Secretary of Labor v. The Doe Run Company

Read the official release (fmshrc.gov)

Plain-English summary

A roof fall at Doe Run's underground Missouri metal mine crushed a scaling machine and killed its operator. MSHA cited Doe Run for inadequate ground support and for scaling from a location exposed to falling material. The Commission majority held that the broadly worded standards required the reasonably prudent person test and that the accident alone did not establish automatic violations. Because the mine's conditions, practices, inspections, equipment, and prior experience did not give fair notice that additional support or a different scaling position was required, the majority vacated both citations. Commissioners Mary Lu Jordan and Arthur Traynor dissented separately, concluding that the standards were violated and that the case should be remanded for separate gravity, negligence, and penalty findings.

Decision snapshot

• Cited standards: 30 C.F.R. § 57.3360; 30 C.F.R. § 57.3201
• Outcome: Both ground-control and scaling citations were reversed and vacated.
• Key point: A fatal accident does not by itself prove violation of a broadly worded standard when a reasonably prudent operator lacked fair notice of the additional precautions MSHA later demanded.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY
OF LABOR,                               :                                     

MINE
SAFETY AND HEALTH                      :                                                         

ADMINISTRATION
(MSHA)                         :        Docket Nos.    CENT 2015-0318-RM 

:                                CENT 2015-0319-RM

v.                                
              :                               CENT 2015-0441-M

:                                CENT 2016-0055-M

THE
DOE RUN COMPANY                             :

BEFORE:
Rajkovich, Chairman; Jordan, Young, Althen and Traynor, Commissioners

DECISION

BY:
Rajkovich, Chairman; Young and Althen, Commissioners

These proceedings arise under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018)
(“Mine Act” or “Act”). At issue is whether the Administrative Law Judge
erred in affirming
two citations issued by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) to The Doe Run Company (“Doe Run”) at its Fletcher
Mine, an underground lead, copper, and zinc mine in Missouri.

Both citations arise from the fatality
of a scaler operator, John Hoodenpyle. One citation alleges that Doe Run failed to
design and install an adequate support system to control the ground in an area
where miners worked or traveled in performing their assigned tasks, in
violation of 30 C.F.R. § 57.3360. [1]
The other citation alleges that Hoodenpyle was operating a scaling machine from
a location that exposed him to falling material, causing the fatality in
violation of 30 C.F.R. § 57.3201. [2]
Both violations were designated as significant and substantial (“S&S”). [3] The ground
support violation was alleged to be the result of high negligence and the
scaling violation designated as the result of moderate negligence.

In affirming both citations, [4] the Judge
concluded that the fatal roof fall [5]
established a violation of both standards. 40 FMSHRC 1165, 1205-10 (July 2018)
(ALJ). The Judge also vacated the S&S designations and reduced both
negligence designations to “low.”

Doe Run and the Secretary of Labor each
filed a petition seeking discretionary review of the Judge’s decision, both of which
the Commission granted. As set forth below, we conclude that the Judge
erroneously failed to apply the “reasonably prudent person” test to the alleged
violations of the broadly-worded standards cited by the Secretary. Further, the
cited standards did not provide the operator with fair notice of the obligations
the Secretary seeks to impose in this enforcement action. Accordingly, we
reverse the Judge’s findings of violation and vacate the citations.

I.

Factual and
Procedural Background

A.        Factual
Background

Doe Run is a large mine operator in
Missouri with six underground mines in what is geologically known as the new
Viburnum Trend (“The Trend”). The Trend is a 32.5 mile-long lead, copper, zinc
and ore deposit. The host rock in the Trend, including the Fletcher mine, [6]    is
dolomitic limestone, or “dolomite,” an altered limestone that is very high in
strength and stability. Consequently, the ground conditions at Fletcher and
throughout the Trend were described by witnesses from both sides as generally
“stable” (Tr. 217-18), and “competent,”  with no significant issues in the
stability of the host rock. Tr. 424-25.

