United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2015 Decided January 12, 2016

No. 14-1266

MACH MINING, LLC,

PETITIONER

v.

SECRETARY OF LABOR, ET AL.,

RESPONDENTS

On Petition for Review of a Decision of the 

Federal Mine Safety & Health Review Commission

James P. McHugh argued the cause for petitioner. On the

brief was Christopher D. Pence. 

Cheryl C. Blair-Kijewski, Attorney, U.S. Department of

Labor, argued the cause for respondents. With her on the brief

was W. Christian Schumann, Counsel. John T. Sullivan,

Attorney, entered an appearance. 

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Mach Mining (“Mach”) petitions

for review of the final order of the Federal Mine Safety and

Health Review Commission concluding that two of Mach’s
2

regulatory violations under the Mine Safety and Health Act were

the result of “high negligence” and one violation was also

“significant and substantial.” Mach contends these

determinations were unwarranted in view of its efforts to

mitigate the violations and the limited danger they posed. 

Because the factual findings underlying these determinations are

supported by substantial evidence, we deny the petition. 

I.

The Federal Mine Safety and Health Act of 1977 was

enacted giving “the first priority and concern” to the “health and

safety of its most precious resource — the miner,” in view of

“an urgent need to provide more effective means and measures

for improving the working conditions and practices in the

Nation’s coal or other mines in order to prevent death and

serious physical harm.” 30 U.S.C. §§ 801(a), (c). To carry out

this purpose, Congress directed the Secretaries of Health and

Human Services and Labor to develop permanent mandatory

health or safety standards. Id. § 801(g). Inspectors from the

Mine Safety and Health Administration (“MSHA”) in the

Department of Labor regularly inspect mines to ensure

compliance with mandatory health or safety regulations. Id.

§ 813. Upon discovering a mine operator is not in compliance

with these standards, the inspector must issue a written citation. 

Id. § 814(a). The Secretary of Labor is authorized to enforce the

mandatory standards through civil penalties, see id. §§ 815, 820,

upon considering, among other things, the operator’s history of

previous violations and whether the operator was negligent, id.

§ 815(b)(1)(B). In more serious cases, the Secretary must issue

a withdrawal order, bringing mine operations to a halt until the

violation is abated. See id. § 814(d), (e), (h). When the

Secretary pursues enforcement measures or seeks civil penalties,

see id. §§ 814, 815, 820, the mine operator has the opportunity

for an administrative hearing and appeal to the Commission,
3

followed by judicial review, id. §§ 815, 816. 

Mach operates a longwall coal mine in Johnston City,

Illinois that releases more than 1 million cubic feet of methane

daily. The Secretary of Labor proposed civil penalties for a

series of citations that had been issued at the mine. Two

citations are at issue here. 

On October 30, 2008, Mach received a citation for violating

30 C.F.R. § 75.400, which provides that “[c]oal dust, including

float coal dust deposited on rock-dusted surfaces, loose coal, and

other combustible materials, shall be cleaned up and not be

permitted to accumulate in active workings.” Inspector Edward

Law issued the citation based on coal that had accumulated

around two conveyor belts — a temporary belt and the main belt

carrying mined coal out of the mine. Due to the extensive

accumulations, the temporary belt was “actually sitting on top

of the coal.” Hr’g Tr. 113 (testimony of Inspector Law) (Aug.

2, 2011). To address the situation, Mach shut down the main

belt (and thereby also the temporary belt) at 2:30 a.m. on

October 30, and both belts remained off when Inspector Law

observed the area later that morning. Inspector Law nonetheless

concluded that the accumulations violation was the result of

high negligence and was “significant and substantial.”

On November 17, 2008, Mach received a citation for

violating 30 C.F.R. § 75.380(f)(3)(iii), which prohibits mine

operators from locating “battery charging stations” in primary

escapeways. Inspector Dean Cripps found a charging station

parked in the primary escapeway. He had cited Mach for the

same violation on October 28; that citation was terminated on

November 7, when another inspector observed that the charging

station was locked so it could not be used unless the lock was

removed. Although the charging station was locked when

Inspector Cripps saw it on November 17, he nonetheless issued
4

the citation because he would not have terminated the prior

citation based merely on it being locked and he was convinced

the station had been unlocked at times between November 7 and

November 17. While Inspector Cripps was investigating the

charging station, a mine foreman approached to see if his

equipment had been charged, explaining that this was where he

normally charged his equipment. Inspector Cripps concluded

the November 17 violation was a result of Mach’s high

negligence.

