                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-2313


KNOX CREEK COAL CORPORATION,

                Petitioner,

           v.

SECRETARY OF LABOR, Mine Safety and Health Administration;
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,

                Respondents.



On Petition for Review of a Decision of the Federal Mine Safety
and Health Review Commission. (2010-81-R)


Argued:   September 16, 2015                Decided:   January 21, 2016


Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Petition for review denied by published opinion. Judge Wynn
wrote the opinion, in which Judge Motz and Senior Judge Davis
joined.


ARGUED: Mark Evan Heath, SPILMAN THOMAS & BATTLE, PLLC,
Charleston, West Virginia, for Petitioner.  Philip Edwin Mayor,
UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
Respondent. ON BRIEF: Alexander Macia, SPILMAN THOMAS & BATTLE,
PLLC, Charleston, West Virginia, for Petitioner.    M. Patricia
Smith, Solicitor of Labor, Heidi W. Strassler, Associate
Solicitor, W. Christian Schumann, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for
Respondent Secretary of Labor.
WYNN, Circuit Judge:

      The Federal Mine Safety and Health Review Commission (the

“Commission”) determined that four uncontested violations of the

Federal Mine Safety and Health Act of 1977 (the “Mine Act”) by

Knox Creek Coal Corporation (“Knox Creek”) were “significant and

substantial” under 30 U.S.C. § 814(d)(1).               Three violations were

so-called       “permissibility”      violations,      involving    inadequately

sealed     enclosures    of   electrical      equipment,     and    one    was    an

“accumulations” violation, involving the piling of coal dust on

a conveyor belt.        Knox Creek argues that, with respect to each

violation type, the Commission either applied an erroneous legal

standard or improperly reweighed the Administrative Law Judge’s

(ALJ’s) evidentiary findings.

      Regarding the permissibility violations, we conclude that

the Commission should have applied the legal standard advocated

by   the   Secretary    of    Labor    (the   “Secretary”),        but    that   the

outcome    is    unaffected    when    the    proper    standard    is    applied.

Regarding    the    accumulations      violation,      we   conclude      that   the

Commission applied the correct legal standard, one also endorsed

by the Secretary.         And nowhere did the Commission improperly

reweigh evidence.        Accordingly, we deny Knox Creek’s petition

for review.




                                         2
                                              I.

                                              A.

     The Mine Act was intended to address the “urgent need to

provide       more   effective    means       and    measures          for   improving      the

working conditions and practices in the Nation’s . . . mines in

order     to    prevent       death     and       serious        physical       harm.”       30

U.S.C. § 801(c).          The Act directs the Secretary to promulgate

mandatory safety and health standards for the nation’s mines.

Id. § 811(a).           To ensure compliance with those standards, it

authorizes the Mine Safety and Health Administration (MSHA), as

an “[a]uthorized representative[] of the Secretary,” to “make

frequent       inspections      and    investigations             in    . . .      mines   each

year.”     Id. § 813(a); see also Speed Mining, Inc. v. Fed. Mine

Safety    &    Health    Review       Comm’n,      528   F.3d      310,      312    (4th   Cir.

2008).

     Mine inspectors issue citations when a mandatory safety and

health    standard      has    been     violated.           30    U.S.C.      § 814(a).       A

violation      is    designated       as   “significant           and    substantial”       (or

“S&S”) when it “is of such nature as could significantly and

substantially contribute to the cause and effect of a coal or

other mine safety or health hazard.”                     Id. § 814(d)(1).                An S&S

designation increases the civil penalty amount assessed against

the mine operator, becomes part of that operator’s permanent

citation history, and can provide the basis for a “pattern of

                                              3
violations”          designation    and           possible     withdrawal           orders

prohibiting operations in the affected mines.                          Id. § 814(d),

(e);     30     C.F.R.    § 100.3(a)      (enumerating          factors       for      the

determination of a penalty, including whether the operator has a

history of violations).

        An    operator    may   contest       a    citation,     as    well    as     its

designation as S&S, before the Commission.                     30 U.S.C. § 815(d).

Further, a party may petition a court of appeals to review any

Commission decision by which it has been adversely affected.

Id. § 816(a)(1).

                                          B.

        The MSHA conducted a series of inspections of Knox Creek’s

Tiller No. 1 Mine (“Tiller Mine”) in October and November 2009,

issuing thirty-four citations that it deemed S&S.                           Of these,

only five were reviewed by the Commission and only four are at

issue        here:    three     “permissibility”             violations       and     one

“accumulations” violation.

       The three permissibility violations involve a requirement

that    a    mine’s   electrical   equipment         enclosures       be   “explosion-

proof,” meaning that those enclosures must be sealed, and that

any gaps between the enclosures and the surrounding air must not




                                          4
exceed     .004    inches.       30    C.F.R.    §§ 18.31(a)(6),            75.503. 1      As

explained by the Secretary’s expert witness, the standard is

designed     to     prevent     an    explosion        inside       an    enclosure      from

causing      an    explosion     outside        the     enclosure.           An   internal

explosion will not occur without an ignition source such as an

electrical        arc   or   spark,    events     that       do   not    occur    when    the

electrical equipment is functioning properly.                            However, “normal

use   in     the    mining     environment”           can,    for    example,      involve

vibrations and water seepage, which over time may damage the

electrical connections such that the potential for an ignition

can exist.        J.A. 326–27.

      Each    of    the      three    permissibility          citations      involved     an

electrical mining equipment enclosure with an opening in excess

of .004 inches.          In all three cases, the wires were bolted down

and wrapped in insulation and tape at the time of inspection to

decrease      the       likelihood     of   sparking.               However,      evidence

suggested that during the course of normal mining operations,

the bolting could come loose or the insulation could wear down,

thus making arcing and sparking more likely over time.                             For one

of the machines, evidence showed that some of the insulation was


      1The permissible length of any gap depends on the internal
volume of the empty enclosure.   Here, there is no dispute that
the relevant enclosures have more than 124 cubic inches of
internal volume, and therefore have a maximum permissible
“clearance” of .004 inches. See 30 C.F.R. § 18.31(a)(6).

                                            5
starting         to    wear,       and    for    another,     evidence    showed       rust      and

corrosion.            In all three cases, the equipment was scheduled to

be used in the subsequent shift.