Despite these general conditions, a
fatal roof fall occurred on January 21, 2015.    About 175 tons of rock – a
section 55 feet long by 20 feet wide by 6 feet deep – collapsed onto a
mechanical scaling machine that Hoodenpyle was operating. [7] Tr. 73, 647. He was
inside the scaler’s reinforced cab about 60 feet from the face. Tr. 206-07. The
roof fall crushed and killed him. The cab was under the bolted area when the
roof fell. Tr. 311.

Approximately 75% of the fall area was
unbolted, and 25% was bolted with six-foot Split Set friction stabilizer bolts.
Tr. 114, 195, 252. The scaler had a reinforced cab with a falling object
protection system (“FOPS”). In addition to the reinforced cab, the scaler also
had a rollover protection system (“ROPS”). During an MSHA inspection the day
before the accident, both the scaler and the ROPS/FOPS operator’s compartment
were found to be in good operational condition with no damage.

Before the accident, another miner
working in the area, Thomas Welch, heard Hoodenpyle start and begin to use the
scaler around 10:00 pm. Tr. 513; S. Ex. 8 at 3.     Welch recalled seeing the
roof bolts in that area and testified that “everything looked fine.”   Tr. 519.
Hoodenpyle scaled for about 15 minutes before Welch heard the loud sound of a
roof collapse. “It sound[ed] like a lot of rock.” Tr. 513-14. He could no
longer hear the scaler after the collapse.

Vern Roark, a roof bolter with 18 years
of roof bolting experience, testified that on January 5, 2015, he had installed
Split Set bolts in the area of the accident. He had examined the area on
arrival and said everything “looked perfectly fine.” Tr. 466. Roark testified
that   “[t]he back was fine. There was no loose on it. It was in good color,
solid, no voids in it.”     Tr. 467. Roark also drilled a hole and sounded the
back once he set his bolting machine up. He testified that the back was solid
with no “drumminess” indicating a hollow area or void above the roof. Tr. 467.

MSHA Inspector Jeremy Kennedy [8] had conducted
an inspection of the mine about eight hours before the January 21 accident. According
to Inspector Kennedy, the active faces and active roadway in the area had all
been free of adverse conditions. Kennedy performed a visual inspection of the
back and ribs and walked up to the face between pillars 7517 and 7561, the area
of the eventual fall. He testified that he had not noticed anything unusual on
the face and had not observed any “change” that would have indicated the
existence of adverse ground conditions. Tr. 105. The pillars had appeared to be
adequately sized, with nothing out of the ordinary, and the widths of the
drifts and crosscuts had been normal. In addition, regarding the entire area
inspected, Kennedy had written “no loose noted” and “ok” in his General Field
Notes. Tr. 101; DR Ex. AA at 3.

Kennedy had not observed “anything that
was not typical” when he walked directly under the back that would fall later that
evening. Tr. 57, 102. He testified that the back had looked smooth and “didn’t
seem to have any unusual features to it.” Tr. 59-60, 102. He further testified
that he had not recalled seeing any churned or disrupted rock in the area and
had not noticed any loose ground. He had also inspected the ground support in
the area and testified that everything had appeared accurate. He had inspected
the last two rows of bolts between pillars 7508 and 7516 (the bolts that would
later fall) and they appeared adequately installed and flush to the back. Kennedy
also had not noticed any abnormal noises such as popping or cracking.       In
sum, he observed nothing abnormal and nothing that would cause him concern
about hazardous ground conditions.

MSHA Inspector Michael Van Dorn led the
agency’s investigation into the accident, joined by inspector Kennedy,
geologist James Vadnal, and engineer Gregory Rumbaugh from MSHA Technical
Support. On June 10, 2015, MSHA issued its accident investigation report. The
report did not identify the precise geological cause of the roof fall, nor did
any of the witnesses do so definitively at the hearing. The report concluded
that Doe Run should have drilled test holes before drilling holes for blasting
to identify hazardous roof conditions and that there should have been a more
effective way for miners to communicate hazards to management. S. Ex. 8 at 6-7.
The report found that the roof fall occurred because the roof was not
adequately supported, and that resin bolts should have been used. Id . In
addition, the report concluded that the resin bolts should have been installed
no more than 30 feet back from the face. S. Ex. 8 at 6. On March 11, 2015, Van
Dorn issued both citations. S. Ex. 1; S. Ex. 2.

