
    fully closed, a reasonably prudent miner would recognize that
    the valve was inoperable and must be removed from service.
    In sum, the record evidence demonstrates that a reasonably
    prudent     miner      would    recognize         that    using     inoperative        shutoff
    valves    violated       MSHA    regulations           and    placed    miners        at    risk.
    Consequently, Consol had fair notice that the failure to replace
    defective shutoff valves raised the possibility of sanctions,
    and MSHA is therefore not barred from seeking civil penalties in
    connection with this violation.
    19
    C.
    Consol next challenges the ALJ’s conclusion that Addington
    was acting as Consol’s agent at the time of the accident, such
    that any negligence attributable to him in connection with the
    accident may be imputed to Consol.                   Again, Consol is mistaken.
    Under the Mine Act, a mine operator may be held responsible
    for the knowledge and negligence of any person who qualifies as
    the operator’s “agent” within the meaning of the statute.                             See
    Capitol Cement Corp. v. Sec’y of Labor, Mine Safety & Health
    Admin., 
    229 F.3d 1141
    , 
    2000 WL 1205389
     at *4 (4th Cir. 2000)
    (per curiam) (citing Sec’y of Labor v. Southern Ohio Coal Co., 
    4 FMSHRC 1458
    , 1463 (Aug. 1982)).                    The Act defines “agent” to mean
    “any person charged with responsibility for the operation of all
    or a part of a coal or other mine or the supervision of the
    miners in a coal or other mine.”                   
    30 U.S.C. § 802
    (e).
    We     have    explained        that    this    “broad     definition   of     agent
    indicates that Congress did not intend to limit the vicarious
    liability      of    an   owner       or   lessee     to   common   law    concepts    of
    agency.”      Bituminous Coal Operators’ Ass’n v. Sec’y of Interior,
    
    547 F.2d 240
    ,    247      (4th    Cir.    1977).       And,    in    applying    this
    definition, the Commission and other Circuits have focused on
    whether       the     miner       exercised          managerial      or     supervisory
    responsibilities          at     the       time      of    his   negligent     conduct.
    Martin Marietta Aggregates, 
    22 FMSHRC 633
    , 637-38 (May 2000));
    20
    see also Original Sixteen to One Mine, Inc. v. Fed. Mine Safety
    & Health Admin., 175 F. App’x 825, 827 (9th Cir. 2006).
    Applying        this       standard         here,      the     ALJ    concluded         that
    Addington      served      as    a   supervisor—and           therefore         was    Consol’s
    “agent”—when        he     oversaw        the    miners’      efforts      to    repair       the
    damaged    fire     valve.           In    reaching         this    conclusion,        the    ALJ
    acknowledged        that    Addington           had   never       overseen      an    equipment
    move, but noted that Semones expected Addington to act as a
    foreman during the move.                    The ALJ further observed that the
    other testifying miners referred to Addington as the “boss” and
    agreed that he was in charge of Green and Saunders as they moved
    the shuttle car through the mine.                      J.A. 855.          Finally, the ALJ
    rejected the Consol’s suggestion that, because Addington lacked
    experience moving equipment, he was not in a position to oversee
    Green    and    Saunders        as   they       attempted      to    repair      the    damaged
    valve.         To   so     hold,     the        ALJ   explained,      would      allow       mine
    operators to avoid liability by assigning untrained foreman to
    oversee tasks with which they are unfamiliar.
    On     appeal,        Consol         renews      its     argument       that,     lacking
    experience moving equipment, Addington was not in a position to
    act as a supervisor at the time of the accident.                             Consol further
    notes that miners frequently moved equipment through the mine
    without the assistance of a foreman, and Addington was assigned
    to assist Green and Saunders merely to act as an “extra set of
    21
    eyes” and learn more about moving equipment through the mine.
    Appellant’s Br. at 16.          In light of this evidence, Consol faults
    the    ALJ’s    “conclusory”    finding          that      Addington   was     acting    as
    Consol’s agent at the time of the accident and suggests that the
    ALJ    simply    assumed      that,    as        a    foreman,      Addington    was     by
    definition an agent within the meaning of the Mine Act.                              
    Id. at 17
    .