       In        reviewing         these        permissibility        citations,       the       ALJ

concluded that the Secretary had failed to satisfy the third

prong       of    the        four-part        “Mathies”      test,     articulated         by    the

Commission in Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1

(1984), for establishing the S&S nature of a violation.                                         That

third prong requires the Secretary to demonstrate “a reasonable

likelihood that the hazard contributed to [by the violation]

will result in an injury” to a miner.                         Id. at 3–4.

       Although the ALJ found that the Secretary had established a

reasonable            likelihood         that      methane     could     have    entered         the

relevant enclosures at an explosive concentration, and that, in

the     event         of     an    ignition,        an   explosion       could       escape      the

enclosures and trigger a larger explosion in the “gassy” mine

atmosphere, 2 the ALJ nevertheless concluded that Mathies’ third

prong       was        unsatisfied            because        the     Secretary        had       “not

establish[ed]               the    likelihood       of   a   triggering        arc    or    spark”

inside the enclosures for each of the violations.                                S.A. 63; see

also       S.A.       64,    65.         In   so   deciding,       the   ALJ     rejected        the

       2
       The Tiller Mine is classified as “gassy” because it
liberates more than 500,000 cubic feet of methane during a
twenty-four-hour period, and is therefore subject to spot
inspections every ten working days. 30 U.S.C. § 813(i).

                                                    6
Secretary’s argument that when evaluating whether the “hazard”

was reasonably likely to result in injury under Mathies, the

existence of the hazard—in this case, the escape of hot gas

through       an   enclosure   opening        after       an    ignition       caused   by

internal arcing or sparking—should be assumed.

       After granting the Secretary’s petition for discretionary

review, the Commission unanimously reversed the ALJ’s non-S&S

finding with respect to each of the permissibility citations.

See Sec’y of Labor v. Knox Creek Coal Corp., 36 FMSHRC 1128

(2014).       Although the Commission did not adopt the Secretary’s

position that the presence of arcing and sparking within the

enclosure should be assumed, it did find fault with the ALJ’s

application of Mathies’ third prong.                     The Commission concluded

that the ALJ had failed to consider how conditions change during

normal    mining     operations,    id.       at    1132,       and   had     erroneously

required the Secretary to “produce quantitative evidence of the

frequency of malfunctions within these types of enclosures in

order    to    establish   that    arcing          or    sparking       was    reasonably

likely,” id. at 1133.          Examining the evidence in light of this

clarified      standard,   the    Commission            ruled    that    the    “evidence

compels the conclusion” that the permissibility citations were

S&S.    Id.




                                          7
                                          C.

     In addition to the above permissibility violations, Knox

Creek     contests       the    Secretary’s           S&S     designation          of     an

“accumulations”        violation     under       30    C.F.R.          § 75.400,      which

requires that “[c]oal dust . . . shall be cleaned up and not be

permitted to accumulate” in certain mine areas.                         Here, the MSHA

inspector found accumulations of coal dust ranging from four to

twelve inches in depth at numerous locations on and around a

conveyor    belt,     whose    movement    at    the       time   of    inspection       was

creating      friction     points     with      the        accumulations        and      the

consequent potential for ignition and fire.                       When the inspector

observed    the     accumulations     around         7:00    a.m.,      there   were      no

visible    cleaning      efforts    underway,        but    the   accumulations          had

been recorded in a pre-shift examination book sometime between

4:30 a.m. and 6:30 a.m., and there was evidence that miners had

been assigned to remove them.              Also, a Knox Creek employee who

had accompanied the inspector called management at the time of

inspection and was told that a clean-up crew was “on the way.”

J.A. 298.      Shortly thereafter, three miners arrived and removed

the accumulations, a process that took approximately forty-five

minutes.

        The ALJ determined that this accumulations violation was

not S&S because at the time of inspection miners were on the way

to   remove     the    accumulations,          and    therefore         there      was   no

                                          8
reasonable likelihood of an ignition and fire.                            As with the

permissibility violations, the Commission unanimously reversed

the ALJ’s non-S&S determination on the basis that it was error

to assume the likelihood of clean-up in the absence of an “order

directing         that     [coal]     production        not      resume        until    the

accumulations were resolved and [with] no evidence that miners

had made any efforts to abate the violation during the preceding

. . . shift.”            Knox Creek, 36 FMSHRC at 1140.                 The Commission

found that the violation was not being “actively abated” and

thus concluded that the evidence required a determination that

the accumulations violation was S&S.                   Id. at 1141.

                                            D.

      Having        designated       the    permissibility          violations          and

accumulations violation as S&S, the Commission remanded to the

ALJ   for     a     recalculation      of       penalties     regarding         all    four

violations.        Knox Creek, 36 FMSHRC at 1142.                Knox Creek appealed

the   Commission’s         decision    to     this      Court,    but     we    initially

dismissed      that       appeal    because      the    Commission’s       remand       for

redetermination of penalties rendered the agency’s decision non-

final.      Order, Knox Creek Coal Corp. v. Sec’y of Labor, No. 14-

1637 (4th Cir. Sept. 5, 2014), ECF No. 25.                       Because the ALJ has

now imposed revised penalties, and the Commission has denied




                                            9
Knox       Creek’s   petition      for    discretionary          review,    the    agency’s

decision is now final and ripe for review before this Court. 3

                                            II.

                                               A.

       Knox Creek advances two main challenges to the Commission’s

decision,        applicable         to      both        the       permissibility         and

accumulations         violations.              First,       it    contends        that   the

Commission applied an incorrect legal standard for determining

whether a given violation ought to be considered S&S.                               Second,

it suggests that the Commission reversed factual findings of the

ALJ     that    were       supported      by    substantial         evidence,       thereby

exceeding its statutorily prescribed standard of review.                             See 30

U.S.C. § 823(d)(2)(A)(ii)(I); Donovan ex rel. Chacon v. Phelps

Dodge       Corp.,   709    F.2d    86,    91       (D.C.   Cir.    1983)    (construing

multiple provisions of § 823(d)(2)(A) to conclude that “the only

‘question’ relating to the factual findings of an ALJ that the




       3
       We have jurisdiction over Knox Creek’s appeal pursuant to
Section 106(a)(1) of the Mine Act. 30 U.S.C. § 816(a)(1).     As
the Secretary points out, Knox Creek’s petition for review
references the Commission’s order denying discretionary review
of the ALJ’s penalty redeterminations rather than the order it
clearly disputes, i.e., the Commission’s earlier reversal of the
ALJ’s   non-S&S  determinations.     Nevertheless,  because  the
Secretary “had notice of the appeal and an opportunity fully to
brief the issue,” Hartsell v. Duplex Prods., Inc., 123 F.3d 766,
771 (4th Cir. 1997), Knox Creek’s error does not prejudice the
Secretary and therefore does not preclude our jurisdiction over
the appeal.

