                                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. 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, 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,

                                                 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 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

                                        12
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       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

                                                 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       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    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

                                                  26
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

                                             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      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

                                            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




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