The Secretary of Labor notified Mach of proposed

assessments totaling $4,800 in civil penalties for the two

regulatory violations. See 30 U.S.C. § 815. Mach admitted the

violations but disputed whether either citation warranted a

finding of high negligence and whether the coal accumulations

violation was “significant and substantial.” After a hearing, the

ALJ concluded the requested penalties were appropriate. Mach

Mining, LLC, 36 FMSHRC 2533, 2547 (2014). Mach petitions

for review of the ALJ’s decision, which became a final decision

40 days after the Commission denied Mach’s request for review. 

See 30 U.S.C. §§ 816(a)(1), 823(d).

II.

Mach’s challenges to the ALJ’s “high negligence” and 

“significant and substantial” determinations rest on its view that

its mitigating efforts should as a matter of fact and law have

reduced the level of negligence and eliminated the “significant

and substantial” determination. The ALJ’s factual findings

underlying these determinations are subject to review for

substantial evidence, which requires the court to “determine

whether there is such relevant evidence as a reasonable mind

might accept as adequate to support the judge’s conclusion.” 

Jim Walter Res., Inc. v. Sec’y of Labor, 103 F.3d 1020, 1023–24

(D.C. Cir. 1997) (quoting Chaney Creek Coal Corp. v. Fed.
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Mine Safety & Health Review Comm’n, 866 F.2d 1424, 1431

(D.C. Cir. 1989)). Questions of law are subject to de novo

review, 30 U.S.C. § 816(a)(1); see Black Beauty Coal Co. v.

Fed. Mine Safety & Health Review Comm’n, 703 F.3d 553, 558

(D.C. Cir. 2012). 

A. 

In assessing civil penalties under the Mine Act for violating

mandatory health and safety regulations, the Commission is

required to “consider . . . whether the operator was negligent, . . .

the gravity of the violation, and the demonstrated good faith of

the person charged in attempting to achieve rapid compliance

after notification of a violation.” 30 U.S.C. § 820(i). The

parties’ briefs indicate that the proper framework for

determining negligence — and whether that negligence was

high, moderate, or low — is found in 30 C.F.R. § 100.3(d). This

provision defines negligence as “conduct, either by commission

or omission, which falls below a standard of care established

under the Mine Act to protect miners against the risks of harm.” 

Id. Mitigating circumstances can alter the level of negligence,

and “may include, but are not limited to, actions taken by the

operator to prevent or correct hazardous conditions or

practices.” Id. In a formulaic mode, the level negligence is

high, moderate, or low if the operator “knew or should have

known of the violative condition or practice” and there are no,

some, or considerable “mitigating circumstances,” respectively. 

Id. 

Mach contends that a finding of a mitigating circumstance

is incompatible with high negligence under section 100.3(d) and

that its efforts to address the violations should have been

considered mitigating in nature. For the accumulations

violation, Mach maintains that its negligence was mitigated by

the efforts on October 29 to clean up the accumulations and by

its examiner’s decision, in compliance with 30 C.F.R.
6

§ 75.363(a), to remove the main belt from service once he

discovered the accumulations on the day of the citation. Mach

notes that Inspector Law agreed that removing the belt from

service was what he expected an operator’s examiner to do in

these circumstances. For the charging station violation, Mach

maintains that it was not highly negligent because it had locked

the charging station by the time the inspector issued the citation.

Mach presumes, incorrectly, that evidence of a mitigating

circumstance precludes the Commission and its ALJs from

finding a regulatory violation resulted from the high negligence

of the mine operator. Section 100.3(d) does adopt a formulaic

approach suggesting high negligence is incompatible with the

existence of mitigating circumstances. But the Commission is

not bound by the MSHA regulation and has held, see

Sellersburg Stone Co., 5 FMSHRC 287, 291–92 (1983);

Shamrock Coal Co., 1 FMSHRC 469, 469 (1979), and recently

reaffirmed, that the regulation applies “only to the proposal of

penalties by MSHA and the Secretary of Labor,” Brody Mining,

LLC, 37 FMSHRC 1687, 1701 (2015); Jim Walter Res., Inc., 36

FMSHRC 1972, 1975 n.4 (2014). “[U]nder both Commission

and court precedent, the regulations do not extend to the

independent Commission, and thus the MSHA regulations are

not binding in any way in Commission proceedings.” Brody

Mining, 36 FMSHRC at 1701 (citing Jim Walter Res., 36

FMSHRC at 1975 n.4, and Sellersburg Stone Co. v. Fed. Mine

Safety & Health Rev. Comm’n, 736 F.2d 1147, 1151–52 (7th

Cir. 1984)). This differential approach to negligence was

contemplated in the relevant rulemaking, see Criteria and

Procedures for Proposed Assessment of Civil Penalties, 47 Fed.