                                               10
Commission can consider is whether those findings are supported

by substantial evidence”). 4

       We begin by disposing of Knox Creek’s second argument, that

the Commission improperly reweighed facts found by the ALJ.                               On

the contrary, the Commission’s decision with respect to both the

permissibility          and    accumulations       violations       did    not    question

even       one   of     the     ALJ’s     factual       findings.          Rather,       the

Commission’s reversal turned on the correction of legal error.

       Specifically,           in     reviewing         the    finding          that     the

permissibility          citations     were      not    S&S,   the   Commission         found

fault with two main aspects of the ALJ’s analysis.                               First, it

concluded        that    the    ALJ     erred     by   considering        the    violative

conditions only “as they existed at the time of the inspection,

[and thereby] taking a ‘snapshot’ approach to the issue of an

arc or spark within the subject enclosures.”                          Knox Creek, 36

FMSHRC at 1132.           It noted clear Commission precedent requiring

the “consider[ation of] the violative conditions as they existed


       4
       Knox Creek also argues that the Secretary did not meet his
S&S burden because his expert witness did not testify as to the
“safety factor” relevant to the permissibility violations, which
would supposedly specify a “buffer” above the .004-inch opening
allowed by the regulation that would nevertheless be safe.
Petitioner’s Br. at 31-32.     However, as the Secretary points
out, the ALJ expressly found that ignited gases inside the
enclosures could have escaped into the mine’s atmosphere, and
Knox Creek did not challenge that finding as being unsupported
by substantial evidence before the Commission.    Knox Creek has
therefore waived that argument. 30 U.S.C. § 816(a)(1).

                                             11
both prior to and at the time of the violation and as they would

have existed had normal mining operations continued.”                              Id.     The

ALJ   had     not       applied       that    standard.           Second,   the   Commission

criticized      the          ALJ     for     “requiring      the     Secretary    to     prove

essentially         a    statistical          frequency      of     a   spark,”   which     it

characterized           as     “an     unwarranted        standard      beyond    reasonable

likelihood.”         Id. at 1133.

       Similarly,            regarding        the       accumulations       violation,     the

Commission faulted the ALJ for considering abatement measures

that were intended, but not yet begun, as a mitigating factor in

making an S&S determination.                       Id. at 1140.         Significantly, the

Commission did not dispute the ALJ-determined fact that “miners

had been assigned to clean the accumulations,” id., but only the

relevance      of       that        fact     to    the    legal     conclusion    that     the

violation was being “actively” abated and therefore not S&S, id.

at    1141.         Each       of    these    errors,       the    Commission     held,    was

inconsistent            with        decades       of    binding     Commission     precedent

interpreting the third prong of Mathies, doctrine that it had

developed to construe 30 U.S.C. § 814(d)(1).

       The Commission’s reasoning is analogous to that employed in

another of its decisions, reviewed in RAG Cumberland Resources

LP v. Federal Mine Safety & Health Review Commission, 272 F.3d

590 (D.C. Cir. 2001).                 There, the relevant question was whether,

“to constitute an ‘inspection’ [under 30 U.S.C. § 814(d)(2)],

                                                   12
inspectors      must        leave   their       vehicles        and    conduct         a    detailed

examination          for     non-obvious         hazards,”           or   whether           a   mere

“opportunity to observe” such hazards was sufficient.                                        Id. at

594.         Without        reconsidering            any   of    the      factual           evidence

suggesting that inspectors had repeatedly traveled through the

relevant area, the Commission reversed on the grounds that an

“inspection” required actual inspection activity, such as might

be reflected in the operator’s inspection log.                            Id. at 597.

       There    and        here,    the    Commission’s          reversal     was          legal   in

nature because it turned upon the clarification of a standard,

one    that    was    derived       from       the    interpretation         of    a       statutory

provision and applicable prospectively, beyond the facts of the

case    at    hand.         See    id.    at    596–97.         In    both   instances,            the

Commission did precisely what it is charged to do under the Mine

Act: review an ALJ decision to determine if it rested on an

“erroneous” legal conclusion or was “contrary to law or . . .

decisions of the Commission.”                    30 U.S.C. § 823(d)(2)(A)(ii)(II),

(III).

                                                 B.

       Because       we     read    the    Commission’s          decision         as       adopting,

rather than reweighing, the ALJ’s factual findings, we review

those findings under a substantial evidence standard.                                      30 U.S.C.

§ 816(a)(1).          And we review the Commission’s legal conclusions

de novo, affording deference when appropriate to the Secretary’s

                                                 13
interpretations.         See Sec’y of Labor ex rel. Wamsley v. Mut.

Mining, Inc., 80 F.3d 110, 113–15 (4th Cir. 1996).                        Where a

Commission decision and the Secretary’s relevant interpretation

turn upon the construction of a clear statutory provision—where

Congress   has    “directly      spoken    to   the   precise    question[s]    at

issue”—then our review requires no deference, and “that is the

end of the matter.”             Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 842 (1984); Power Fuels, LLC v.

Fed. Mine Safety & Health Review Comm’n, 777 F.3d 214, 221 (4th

Cir. 2015).      It is only where the relevant statutory provision

is    unclear     that     we     owe     deference     to    the     Secretary’s

interpretation of that provision.               See Wamsley, 80 F.3d at 113–

15.   As a result, to determine whether any deference is due, we

must examine whether the statute is ambiguous.

      Regarding    the    permissibility        violations,     the   legal   issue

before us is whether the Secretary must prove that ignition is

reasonably likely to occur inside an electrical enclosure in

order to render the violations S&S under 30 U.S.C. § 814(d)(1). 5

Again, that provision authorizes the Secretary’s representative

      5 The issue might also be identified in the terms
articulated in the Commission’s decision, i.e., as whether the
“reasonable likelihood” standard requires the Secretary to offer
a quantitative level of proof, and whether it ought to be
examined assuming the continuance of “normal mining operations.”
Knox Creek, 36 FMSHRC at 1131–33. Examining the vague language
contained in 30 U.S.C. § 814(d)(1), we think it is obvious that
Congress has not “directly spoken” to this issue either.