    We disagree.       The ALJ’s conclusion that Addington acted as
    Consol’s agent      in    responding        to       the   damaged    valves    is    amply
    supported by the evidence.              Importantly, to determine whether
    Addington’s negligence may be imputed to Consol, the parties
    agree that we must consider whether he “exercised managerial
    responsibilities         at   the     time           of    his    negligent     conduct.”
    Martin Marietta Aggregates, 22 FMSHRC at 638 (citing Rochester &
    Pittsburgh Coal Corp., 
    13 FMSHRC 189
    , 194 (Feb. 1991)).                          In this
    light,   Consol    misplaces        reliance          on   Addington’s      authority    to
    direct the movement of the shuttle car.                          Instead, the relevant
    question is whether the ALJ properly held Consol responsible for
    Addington’s failure to recognize the danger presented by the
    damaged valves and subsequent failure to respond appropriately
    to that danger.         Pocahontas Fuel Co. v. Andrus, 
    590 F.2d 95
     (4th
    Cir.    1979)    (per    curiam)      (upholding           MSHA    orders     attributing
    knowledge of rank-and-file miner assigned to conduct pre-shift
    safety examination to operator).
    22
    With    this        in   mind,     testimony    elicited      from    the   miners
    provides     significant         support       for   the   ALJ’s     findings.        In
    particular, although Semones testified that he did not expect
    Addington to direct Green and Saunders as they moved the shuttle
    car, he acknowledged that he expected Addington to act as a
    foreman during the move.                 Semones testified that he expected
    Addington to assign tasks to the other miners; ensure compliance
    with company policies; remind the other miners to wear safety
    gear; and, most important, alert Semones in the event of an
    emergency.         See    J.A.   686-89.         Similarly,   although       Green    and
    Saunders     did    not       await     instructions       from    Addington     before
    attempting to reassemble the broken fire valve, Green testified
    that he would not have ignored instructions from Addington and
    would have stopped working to repair the valve if Addington had
    directed him to do so.                  Thus, Green testified that, because
    Addington    did    not       provide    any   direction     to    the    contrary,   he
    assumed Addington approved of the miners’ efforts to reattach
    the valve.
    In the end, Green’s testimony that he would have followed
    Addington’s instructions in the most critical moments preceding
    the accident—that is, while the miners attempted to repair the
    damaged fire valve—supports the ALJ’s finding that Addington was
    acting as a supervisor “at the time of his negligent conduct.”
    Original Sixteen to One Mine, 175 F. App’x at 827.                           Likewise,
    23
    Addington’s testimony that he contacted Semones to report the
    damaged        valve      indicates       that        he     understood          that      he    was
    responsible for managing the miners’ response.                             Finally, the ALJ
    correctly dismissed Consol’s suggestion that, because Addington
    failed      to    supervise      Green    and      Saunders         more   closely         as    they
    attempted to repair the valve, he cannot be viewed as Consol’s
    agent.
    As        such,        substantial        evidence           supports         the        ALJ’s
    conclusions,           and    therefore     those       conclusions         are      conclusive.
    Almy, 
    679 F.3d at 301-02
    .                   Accordingly, because Addington was
    acting      as     Consol’s       agent     in        connection      with       the       accident
    response, the ALJ properly imputed his knowledge and negligence
    in connection with the accident to Consol.
    D.
    Finally, Consol contests the ALJ’s finding that both of the
    violations         resulted       from    Consol’s           unwarrantable           failure      to
    comply      with       MSHA     regulations.            As    noted,       we    review         these
    findings         “to   determine     if     they       are   supported          by   substantial
    evidence in the record.”                  Windsor Coal Co. v. Sec’y of Labor,
    
    166 F.3d 337
     (4th Cir. 1998) (per curiam) (citing authorities).
    Under § 104(d) of the Mine Act, civil sanctions resulting
    from     the      failure       to   comply        with      MSHA     health         and     safety
    regulations         are      determined     based       on    the    significance           of    the
    24
    violation        and     the           degree   of        negligence          exhibited      by     the
    operator.        See 
    30 U.S.C. § 814
    (d)(1).                         Violations found to be
    “significant           and       substantial”         or     to     have      resulted      from     an
    operator’s           “unwarrantable             failure”           to        comply       with     MSHA
    regulations lead to increased fines and other penalties.                                         
    Id.