Reg. 22,286, 22,287 (May 21, 1982), and a “split-function”

approach accords with the Mine Act, which “reflects Congress’s

concern that the adjudicatory function be institutionally

independent of potential influence by the agency responsible for

policymaking and enforcement decisions.” Prairie State
7

Generating Co. v. Sec’y of Labor, 792 F.3d 82, 86 (D.C. Cir.

2015).

Instead of using the negligence standards in section

100.3(d), the Commission “may evaluate negligence from the

starting point of a traditional negligence analysis.” Brody

Mining, 37 FMSHRC at 1702. This analysis asks whether an

operator has met “the requisite standard of care — a standard of

care that is high under the Mine Act.” Id. Considerations

include “what actions would have been taken under the same

circumstances by a reasonably prudent person familiar with the

mining industry, the relevant facts, and the protective purpose of

the regulations.” Id. The Commission has explained as well

that an ALJ “is not limited to an evaluation of allegedly

‘mitigating’ circumstances” and should consider the “totality of

the circumstances holistically.” Id. For that reason, an ALJ

“may find ‘high negligence’ in spite of mitigating circumstances

or may find ‘moderate’ negligence without identifying

mitigating circumstances.” Id. at 1702–03. In the

Commission’s view, the real “gravamen of high negligence is

that it ‘suggests an aggravated lack of care that is more than

ordinary negligence.’” Id. at 1703 (quoting Topper Coal Co., 20

FMSHRC 344, 350 (1998)). 

Although the ALJ’s analysis appeared to follow this more

holistic approach — explaining that “mitigating circumstances”

may be considered by MSHA and considering all the

circumstances surrounding the two regulatory violations,

including Mach’s compliance efforts, before concluding that a

high negligence determination was required for both violations

— the ALJ cited the negligence standards of section 100.3(d). 

See Mach Mining, 36 FMSHRC at 2536, 2542–43, 2545–46. 

We need not decide which standard the ALJ applied because the

analysis adopted by the ALJ is supported by substantial

evidence even under the more formalistic requirement of section
8

100.3(d) that there be no mitigating circumstances.

Accumulations. The ALJ concluded that Mach failed to

take the steps required to prevent what had become a common

accumulations problem or to remove the accumulations

promptly upon discovery. Mach’s examiner and mine manager

both testified that spillage occurred “pretty often” because the

chute designed to transfer the coal to the middle of the main belt

could easily get blocked. The ALJ found that Mach was “on

notice that accumulations were likely to arise at this transfer

point and knew about the actual violative conditions in

question.” Mach Mining, 36 FMSHRC at 2543. Yet, as the

record shows, Mach did not start cleaning up the accumulations

until after the citation was issued. Mach attempts to justify the

delay, explaining that the 3:30 a.m. roof fall was a priority and

that at 7:15 a.m. MSHA ordered evacuation of the area near the

roof fall (which included the area with the coal accumulations).

This does not explain why Mach had not cleaned up the

accumulations in the hours between the initial afternoon

discovery of the accumulations and the roof fall.

Mach emphasizes that even though it had not rectified the

accumulations problem, it had taken corrective measures to

mitigate it. It claims that it had cleaned up the accumulations on

October 29 and turned off the main belt. The record supports

the ALJ’s finding that Mach had not cleaned up the

accumulations on October 29, despite having time to do so. 

Although Mach’s log book included an entry that accumulations

were present on the afternoon prior to issuance of the October

30 citation, the inspector saw no notation that the accumulations

had been cleaned up. Lack of a corrective notation was not

dispositive because at the time the citation was issued there was

still time for Mach to record corrective actions made the day

before. But no record evidence required the ALJ to find such a

clean up had occurred. 
9

Mach’s only evidence on this point is testimony by one of

its examiners that at 9:30 p.m. on October 29, he saw the belts

were running and the “tail rotor was clear,” thus suggesting that

the spill found on October 30 was recent. The ALJ concluded

the examiner’s testimony deserved no weight because he had not

been making a full belt examination and gave no reason to

believe his “observation of the belt tail area was at all rigorous.” 

Mach Mining, 36 FMSHRC at 2539. Instead, the ALJ credited

Inspector Law’s opinion that there had been no clean up. 

Inspector Law acknowledged that he had “no way of knowing”

whether the accumulations had been cleaned up, but if they had,

he pointed out, then “the spill that [Mach] had ongoing was

creating a very big hazard.” Hr’g Tr. 157. He testified that

when he saw the coal spill at 10:40 a.m. the amount of

accumulations was “a pretty good size.” Hr’g Tr. 156-57. 