                                          14
to designate a violation as S&S where the “violation is 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).

       As     the    Secretary        notes,      the       word        “could”       suggests     no

particular degree of likelihood, but rather a mere possibility

that    the    violation         itself      might         causally       contribute       to     the

hazard.       On the other hand, as Knox Creek suggests, it is hard

to     conceptualize           how    a    violation         could       “significantly           and

substantially contribute” to a causal chain of events leading to

a hazard without satisfying some threshold level of probability,

a    probability      that       in   turn    must      depend      on     the    circumstances

surrounding         the    violation.            Thus,          there    are     at    least      two

plausible interpretations regarding whether the Secretary must

establish the reasonable likelihood of an ignition to render a

permissibility        violation           S&S.        As    a    result,       the     statute     is

ambiguous.          See King v. Burwell, 759 F.3d 358, 363 (4th Cir.

2014) (finding statutory language ambiguous where “subject to

multiple interpretations”), aff’d, 135 S. Ct. 2480 (2015).

       Determining             the    appropriate            characterization              of     the

accumulations violation involves resolving an issue even further

removed from the statute’s text.                      We are asked to decide whether

evidence that an operator intends to abate a violation—where

that    violation         is    not   being      actively         abated    at       the   time    of

                                                 15
inspection—can be considered in order to mitigate liability for

what would otherwise be an S&S violation.               As far as we can

tell, even Knox Creek does not attempt to argue that the Mine

Act unambiguously provides us with an answer to this question.

In short, we have little trouble concluding that Congress has

not “directly spoken” to the issues before us today.                 Chevron,

467 U.S. at 842.

       Where the meaning of a Mine Act provision is unclear, our

precedent directs that we afford some measure of deference to

the    Secretary’s—rather     than   the    Commission’s—interpretations.

Wamsley, 80 F.3d at 113–15.          Exactly how much deference is owed

to    the   Secretary’s    litigating   positions,    however,      is   not   a

question this Court has previously had occasion to resolve. 6                Nor

is there a consensus among our fellow circuit courts that have

addressed the question.       Compare N. Fork Coal Corp. v. Fed. Mine

Safety & Health Review Comm’n, 691 F.3d 735, 742 (6th Cir. 2012)

(declining to apply “full Chevron deference” to the Secretary’s

litigating     positions   regarding    the   Mine   Act),   with    Sec’y     of

Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003)

       6
       In both Speed Mining, 528 F.3d at 314, and Power Fuels,
777 F.3d at 221, we found that the statutory text was clear,
such that deference to the Secretary was not a necessary
component of our analysis. Finding that the statutory provision
here is ambiguous, however, we may not “simply impose [our] own
construction on the statute.”        Chevron, 467 U.S. at 843.
Rather,   we  must   determine  what   level  of  deference the
Secretary’s litigating positions are to receive.

                                       16
(affording Chevron deference to the Secretary’s interpretations,

albeit of her own regulations).

      Not every agency interpretation of an ambiguous statute is

entitled to full Chevron deference, such that the agency’s view

is upheld so long as it is reasonable.                          Rather, such strong

deference “is limited to circumstances where (1) Congress has

given the agency authority to make rules carrying the force of

law   and    (2)     the   agency’s     interpretation        is      rendered    in   the

exercise of that authority.”               A.T. Massey Coal Co. v. Holland,

472 F.3d 148, 166 (4th Cir. 2006) (citing United States v. Mead

Corp., 533 U.S. 218, 226–27 (2001)).

      The Mine Act explicitly grants the Secretary of Labor the

“authority     to     make     rules    carrying    the      force     of   law,”      id.;

indeed, he is directed to do so, in accordance with the notice-

and-comment         rulemaking         procedures       of      the     Administrative

Procedure Act (APA).            30 U.S.C. § 811(a) (“The Secretary shall

by rule in accordance with procedures set forth in this section

and   in     accordance        with     [APA    notice-and-comment             rulemaking

procedures]         develop,    promulgate,      and      revise       . . .     improved

mandatory health or safety standards for the protection of life

and prevention of injuries in coal or other mines.”); see also 5

U.S.C.      § 553     (prescribing       the    rules     for      notice-and-comment

rulemaking under the APA).                Without a doubt, then, the first

element articulated in Mead is satisfied.

                                           17
       In this case, however, whether Mead’s second requirement is

satisfied          presents     a     more     challenging         issue.         The    agency

interpretations           we    are     asked    to   consider          here    are     not   the

product       of    the    Mine       Act’s     express      delegation         of    lawmaking

authority.          Rather, they are positions taken by the Secretary in

the course of litigation, first before the Commission and now

before this Court.              Consequently, we must determine whether the

Secretary’s relevant positions are “rendered in the exercise” of

the necessary “authority.”                A.T. Massey, 472 F.3d at 166.

       When    an     agency’s        interpretation         derives      from       notice-and-

comment rulemaking, it will almost inevitably receive Chevron

deference, since in that case, the interpretation results from

“a relatively formal administrative procedure tending to foster

the    fairness           and       deliberation        that       should        underlie      a

pronouncement” of law.                 Mead, 533 U.S. at 230.                  However, where

an agency has interpreted a statute without aid or constraint

from    APA        rulemaking        procedures,        we    must       look    for     “other

circumstances” suggesting that Congress intended for an agency’s

reasonable interpretation to bind reviewing courts.                               Id. at 231.

In the past, we have generally found such circumstances to exist

only     where        there         are      “indicia        of     a     legislative-type

determination—i.e.              those     of     weighing         conflicting         policies,

considering adversarial viewpoints, [and] promulgating forward-



                                                18
looking rules of general applicability.”                       A.T. Massey, 472 F.3d

at 166.

       Those       “legislative-type”              traits      do        not     accurately

characterize the interpretive positions the Secretary adopts in

litigation.         No doubt, when the Secretary conducts inspections,

issues citations, and proposes civil penalties for violations,

he   does     so    pursuant     to    an     express      statutory        delegation    of

authority, see 30 U.S.C. §§ 813, 814(a), 815(a), 820(a), and we

do not question that in carrying out that enforcement role, the

Secretary’s decisions are informed by considerations of policy

and internal consistency.              Indeed, we have previously recognized

that    the    Secretary     is      the    authoritative         policymaking        entity

under   the     Mine    Act’s       scheme.         Wamsley,      80     F.3d    at   113–14.