At the time of the accident, Doe Run was
complying with its internal ground control policy. The policy contained several
requirements with respect to scaling, bolting and test holes. It required,
among other things, workplace examinations, scaling to begin no less than 60
feet back from the face, and a 5x5 standard roof bolt pattern for
intersections. The policy also required one test hole per completed tunnel
intersection. Tr. 429, 446, 449-50; DR Ex. F. The area where the January 21,
2015 roof fall occurred was not a completed intersection. There had been no
unplanned reportable roof falls at Fletcher between the establishment of the
revised ground control policy in 1998 [9]
and the 2015 roof fall. According to the recollection of the mine’s operations
manager, Randall Hanning, MSHA repeatedly had the opportunity to review     Doe
Run’s ground control policy and had never raised any objections to it before
the accident occurred.

B.
       The Judge’s Decision

The Judge affirmed the violations of
sections 57.3201 and 57.3360, holding that “where there is an accidental roof
fall causing death . . . the fact of the fatal accident itself, by reason of
strict liability, demonstrates a per se violation of the safety standard.”
40 FMSHRC at 1209 (emphasis omitted). In concluding that the facts of the case
here constituted per se violations of both those metal-nonmetal standards
as he interpreted them, the Judge relied exclusively on the Commission’s
interpretation of the general roof control standard applicable to underground coal
mines, 30 C.F.R. § 75.202. Id . at 1207-09 (citing Jim Walter Res.,
Inc. , 37 FMSHRC 493 (Mar. 2015) (“ JWR ”)).

In affirmatively holding that such an
interpretative approach should be extended to the non-nonmetal roof control
standards at issue here, the Judge “intentionally decline[d] to address”
arguments made by both parties that the standards at issue instead be
interpreted, and the violations be determined, pursuant to the application of
the Commission’s “reasonably prudent person test.” Id . at 1209. The
Judge conceded that “[s]uffice it to say that, given the plethora of questions
raised and unresolved, a prudent person test would have made the Secretary’s
case as to the fact of violation much more problematic.” Id .

The Judge went on to delete the S&S
designations associated with both citations, finding that the Secretary failed
to provide “compelling indicia surrounding the instant violations that would
have suggested the reasonable likelihood of” a roof fall on Hoodenpyle while he
scaled. Id . at
1210.
With specific reference to the S&S findings, the Judge rejected the
Secretary’s evidence of disrupted rock and found that the geologic features in
the area would not have indicated a reasonable likelihood of a roof fall. Id.
at 1211. The Judge found that the scaler’s position 60 feet from the face,
its position under bolted roof, and its reinforced cab did not “contribute[] to
the reasonable likelihood of an injurious roof fall onto Hoodenpyle.” Id .
at 1212.

The Judge also rejected the Secretary’s
contention that Doe Run’s use of Split Set bolts, rather than resin bolts, made
a roof fall more likely. Id . at 1212-13. He noted that the Secretary
presented hearsay evidence of prior roof falls but appeared to reject that
evidence. Id . at 1213-14. The Judge opined that “the etiological mystery
at the heart of this accident,” i.e., the fact that no one could definitively
identify the precise geological cause of the roof fall, was relevant to the
S&S analysis. Id . at 1214.

Finally, in one sentence, without
explanation (other than in a very brief footnote that only addressed the
scaling standard citation), the Judge reduced the negligence associated with
both citations to “low.” Id . at 1212 n.72.

II.