There was coal spilled along both sides of the main belt,

spanning 5 to 10 feet, as well as behind it and underneath the

head area of the temporary belt, where accumulations piled from

10 to 18 inches such that the temporary belt was sitting on top

of the coal. Both witnesses had years of mining experience, but

the ALJ’s weighing of their testimony, when explained as here

to credit Inspector Law’s opinion, is entitled to deference. Cf.

Prairie State, 792 F.3d at 89; Black Beauty, 703 F.3d at 559–60.

Further, the ALJ could reasonably conclude that Mach’s

decision to turn off the main belt no more served to show that it

was not highly negligent. Shutting off the main belt “neither

prevented nor corrected the hazardous condition.” Mach

Mining, 36 FMSHRC at 2543. Instead, the ALJ concluded, the

fact that Mach needed to stop production to correct the

dangerous condition it had allowed to persist indicated how

negligent Mach had been. Upon turning off the belt, Mach took

no further step to clean up the accumulations.
10

Charging station. The ALJ rejected Mach’s view that it

was not highly negligent because the charging station was

locked and functionally unusable at the time the inspector

discovered it in the primary escapeway on November 17. 

Mach’s view is that if locking a charging station is enough to

terminate a citation, then it must be enough to reduce high

negligence to a lower form of negligence. Mach is correct that

when the agency misleads a mine operator — either with

inconsistent enforcement of the regulatory provision or with

ambiguous interpretations in the agency manual — that

circumstance may reduce the level of negligence and penalty

amount for a violation. See Mettiki Coal Corp., 13 FMSHRC

760, 770–71 (1991); U.S. Steel Mining Co., 6 FMSHRC 2305,

2310 (1984); King Knob Coal Co., 3 FMSHRC 1417, 1422

(1981). That is, “although an incorrect interpretation of a

regulatory requirement by an MSHA official does not have the

force and effect of law and will not serve to negate liability for

violative conduct, detrimental reliance on that interpretation is

properly considered in mitigation of penalty.” U.S. Steel

Mining, 6 FMSHRC at 2310. 

The ALJ recognized that reliance could be a basis for

reducing a high negligence determination, but found no

evidence Mach had relied on the prior termination. This finding

is supported by substantial evidence in the record. Mach’s

manager did order the station be locked when he discovered the

non-compliant station, but the ALJ rejected Mach’s “late-in-thegame attempt to rely on the abatement required for the October

28 citation.” Mach Mining, 36 FMSHRC at 2546. In view of

the plain text of the regulation, the ALJ reasoned, “Mach knew

or should have known the charger could . . . not be in the

escapeway regardless of whether it was locked.” Id. Mach’s

manager admitted he knew the charging station should not be in

the escapeway, acknowledging that locking it was the next best

option to full compliance, which required moving the station or
11

putting it behind an air lock. Nothing in the record indicates the

manager’s half-measure of locking the charging station was

based on the terminated citation. Nor is there evidence that the

charging station was returned to the primary escapeway, after

being repaired following the October 28 citation, based on

“MSHA’s allegedly inconsistent guidance.” Id. The record is

silent on who ordered the station to be returned to the escapeway

or for what purpose. 

To the extent Mach contends that the ALJ erred in requiring

a showing of actual detrimental reliance, it fares no better. The

Commission has found less than high negligence where the mine

operator “did not show actual reliance,” focusing instead on

what the operator knew or should have known about the

“appropriate standard of care.” See King Knob Coal, 3

FMSHRC at 1422; Mettiki Coal, 13 FMSHRC at 771. Even

assuming Mach partially complied with the standard of care

under 30 C.F.R. § 75.380(f)(3)(iii) when it locked the charging

station, Mach offered no evidence the station was continuously

locked during the period between the termination of the prior

citation and the issuance of the new citation. Rather, Mach’s

manager admitted that he had the station locked only a few days

before the citation was issued. Mach’s suggestion that this

temporary lapse should be forgiven because “there is no

evidence that any agent of Mach was aware the charging station

was or was planned to be returned to the primary escapeway,”

defies reason, as well as the purpose of the Mine Act. It cannot

be that a mine operator’s failure to keep track of equipment that

can pose a danger to miners when it is in the wrong place, see 30

C.F.R. § 75.380(f)(3)(iii), has made that operator less negligent. 

B.