However, when the Secretary defends the issuance of a citation

before a reviewing court, he does so more as prosecutor and less

as legislator.

       Two     fundamental      aspects        of    the    Secretary’s          litigating

positions          distinguish         them        from     the          “legislative-type

determinations” to which we afford Chevron deference.                                  First,

and most importantly, the Secretary’s litigating positions are

not binding or precedential, a factor which has been highlighted

as   significant,      and     at     times    dispositive,         by    this    Court   and

others in declining to apply Chevron deference.                             See Mead, 533

U.S. at 233 (noting as significant that a tariff classification

                                              19
determination’s “binding character as a ruling stops short of

third parties”); Martinez v. Holder, 740 F.3d 902, 909–10 (4th

Cir.    2014)     (“When      issuing      a     single-member,         nonprecedential

opinion, the [Board of Immigration Appeals] is not exercising

its authority to make a rule carrying the force of law, and thus

the opinion is not entitled to Chevron deference.”); Precon Dev.

Corp. v. U.S. Army Corps of Eng’rs, 633 F.3d 278, 290 n.10 (4th

Cir.    2011)        (declining     to     apply      Chevron        deference       to   an

interpretation offered “in a non-binding guidance document”).

       Second, unlike the rules it promulgates through the APA’s

notice-and-comment            rulemaking         procedures,          the     Secretary’s

litigating      positions      do   not    arise     out   of    a    formal       procedure

intended to foster the “fairness and deliberation that should

underlie a pronouncement [of law].”                   Mead, 533 U.S. at 230.              The

Secretary       makes    enforcement           choices     and       adopts    litigating

positions through an internal and discretionary process closed

to     public    input.         See       Speed      Mining,     528        F.3d    at    317

(characterizing         the   Secretary’s         citation      decisions      under      the

Mine    Act     as    “discretionary”          and    “therefore        unreviewable”);

Didrickson v. U.S. Dep’t of Interior, 982 F.2d 1332, 1339 (9th

Cir. 1992) (“[L]itigation decisions are generally committed to

agency discretion by law . . . .”).




                                            20
     For     these      reasons,     we     conclude     that     the     Secretary’s

litigating       positions   are    not     entitled     to    Chevron    deference. 7

That being said, deference is still due.                      Keeping in mind that

“developing       rules    and     enforcing      them    endow     the     Secretary

with . . . ‘historical familiarity and policymaking expertise,’”

Wamsley, 80 F.3d at 114 (quoting Martin, 499 U.S. at 153), the

Secretary’s position is owed deference to the extent it has the

“power to persuade,” Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944).     In evaluating the Secretary’s interpretation, we will

weigh     “the    thoroughness      evident      in    its     consideration,       the

validity    of    its   reasoning,        its   consistency      with    earlier    and

later pronouncements, and all [other relevant] factors.”                      Id.




     7  This   determination   is  consistent  with  Martin   v.
Occupational Safety & Health Review Commission, 499 U.S. 144,
152–53 (1991), which afforded deference to the Secretary’s
litigating positions interpreting the Occupational Safety and
Health Act (“OSH Act”) rather than to the Occupational Safety
and Health Review Commission’s adjudicative interpretations of
that Act.     Martin indicated that we should defer to the
Secretary, but it did not specify the degree of that deference—
indeed, it did not cite Chevron. Id. Additionally, in Martin,
the Secretary’s interpretations of OSH Act regulations were at
issue, and an agency’s interpretations of its own regulations
have consistently been afforded greater deference than its
direct interpretations of the governing statute.    See Auer v.
Robbins, 519 U.S. 452, 461 (1997).       In Wamsley, we applied
Martin’s guidance in the context of the Mine Act, but again
nowhere specified the level of deference owed to the Secretary’s
interpretations. 80 F.3d at 114–15. Moreover, both cases were
decided prior to Mead, which outlined the contours of Chevron
deference and guides our reasoning today.

                                           21
                                                  C.

      The disputed standards relevant to both the permissibility

and   accumulations           violations          each       implicate     the    Commission-

developed          Mathies    test.         First          articulated    more    than    three

decades ago, the test has since been consistently applied by the

Commission and ALJs to determine whether a violation is S&S, and

has   been     adopted        by   federal         appellate      courts.         See,   e.g.,

Peabody Midwest Mining, LLC v. Fed. Mine Safety & Health Review

Comm’n, 762 F.3d 611, 616 (7th Cir. 2014); Buck Creek Coal, Inc.

v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir.

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103

(5th Cir. 1988).             It is therefore unsurprising that in light of

the statute’s ambiguity, both parties recognize the Mathies test

as authoritative in resolving the issues disputed here.

      Under Mathies, to establish that a violation is S&S, the

Secretary      must     establish          “(1)    the       underlying    violation      of   a

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.”

Mathies,       6    FMSHRC    at     3–4    (footnote          omitted).         The   parties’

dispute      regarding        both    the     permissibility             and   accumulations



                                                  22
violations       implicates          the     proper    interpretation          of    Mathies’

third prong.

       Regarding       the   permissibility                violations,       the    Secretary

argues     that       “the   third         prong      of     Mathies    focuses      on    the

likelihood that the hazard to which the violation contributes

will     cause    injury,        not       on   the        likelihood    of    the     hazard

occurring.”             Respondents’            Br.    at      27    (emphasis        added).

Consequently, when analyzing this third prong, the existence of

the relevant hazard—in this case, the ignition and escape of hot

gas through an impermissibly large enclosure opening—should be

assumed.

       By contrast, Knox Creek argues that the Secretary has a

burden under Mathies’ third prong “to prove it was reasonably

likely that the violations would result in a serious injury.”

Petitioner’s Br. at 28 (emphasis added).                           In Knox Creek’s view,

in making this probability determination, all facts surrounding

the cited violation are relevant, including the likelihood of

other causally contributing events—such as, in this case, the

likelihood       of    arcing    and       sparking.          In    short,    the    parties’

dispute is whether evidence of the likelihood of the hazard is a

necessary component of Mathies’ third prong.

       Without        affording        the      Secretary’s         interpretation        full

Chevron     deference,          we     find      the       Secretary’s       interpretation

nevertheless persuasive, being “consisten[t] with earlier . . .