Disposition

A.        Summary
of Relevant Law

In contests of citations and orders
under the Mine Act, the Secretary bears the burden of proving each element of
the Mine Act standard allegedly violated. See, e.g. , Stillwater
Mining Co. v. FMSHRC ,
142 F.3d 1179, 1184 (9th Cir. 1998); Miller Mining Co. v. FMSHRC , 713
F.2d 487, 490 (9th Cir. 1983); Sims Crane , 41 FMSHRC 393, 396 (July
2019); Asarco,
Inc .,
14 FMSHRC 941, 950 (June 1992); Allied Chemical Corp. , 6 FMSHRC 1854,
1857-59 (Aug. 1984).

In some instances, standards are written
in such a way that the basic facts may demonstrate that the conditions or
practices prescribed or proscribed by a standard have been violated. Such
instances, wherein the bare facts may demonstrate a violation, are often
referred to as sufficient to constitute “per se” violations of the standard at
issue. See, e.g. ,   Cougar Coal Co. , 25 FMSHRC 513, 520 (Sept. 2003) (holding
that miner’s electric shock, 18-foot fall, and
head injury “per se” met the requirement that an “accident” had
occurred at the mine under the cited standards). In those
instances of such narrowly written standards, the facts of the alleged
violation, standing alone, prove the violation. The operator may be found
“strictly liable” under the standard, given that the facts, standing alone,
show a violative practice or condition clearly satisfying all the terms of the
standard. [10]

In contrast, there are many Mine Act
health and safety standards that are “simple and brief[,] in order to be
broadly adaptable to myriad circumstances.” Kerr-McGee Corp. ,        3
FMSHRC 2496, 2497 (Nov. 1981); see also Alabama By-Products Corp. , 4
FMSHRC 2128, 2130 (Dec. 1982). In those instances, as with any law or
regulation, the standard must “give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may act
accordingly.” Grayned v. City of Rockford , 408 U.S. 104, 108 (1972); see
also Phelps Dodge Corp. v. FMSHRC , 681 F.2d 1189, 1193 (9th Cir. 1982)
(refusing to apply a regulation that “inadequately expresses an intention to
reach the activities to which MSHA applied it”). Consequently, a Mine Act
standard must provide reasonable notice of what it requires or proscribes. U.S.
Steel Corp. , 5 FMSHRC 3, 4 (Jan. 1983); see also Amax Chem. Corp. , 8
FMSHRC 1146, 1149 (Aug. 1986) (rejecting finding a per se violation of a ground
control standard in the metal-nonmetal context and instead holding that “all
relevant factors and circumstances must be taken into account.”).

As a result, in interpreting and
applying broadly worded mine safety and health standards that pertain to a host
of possible conditions and practices, the Commission, with the widespread
approval of the courts of appeals, [11]
has applied the “reasonably prudent person test” to determine whether a
violation has occurred. In other words, the inquiry is whether the standard
prescribed the obligation with sufficient specificity to provide an operator
with adequate notice of the requirements for compliance under the facts of the
case. Then, the analysis turns on whether the facts demonstrate noncompliance
with the standard. See, e.g. , Alabama By-Products , 4
FMSHRC at 2129-30; Ideal Cement Co. , 12 FMSHRC 2409, 2416 (Nov. 1990)
(requiring that the Secretary establish that “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”);
U.S. Steel , 5 FMSHRC at 5 (stating that in order to prove a violation of
a broadly-worded standard regulating mine safety, the Secretary must
demonstrate that the allegedly violative condition “do[es] not measure up to
the kind that a reasonably prudent person would provide under the
circumstances. This evidence could include accepted safety standards in the
field of road construction . . . , considerations unique to the mining
industry, and the circumstances at the operator’s mine.”). Consequently, the
standard must describe the conditions or practices required or forbidden with
sufficient specificity to provide the operator with fair notice of the
obligation. When a standard uses broad language, the operator must act as a
reasonably prudent person in meeting the obligation. If the operator acted as a
reasonably prudent operator, then no violation occurs and there is no
liability.

