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

Amended: November 23, 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. BlairKijewski, 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, 
2

UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for 

Respondent, Secretary of Labor.
3

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 
4

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 
5

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.
6

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, 

 1 Addington 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. 
7

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 
8

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, a Commission 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, 
9

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)). 
10

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 
11

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 
12

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 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 into 
13

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. 
14

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 wideranging 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. 
15

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 Consol 

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 
16

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 
17

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 
18

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.
19

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.
20

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)); 
21

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 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 
22

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). 
23

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, 
24

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 
25

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 

 2 The ALJ also found that each of the charged violations was 

significant and substantial, and Consol does not contest that

finding on appeal.
26

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 unwarrantable

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 
27

danger—negligence, which the ALJ properly imputed to Consol, 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 
28

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. 
29

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 unwarrantable-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 
30

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 unwarrantablefailure 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