                                                23
pronouncements” and “thorough[]” in its reasoning.                    Skidmore,

323 U.S. at 140.         The Secretary’s position that the relevant

hazard should be assumed when analyzing Mathies’ third prong is

consistent     with   Commission      precedent.        Indeed,      as    if     to

anticipate the very argument Knox Creek makes before us here,

the Commission has previously distinguished the terms “hazard”

and “violation,” and has clarified that the relevant hazard may

be assumed when analyzing Mathies’ third prong.

     In   Secretary      of   Labor   v.    Musser    Engineering,    Inc.,       32

FMSHRC    1257,   1280    (2010),     the   relevant    violation     was       “the

failure to have an accurate map,” and the relevant hazard was

“the danger of breakthrough to an adjacent mine and resulting

inundation.”      The    mine   operator     argued    then,   as   Knox     Creek

argues    now,    that    under     Mathies’    third    prong,      there      was

insufficient evidence that the violation was reasonably likely

to cause injury.         Id. at 1280–81.        “However,” the Commission

clarified, “that is not the test.               The test under the third

element is whether there is a reasonable likelihood that the

hazard contributed to by the violation . . . will cause injury.

The Secretary need not prove a reasonable likelihood that the

violation itself will cause injury, as [the operator] argues.”

Id. at 1281 (emphasis added).          In finding that the Secretary had

indeed satisfied Mathies’ third prong, the Commission went on to

assume the existence of the relevant hazard, i.e., breakthrough

                                       24
and inundation, and to consider only “evidence regarding the

likelihood of injury as a result of the hazard,” such as the

perils of drowning, hypothermia, and suffocation.                       Id.

      Every federal appellate court to have applied Mathies has

also assumed the existence of the relevant hazard when analyzing

the test’s third prong.               See Peabody Midwest, 762 F.3d at 616

(“[T]he    question      [presented         by    Mathies’      third   prong]    is   not

whether it is likely that the hazard . . . would have occurred;

instead, the ALJ had to determine only whether, if the hazard

occurred       (regardless      of    the    likelihood),         it    was   reasonably

likely that a reasonably serious injury would result.”); Buck

Creek, 52 F.3d at 135 (accepting as sufficient for satisfying

Mathies’ third prong the ALJ’s finding “that in the event of a

fire [i.e., the relevant hazard], smoke and gas inhalation by

miners    in    the    area    would      cause    a    reasonably      serious   injury

requiring      medical    attention”        (emphasis      added));      Austin   Power,

861 F.2d at 103–04 (finding Mathies’ third prong satisfied where

a workplace fall, i.e., the relevant hazard, was from a height

of   thirty-six       feet    and    so   “would       almost   certainly     result   in

serious injury,” without requiring evidence that a fall itself

was likely); cf. Cumberland Coal Res., LP v. Fed. Mine Safety &

Health Review Comm’n, 717 F.3d 1020, 1025–27 (D.C. Cir. 2013)

(accepting the Secretary’s interpretation that the Mathies test

allows the decisionmaker to assume the existence of an emergency

                                             25
when evaluating whether the violation of an emergency safety

standard is S&S).

      Given the language and structure of the Mathies test taken

as a whole, this approach makes sense.              In its first key opinion

interpreting the statute’s S&S provision, 30 U.S.C. § 814(d)(1),

the      Commission      identified        two    sensible        considerations—

“likelihood and gravity”—that rendered a violation S&S.                      Sec’y

of Labor v. Nat’l Gypsum Co., 3 FMSHRC 822, 828 (1981).                          In

short,     the   Commission      reasoned    that   a   violation      should    be

considered S&S when it is reasonably likely to result in serious

harm.      See id.     The later-developed Mathies test, at its core,

also reflects a dual concern for both likelihood and gravity.

In our view, the second prong of the test, which requires the

showing     of   a   “discrete    safety    hazard—that     is,    a   measure   of

danger to safety—contributed to by the violation,”                     Mathies, 6

FMSHRC at 3, primarily accounts for the Commission’s concern

with the likelihood that a given violation may cause harm.                    This

follows because, for a violation to contribute to a discrete

safety hazard, it must be at least somewhat likely to result in

harm.

      By    contrast,    we   think    that      Mathies’    third     and   fourth

prongs, which the Commission expected would “often be combined

in a single showing,” Mathies, 6 FMSHRC at 4, are primarily

concerned with gravity—the seriousness of the expected harm.                     To

                                       26
the extent that the third and fourth prongs are concerned with

likelihood at all, they are concerned—by their very terms—with

the likelihood that the relevant hazard will result in serious

injury.     Id. at 3–4.           Requiring a showing at prong three that

the violation itself is likely to result in harm would make

prong two superfluous.

      Assuming     the     existence       of     the    relevant    hazard      at    prong

three is also justified by policy considerations.                              Under Knox

Creek’s     interpretation           of     Mathies,         compliance        with     some

mandatory safety standards could preclude an S&S finding for the

violation    of    an     entirely      separate        mandatory    safety     standard.

For   instance,      in    this     case,       Knox     Creek     suggests     that     the

insulation        surrounding        its        electrical       wiring        should     be

considered as relevant evidence cutting against an S&S finding

with respect to each of the permissibility violations.                                But as

the Secretary points out, “[i]f mine operators could avoid S&S

liability—which is the primary sanction they fear under the Mine

Act—by    complying       with     redundant       safety      standards,       operators

could pick and choose the standards with which they wished to

comply.”     Respondents’ Br. at 37.               Such a policy would make such

standards     “mandatory”          in      name     only.           It    is    therefore

unsurprising      that     other    appellate       courts       have    concluded      that

“[b]ecause redundant safety measures have nothing to do with the

violation,     they        are     irrelevant           to   the     [S&S]      inquiry.”

                                            27
Cumberland Coal, 717 F.3d at 1029; see also Buck Creek, 52 F.3d

at 136.

       Finally, the purpose and legislative history of the Mine

Act support the Secretary’s interpretation.                           The Federal Coal

Mine    Health    and    Safety    Act   of      1969    (“Coal      Act”),      which     was

incorporated in full into the Mine Act, declared that the mining

industry’s “first priority and concern . . . must be the health

and safety of its most precious resource—the miner.”                                  Pub. L.

No. 91-173, § 2(a), 83 Stat. 742, 742–43 (codified at 30 U.S.C.