B.        The
Judge Erred in Not Applying the Reasonably Prudent Person Test.

We
must reverse the Judge’s findings of violations here because he committed basic
legal errors when analyzing the issues presented by the two citations. The
Judge made little attempt to evaluate the ample evidence proffered to determine
Doe Run’s obligations under the cited standards and whether Doe Run had failed
to meet those obligations – the primary judicial decisional rubric in any
administrative adjudication. Tellingly, the Secretary here does not support affirmance
based on the Judge’s analysis.

1.        Mine
Act Strict Liability Cannot Be Used as the Sole Justification to Find a Per Se
Violation of a Mine Act Standard.

We begin by addressing the Judge’s view,
offered sua sponte , that strict liability under the Mine Act frames the
initial question of violations here. See 40 FMSHRC at 1205 (“Given that
the Mine Act is a strict liability statute and . . . that a miner was killed
due to the fall of roof material . . . were there per se violations . .
. ?”). The
Secretary’s post-hearing brief mentioned strict liability only once and then only
in a pro
forma
opening sentence of the argument. Thereafter, he sought to sustain the alleged
violations using only the “reasonably prudent person” standard—the correct
standard. See S.
Post Hearing Br. at 20, 24-28. In fact , the Judge explicitly recognized that
both parties argued the merits under the reasonably prudent person test. 40 FMSHRC
at 1205, 1207. He eventually concluded that strict liability dictated that “per
se” violations of the standards at issue here had been established by the
fatality suffered. Id . at 1209-10. [12]

Such
an approach was plain analytical error. Every determination of whether a
Mine Act standard was violated begins with addressing the specific terms
of the standard in question.    See, e.g. , Peabody Twentymile Mining,
LLC , 931 F.3d 992, 996 (10th Cir. 2019). Here though, the Judge’s
discussion of the terms of the standards was only in passing, and even then was
either non-existent or perfunctory.

In finding
that a per se violation of 30 C.F.R. § 57.3360 occurred, the Judge stated that the
standard “provides in pertinent part that the ground ‘support system be
designed, installed, and maintained to control ground in places where people
work.’” 40 FMSHRC at 1209 (emphasis added). In so doing, the Judge failed to
set forth the relevant terms of section 57.3360 in their full context. The
relevant language of the standard actually states:

Ground support shall be used where
ground conditions, or mining experience in similar ground conditions in the
mine, indicate that it is necessary. When ground support is necessary, the
support system shall be designed, installed, and maintained to control the
ground in places where persons work or travel in performing their assigned
tasks.

30
C.F.R. § 57.3360. In purporting to interpret and apply the primary standard at
issue in the case, the Judge completely ignored the terms of the entire first,
and thus prefatory, sentence of the standard. That sentence requires the
operator to apply ground support where the mining conditions or
experience in similar ground conditions indicate that it is necessary . The
cardinal principle of interpretation is to give effect, if possible, to every
clause or word. See TRW Inc. v. Andrews , 534 U.S. 19, 31 (2001). Regulatory
interpretation cannot be properly undertaken in any other manner. Again, it is
the site-specific location that dictates the application of ground
support. That is precisely what Doe Run did here – apply ground support in the
location where it was necessary.

Regarding
the other standard at issue here, 30 C.F.R. § 57.3201, in concluding that a per
se violation of it had been established, the Judge similarly truncated it. The
standard provides that “[s]caling shall be performed from a location which will
not expose persons to injury from falling material, or other protection from
falling material shall be provided .” 30 C.F.R.       § 57.3201 (emphasis
added). The Judge, however, made no effort to interpret it, simply concluding
that that “[t]he operative language . . . is that ‘scaling shall be
performed from a location which will not expose persons to injury from falling
material . . . .” 40 FMSHRC     at 1209 (emphasis added). In short, he
impermissibly read out of the standard its entire second prong.