     §§
    814(d); 
    30 C.F.R. § 100.3
    (a), (d), (e); Knox Creek Coal, 811
    F.3d at 153; Eagle Energy, Inc. v. Sec’y of Labor, 
    240 F.3d 319
    ,
    321-22 (4th Cir. 2001).
    Here, the ALJ found that both of the charged violations
    resulted        from    Consol’s           unwarrantable           failure         to    comply    with
    applicable MSHA regulations. 2                    In so doing, the ALJ considered a
    variety of “aggravating factors” identified by the Commission as
    relevant        to   determining            whether        an     operator         demonstrates      at
    least a “serious lack of reasonable care” in failing to abide by
    a particular regulation.                   J.A. 844.
    In    general,             an    “unwarrantable           failure”       involves     “conduct
    that is ‘not justifiable’ or is ‘inexcusable,’” Windsor Coal
    Co., 166 F.3d at 337 (quoting Sec’y of Labor v. S & H Mining,
    Inc.,      
    15 FMSHRC 2387
    ,     2390      (1993))—that            is,    an    operator’s
    “aggravating            conduct            constituting             more           than     ordinary
    negligence,” Eagle Energy, 
    240 F.3d at 321-22
    .                                      The Commission
    has     identified           a        variety   of        factors       to    be    considered       in
    2The ALJ also found that each of the charged violations was
    significant and substantial, and Consol does not contest that
    finding on appeal.
    25
    determining        whether      a    violation          constitutes        an   unwarrantable
    failure to comply.              These factors include: “(1) the extent of
    the    violative         condition,        (2)     the    length      of    time       that    the
    violative condition existed, (3) whether the violation posed a
    high degree of danger, (4) whether the violation was obvious,
    (5) the operator’s knowledge of the existence of the violation,
    (6) the operator’s efforts in abating the violative condition,
    and (7) whether the operator had been placed on notice that
    greater efforts were necessary for compliance.”                             Wolf Run Mining
    Co.,    
    35 FMSHRC 3512
    ,      3520       (Dec.    2013)    (citing        authorities);
    Black Beauty Coal Co., 703 F.3d at 560.
    After reviewing each of these factors in this case, the ALJ
    concluded         that   each       violation         resulted    from      an    unwarranted
    failure      to    comply     with        MSHA    regulations.             As    to    the    fire
    equipment         violation,        the    ALJ    concluded       that      the    failure      to
    ensure that all shutoff valves on the main waterline could be
    fully    closed      “stemmed        from       extensive       underlying        negligence.”
    J.A. 866.          In particular, the ALJ noted that Consol had long
    failed to maintain the valve in a clean condition and removed
    the leverage bars soon after the valve was installed.                                  Moreover,
    the    ALJ    explained       that,        at    the     time    of   the       accident,      the
    inoperable shutoff valve was obviously open, posing significant
    danger       to     surrounding           miners.          Finally,        the        ALJ     cited
    Addington’s         failure     to        recognize      and     properly        address      this
    26
    danger—negligence, which the ALJ properly imputed to Consul, see
    supra    Part     II.C,    as    further      evidence        of    Consol’s          negligent
    failure to replace the damaged shutoff valve before attempting
    to repair the severed fire valve.                   Thus, although MSHA had never
    previously cited Consol’s failure to provide leverage bars, the
    ALJ concluded that this lack of notice was “outweighed by the
    very significant aggravating factors” counseling in favor of an
    enhanced penalty.         Id.
    Likewise,        with     respect      to     the     Mining          Equipment       Rule
    violation, the ALJ explained that, though relatively brief in
    duration and small in scale, the damage to the fire valve was
    obvious    and    presented       significant        danger        to   numerous        miners.
    Given that passing machinery frequently struck protruding valves
    (including at least one prior incident involving a similar, if
    less    severe,    injury)       and   that    Addington          was     aware       that   this
    particular       valve     was     damaged         but     failed       to     more     closely
    supervise       Green     and     Saunders,         the     ALJ     found       that     Consol
    displayed an aggravated lack of due care in failing to remove
    the damaged valve from service.