§ 801(a)).             More   specifically,          the      Coal        Act    tightened

permissibility         requirements      in      light   of     a    spate      of    methane

explosions, some of which may have been triggered by relatively

minor    ignition       sources.      See     S.    Rep.      No.    91-411,         at   26–31

(1969).       Additionally, the legislative history of the Mine Act

suggests that Congress did not intend for the S&S determination

to be a particularly burdensome threshold for the Secretary to

meet.     See Consolidation Coal Co. v. Fed. Mine Safety & Health

Review Comm’n, 824 F.2d 1071, 1085 (D.C. Cir. 1987) (concluding

that    the   legislative     history       of     the   Mine       Act   “suggests        that

Congress intended all except ‘technical violations’ of mandatory

standards to be considered significant and substantial”).

       In short, we find that the Secretary’s interpretation is

persuasive       and    consistent    with       both    Commission        precedent        and



                                            28
legislative intent.             None of Knox Creek’s arguments persuades us

otherwise.

       Knox    Creek       attempts,    for    example,    to    paint    a   doomsday

picture, arguing that the Secretary’s interpretation will result

in designating every permissibility violation S&S, or that it

will    result        in    effectively       changing     Mathies’       “reasonable

likelihood”        of      occurrence       to    a   simple      “could      occur.”

Petitioner’s Reply Br. at 10.                 These arguments are ill-founded,

for two reasons.

       First, even under the Secretary’s interpretation, the third

Mathies       prong     still    requires      evidence    that    the     hazard      is

reasonably likely to result in an injury-producing event, which

in this case means evidence that the escape of hot gas from an

enclosure      will     trigger    an   explosion     in   the    mine    atmosphere.

That evidence will not be available where the mine’s atmosphere

does not contain explosive concentrations of methane.

       Second, as we discussed above, the second prong of Mathies

requires proof that the violation in question contributes to a

“discrete safety hazard,” which implicitly requires a showing

that the violation is at least somewhat likely to result in

harm.     See Sec’y of Labor v. Black Beauty Coal Co., 34 FMSHRC

1733, 1741 n.12 (2012) (“[I]f the roadway here had lacked berms

for    only    a   short     distance    [thereby     making     the     hazard   of    a

vehicle falling off the edge less likely], or if the violation

                                            29
had been otherwise insignificant, the trier-of-fact could have

found that the violation did not contribute to a discrete safety

hazard, and hence that the Secretary had failed in her proof

under the second element of Mathies.”), aff’d sub nom. Peabody

Midwest Mining, LLC v. Fed. Mine Safety & Health Review Comm’n,

762 F.3d 611 (7th Cir. 2014); Sec’y of Labor v. Cumberland Coal

Res., LP, 33 FMSHRC 2357, 2368 (2011) (similarly considering

evidence that the violation, under the particular circumstances,

was likely to contribute to the relevant hazard under Mathies’

second prong), aff’d sub nom. Cumberland Coal Res., LP v. Fed.

Mine Safety & Health Review Comm’n, 717 F.3d 1020 (D.C. Cir.

2013); Sec’y of Labor v. E. Associated Coal Corp., 13 FMSHRC

178, 183 (1991) (same); Utah Power & Light Co. v. Sec’y of

Labor, 12 FMSHRC 965, 970 (1990) (same).

      Nonetheless,     despite    the        numerous    Commission     decisions

considered    above,    Knox     Creek       argues     that   the    Secretary’s

approach is inconsistent with Commission precedent, focusing on

two cases.    In the first, Secretary of Labor v. Texasgulf Inc.,

10   FMSHRC   498,   501   (1988),      the    Commission      required   that   a

permissibility violation’s S&S determination “be based on the

particular facts surrounding the violation,” which Knox Creek

argues is inconsistent with the Secretary’s method of assuming

the hazard at prong three.         As the above discussion should make

clear, however, the Secretary’s approach still allows plenty of

                                        30
room for a fact-intensive S&S analysis, both under prong two,

where     the     Secretary        must     establish       that      the        violation

contributes to a discrete safety hazard, and within prongs three

and four, where evidence is still necessary to establish that

the hazard is reasonably likely to result in a serious injury.

      Moreover, the Commission expressly distinguished this case

from Texasgulf on the grounds that, whereas the Tiller Mine was

classified as “gassy,” with high concentrations of methane in

its     atmosphere,       “[t]he     mine        in   Texasgulf       contained        only

miniscule       amounts    of   methane      and      had   never     had    a    methane

ignition or explosion.”              Knox Creek, 36 FMSHRC at 1133 n.11.

When the Commission in Texasgulf required the consideration of a

“confluence of factors” in making an S&S determination, it was

specifically      concerned     with      whether      there    was    “a    sufficient

amount     of      methane      in     the        atmosphere        surrounding         the

impermissible gaps and ignition sources.”                      Texasgulf, 10 FMSHRC

at 501.     Texasgulf is silent as to whether the Secretary must

present evidence that the hazard itself is reasonably likely at

prong three.

      More persuasively, Knox Creek cites Secretary of Labor v.

Zeigler Coal Co., 15 FMSHRC 949, 953 (1993), which involved a

noncompliant       power     connection      whose     related      hazard       was    “an

ignition that could result in an explosion.”                          The Commission

specified that in satisfying Mathies’ third prong, a “reasonable

                                            31
likelihood of an ignition is [a] necessary precondition to the

reasonable likelihood of an injury.”                      Id.     Zeigler Coal does

appear to support Knox Creek’s position that evidence of the

likelihood of the hazard is relevant at prong three.                               However,

that position is flatly contradicted by more recent Commission

precedent, Musser, 32 FMSHRC at 1281, by the unanimous voice of

federal appellate courts, see Peabody Midwest, 762 F.3d at 616;

Cumberland Coal, 717 F.3d at 1025–27; Buck Creek, 52 F.3d at

135;   Austin    Power,      861    F.2d    at    103–04,       and   by     the   various

considerations outlined above.                   Accordingly, the scales still

tip decidedly in the Secretary’s favor.

       In sum, we accept the Secretary’s interpretation that the

relevant hazard should be assumed when analyzing Mathies’ third

prong.       This      interpretation        has        the   necessary       “power    to

persuade”:      it   is     not    only     consistent         with    Commission      and

appellate    court        precedent    applying          Mathies,      but    also     well

supported by the Mine Act’s history and purpose.