The “significant and substantial” designation stems from

section 104(d)(1) of the Mine Act, which distinguishes between

a violation of a mandatory health and safety standard that causes
12

imminent danger and those that do not but nonetheless are “of

such nature as could significantly and substantially contribute to

the cause and effect of a coal or other mine safety or health

hazard.” 30 U.S.C. § 814(d)(1); see id. § 814(e)(1). It subjects

a mine operator to a withdrawal order, and higher civil penalties,

if subsequent inspections reveal further violations of the

standards. See 30 U.S.C. §§ 814(d), (e), 820(a)(3); Cyprus

Emerald Res. Corp. v. Fed. Mine Safety & Health Review

Comm’n, 195 F.3d 42, 43 & n.1 (D.C. Cir. 1999); Sec’y of Labor

v. Fed. Mine Safety & Health Review Comm’n, 111 F.3d 913,

915 (D.C. Cir. 1997). Mach does not dispute that whether a

violation is serious enough to be “significant and substantial” is

governed by the four-element test in Mathies Coal Co., 6

FMSHRC 1, 3–4 (1984). A violation is “significant and

substantial” if there is (1) a violation of the underlying

mandatory safety standard; “(2) a discrete safety hazard — that

is, a measure of danger to safety — contributed to by the

violation; (3) a reasonable likelihood that the hazard contributed

to will result in an injury; and (4) a reasonable likelihood that

the injury in question will be of a reasonably serious nature.” Id.

at 3–4; Amax Coal Co., 19 FMSHRC 846, 848 (1997). 

“[R]easonable likelihood” is something less than “more

probable than not.” See Amax Coal, 19 FMSHRC at 848–49. 

Instead, Mach maintains that the Secretary failed to prove the

third element of the Mathies test because there was insufficient

evidence the main belt had been operating in the coal

accumulations for a long time prior to the citation or would do

so again in the future, and because a belt fire was less likely to

occur because the accumulations were wet and contained

relatively little coal. Although Mach may be correct that it is

not possible to know with certainty how long the main conveyor

belt had been operating in the presence of the accumulations, the

ALJ could reasonably conclude, for the reasons discussed, that

the accumulations were extensive and had been present for a

significant period of time. 
13

Notably, Mach’s focus on the length of time that the

accumulations had been present misunderstands the “significant

and substantial” inquiry. That inquiry considers “the violative

conditions as they existed both prior to and at the time of the

violation and as they would have existed had normal operations

continued.” Knox Creek Coal Corp., 36 FMSHRC 1128, 1132

(2014); McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991

(2014). Even if there is a dispute about how many hours the belt

was operating in accumulations, there can be no dispute that at

the time of the shut down the belt was operating in the

accumulations and would do so again if the belt were turned

back on. The Commission “has expressly rejected the argument

that ‘accumulations of combustible materials may be tolerated

for a reasonable time.’” Knox Creek Coal, 36 FMSHRC at 1141

(internal quotation marks and citation omitted); cf. Black Beauty,

703 F.3d at 558. So, the fact that Mach turned off the main belt

at some point prior to the citation does not mean that the ALJ

erred in concluding the violation was “significant and

substantial.” In McCoy Elkhorn, the Commission upheld a

“significant and substantial” determination even though the

citation was issued when the mine operator was cleaning up the

accumulations and there were no ongoing mining operations. 36

FMSHRC at 1991; Knox Creek Coal, 36 FMSHRC at 1141. 

Because the “significant and substantial” determination “must

be made at the time the citation is issued ‘without any

assumptions as to abatement,’” McCoy Elkhorn, 36 FMSHRC

at 1991 (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574

(1984)), neither the inspector nor the ALJ could assume that

Mach would complete cleaning up the accumulations prior to

resuming mining activities just because Mach had made some

effort to clean up accumulations at the time it was cited.

Finally, Mach insists that the danger presented by these coal

accumulations was minimal because they were wet, and rock,

not coal, made up a significant portion of the accumulations. It
14

offers no basis for the court to conclude that the ALJ’s findings

that the accumulations were mostly coal and were not rock

dusted were not supported by substantial evidence. The ALJ’s

determination that the violation was “significant and substantial”

rests on a judgment that is supported by Commission precedent. 

“[W]et coal accumulations pose a significant danger in

underground coal mines.” Consolidation Coal Co., 2013 WL

4648491, at *3 (FMSHRC Aug. 14, 2013). Wet coal, at best,

delays combustion because “accumulations of damp or wet coal

can dry out and ignite.” Amax Coal Co., 19 FMSHRC at

848–49 (citing Mid-Continent Res., Inc., 16 FMSHRC 1226,

1230 (1994)). Here, wet coal was found near an ignition source

(a running conveyor belt). See Mid-Continent Res., Inc., 16

FMSHRC 1218, 1222 (1994); Amax Coal, 19 FMSHRC at

848–49. 

Accordingly, because substantial evidence supports the

ALJ’s findings for the “high negligence” and the “significant

and substantial” determinations, we deny the petition for review.