    Consol contests these findings on two bases.                            First, Consol
    argues     that     the        ALJ’s    finding           that      the        fire     valve’s
    inoperability       was    obvious      is     not       supported        by    the     record.
    Specifically, Consol notes that the miners were initially able
    to reattach the valve with a pipe wrench and that MSHA’s expert
    27
    testified that the damage to the valves was apparent only upon
    closer investigation.                  Consol further suggests that signs that
    the    shutoff       valve       was    not    fully       closed       at     the    time       of   the
    accident would not have been apparent in the mine setting.
    Again,       however,          substantial         evidence       supports          the    ALJ’s
    conclusions,         and    thus       we     may   not     set       them     aside    on     appeal.
    Windsor Coal Co., 166 F.3d at 337.                              As to the fire valve, the
    ALJ    relied       on    testimony         from    Green        that    he    had     to    forcibly
    reattach the damaged valve, as well as testimony from the MSHA
    inspector       that        anyone          familiar       with        such     a      valve      would
    understand          that        it     likely       would         be     damaged        under         the
    circumstances, to find that the damage to the threading would
    have been obvious at the time of the accident.                                       Likewise, the
    ALJ noted that the valve manufacturer’s manual suggests that
    disassembly of the valve may damage the valve and render it
    inoperable.          The        ALJ    also    relied       on    the    MSHA        investigator’s
    testimony that the damaged shutoff valve was audibly and visibly
    open    at    the        time    of    the     accident,         as     well    as     the     miners’
    testimony that water continued to flow out of the manifold as
    they began to reattach the broken fire valve, to conclude that
    the shutoff valve was obviously not functioning at the time of
    the    accident.           The       MSHA    inspector          likewise       testified         that   a
    second       mine    foreman          confirmed          that    the     valve       was     “audibly
    leaking” soon after the accident.                        J.A. 86.
    28
    Second, relying on its earlier argument that Addington did
    not   serve     as     Consol’s       agent,      Consol      suggests     that        the   ALJ
    improperly       considered         Addington’s       knowledge          and     actions      in
    assessing Consol’s negligence in connection with the accident.
    As previously explained, however, the ALJ did not reversibly err
    in concluding that Addington qualified as Consol’s agent with
    respect    to    the    miners’       response      to     the    damaged       fire    valve.
    Supra Part II.C.              Moreover, even absent such imputation, the
    ALJ’s unwarranted-failure findings are supported by substantial
    evidence.       As the ALJ explained, the present accident followed
    an extensive history of similar incidents in the mine.                                       For
    instance, the mine’s safety supervisor testified that he was
    aware     of    the     risk     of    damaging      fire        valves        while    moving
    equipment.        And       other   miners     agreed      that    valves       were    struck
    frequently by moving equipment.                    Similarly, the ALJ reasonably
    concluded      that     the    material      on    the     inoperable      shutoff       valve
    would have accumulated over time and would have been readily
    apparent       upon     close       inspection.          In      fact,     following         the
    accident, Consol took steps to ensure that leverage bars are
    accessible throughout the mine and rerouted the entire waterline
    to move it farther away from the haulage track.
    In light of the record evidence showing that Consol was or
    should    have       been     aware    of   the    conditions       that        led    to    the
    accident well before the accident, the ALJ’s conclusion that
    29
    Consol demonstrated more than ordinary negligence in failing to
    address these conditions is supported by substantial evidence.
    Windsor    Coal    Co.,    166   F.3d   at    337    (upholding     unwarrantable-
    failure finding where the operator “knew of the problems with
    [mine equipment, but] failed to take adequate measures to . . .
    prevent” an obvious danger).            Consequently, we affirm the ALJ’s
    findings that the challenged violations stemmed from Consol’s
    unwarrantable failure to comply with applicable MSHA health and
    safety regulations.
    III.
    After       carefully    considering      the    record   as    a   whole,   we
    conclude that the ALJ did not err in finding that Consol had
    fair notice that the dangerous conditions that ultimately led to
    the avoidable death of a miner constituted an “unwarrantable
    failure”    to    comply     with   applicable       mine   safety   regulations.
    Accordingly, for the foregoing reasons, the petition for review
    is denied.
    PETITION FOR REVIEW DENIED
    30