       Applying this legal standard to the three permissibility

citations,      we     have       little     trouble          concluding       that     the

Commission’s     S&S      determinations         were    supported     by     substantial

evidence.            Neither        party         disputes       the         Commission’s

characterization of the relevant hazard as the escape of ignited

gas into the mine atmosphere through the impermissibly sealed

enclosure.      The dispositive question, then, is whether there was

                                            32
substantial evidence to support the Commission’s conclusion that

this    hazard         was    reasonably         likely    to    cause       injury.          Quite

clearly, there was.

       Both parties stipulated before the ALJ that the Tiller Mine

is a “gassy” mine, “liberat[ing] more than 500,000 cubic feet of

methane or other explosive gases during a 24-hour period, and

thus . . . subject to . . . 10-day spot inspections.”                                  J.A. 316.

Consequently,          the     ALJ    found      that,    with    respect      to      the    facts

surrounding         each       violation,        an    accumulation          of     methane      at

explosive      concentrations              was    reasonably         likely,       and    that    a

resulting      explosion            was    reasonably      likely       to     cause      serious

injuries to miners.                  Knox Creek did not even argue before the

Commission that these findings were unsupported by substantial

evidence.          For each of the permissibility violations, we thus

find Mathies’ third prong satisfied, and the Commission’s S&S

determinations proper.

                                                 D.

       The   parties’          dispute      with      respect     to    the       accumulations

violation also relates to Mathies’ third prong.                                The Secretary

argues    that      “a       mine    operator’s       intent     to    abate      [a     violation

should]      not       mitigate       an   otherwise       S&S    violation,”            i.e.,   by

rendering          a     resultant            injury       not        reasonably           likely.

Respondents’ Br. at 52.                    According to the Secretary, although

S&S    liability         may    be    mitigated        where     a    violation          is   being

                                                 33
actively     abated,      that    can     only    be    the   case   where    the   mine

operator “has ordered the relevant equipment or areas to be shut

down and has already begun active repairs.”                          Id.     Knox Creek

counters that the Secretary’s proposed standard is inconsistent

with Texasgulf’s requirement that ALJs examine a “confluence of

factors” surrounding a violation in order to resolve Mathies’

third prong.        Texasgulf, 10 FMSHRC at 501.

     Once more, however, we find the Secretary’s interpretation

persuasive.     For over thirty years, the Commission has held that

an S&S determination ought to be “made at the time the citation

is issued (without any assumptions as to abatement).”                          Sec’y of

Labor   v.   U.S.     Steel      Mining    Co.,    6    FMSHRC   1573,     1574   (1984)

(emphasis added); see also Sec’y of Labor v. McCoy Elkhorn Coal

Corp., 36 FMSHRC 1987, 1991 (2014) (rejecting the argument that

an S&S finding was erroneous “because [the mine operator] was in

the process of cleaning the accumulations when the inspector

arrived”); Sec’y of Labor v. Gatliff Coal Co., 14 FMSHRC 1982,

1986 (1992) (finding that the ALJ erred in “inferring that the

violative condition would cease” in the course of normal mining

operations).         It   is     true   that      the   Commission    has    applied   a

“confluence     of        factors”        approach      to    S&S     determinations.

However,     this    approach      does     not    prevent    the    Commission     from

providing further clarification as to what factors ought to be

evaluated, and how.         That is all the Commission did here.

                                            34
       The Secretary’s interpretation makes sense.                       First, planned

but not-yet-begun abatement efforts do not actually reduce the

risk of harm to miners posed by the relevant violation, as that

risk is properly evaluated at the time of citation.                               That is

illustrated by the facts here, where miners were scheduled to

begin   mining     within      thirty     minutes     of   when    the    citation    was

issued, but the accumulations were not actually abated until

nearly an hour later.

       Second,     if    evidence    that       abatement     efforts       are    merely

intended    could       mitigate    an    S&S    determination,         mine    operators

might have incentives to “plan” more abatement measures than

they have the actual capacity to perform.                     Even assuming good-

faith    intentions       to    abate     on    the   part    of    mine       operators,

however, plans are inherently less reliable than deeds, and it

is   therefore     reasonable       for    the    Secretary       and    Commission    to

discount evidence of the former.                  See Sec’y of Labor v. Eagle

Nest, Inc., 14 FMSHRC 1119, 1123 (1992) (rejecting the argument

that    a   mine    operator       may    assume      that    miners      will     behave

cautiously in order to mitigate an S&S finding); Sec’y of Labor

v. U.S. Steel Mining Co., 6 FMSHRC 1834, 1838 n.4 (1984) (noting

the “inherent vagaries of human behavior”).

       Finally, the Mine Act’s history and purpose support the

Secretary’s interpretation.                As we have previously mentioned,

the statute’s chief concern is with the health and safety of the

                                           35
miner, 30 U.S.C. § 801(a), and it is for this reason that mine

operators face strict liability for mandatory safety standard

violations under the Act.                  See Freeman United Coal Mining Co. v.

Fed. Mine Safety & Health Review Comm’n, 108 F.3d 358, 360 (D.C.

Cir.    1997)       (citing       30       U.S.C.       § 820(a)).                Further,    the

accumulations “standard was directed at preventing accumulations

in the first instance, not at cleaning up the materials within a

reasonable period of time after they have accumulated.”                                      Sec’y

of   Labor    v.    Old    Ben    Coal       Co.,       1    FMSHRC    1954,        1957   (1979)

(discussing H. Rep. 91-761 (1969) and H. Rep. 91-563 (1969)).

Discounting        evidence      of    intended         but    not-yet-begun          abatement

efforts when making S&S determinations is consistent with these

stringent enforcement standards, which have as their lodestar

miner health and safety.

       We    therefore      accept         the        Secretary’s          argument    and     the

Commission’s ruling that evidence of intended but not-yet-begun

abatement efforts ought not be considered when making an S&S

determination.            Consequently,           since       no    actual        abatement   was

underway     at     the    time       of     citation,         it     is     clear    that    the

Commission’s S&S determination with respect to the accumulations

violation was valid.

                                              III.

       In sum, applying the correct legal standard to the facts

surrounding        the    four    violations            at    issue        here    compels    the

                                                 36
conclusion     that   the   Commission    reached—that   is,     that   those

violations   were     significant   and   substantial    under    30    U.S.C.

§ 814(d)(1).    Accordingly, we deny the petition for review.



                                              PETITION FOR REVIEW DENIED




                                    37