The Judge confused the strict liability
the Mine Act imposes for violations with an entirely separate and
different legal concept – common law strict liability for activities, conditions
or practices . See, e.g. , Western Fuels-Utah, Inc. v. FMSHRC ,
870 F.2d 711, 713  (D.C. Cir. 1989) (discussing the difference between Mine Act
strict liability for an undisputed violation of a coal mine roof control
standard and strict liability under common law for the consequences of
ultrahazardous activities); see also Indiana Harbor Belt R. Co. v. Am.
Cyanamid Co. , 916 F.2d 1174 (7th Cir. 1990) (applying Illinois law to
determine whether there was strict liability in tort for accident). In so doing,
the Judge wholly disregarded the reasonably prudent person test that is
fundamental to interpretation of Mine Act standards such as the ones at issue
in this case.

There is operator liability for a mining
condition or practice only if the condition or practice is found to
constitute a violation of the Mine Act or its standards. See Western
Fuels-Utah , 870 F.2d at 715; see also 30 U.S.C. §§ 814(a), 815(d). No
“general duty clause” was included in the Mine Act, unlike with section 5(a)(1)
of the Occupational Safety and Health Act of 1970. S ee
29 U.S.C. § 654(a)(1). Indeed, such a provision was specifically excluded
from the Mine Act. See S. Rep. No. 95-461, at 38-39 (1977),  reprinted
in  Senate Subcomm. on Labor, Comm. on Human Res.,  Legislative
History of the Federal Mine Safety and Health Act of 1977 , at 1316-17
(1978) (“ Mine Act Legis. Hist. ”). [13]

The
Judge’s error regarding the application of strict liability can be seen from
his own direct quote to the legislative history of the Mine Act’s predecessor
statute, the Federal Coal Mine Health and Safety Act of 1969 (“Coal Act”). See
40 FMSHRC at 1206 (“confirm[ing]” that under section 109 of the Coal Act,
the precursor to section 110 of the Mine Act, there was “congressional intent
that there should be ‘liability for violations of the standards against
the operator without regard to fault’”) (quoting H.R. Rep. No. 91-761, at 71
(1969), reprinted in Senate Subcomm. on Labor, Comm. on Labor and Public
Welfare, Part I Legislative History of the Federal Coal Mine Health and
Safety Act of 1969 , at 1515 (1975) (emphasis added).

Further,
both of the cases cited by the Judge as support for his strict liability
analysis  (40 FMSHRC at 1205-06) were cases in which strict liability attached only
after the entirely separate question of whether a violation had been
established was resolved on an entirely independent basis. See Sewell Coal
Co. v. FMSHRC , 686 F.2d 1066, 1070-71(4th Cir. 1982) (rejecting contention
that, due to an ongoing strike by some miners, operator should not be liable
for mine conditions that constituted undisputed violations of MSHA standards); Spartan Mining
Co. ,
30 FMSHRC 699, 706 (Aug. 2008) (“The Mine Act is a strict liability statute,
such that an operator will be held liable if a violation of a mandatory
standard occurs regardless of the level of fault.”) (emphasis added).

Our colleagues, in their separate
dissents in support of affirming the Judge’s erroneous analysis, similarly
misapply Mine Act precedent. They cite Sewell , Western Fuels-Utah ,
Spartan , and a host of other court and Commission cases, which, while
certainly speaking to an operator’s liability once a violation is found, are
far less relevant to the initial task of interpreting a Mine Act standard to
determine an operator’s obligations under it and whether a violation
even occurred. See slip op. at 25-27; 34, 36, 44-45 n.20. [14]
Simply put, strict liability under the Mine Act is not a concept by which a
mine operator can be found liable for an activity, condition or practice for
which it did not have sufficient notice to otherwise properly find the condition
or practice to constitute a violation of a health or safety standard.

2.         Neither
Section 75.202(a) Nor JWR Govern the Interpretation of Sections 57.3360
and 57.3321.

The Judge’s misuse of the concept of
strict liability was compounded by his improper focus, in interpreting the
standards at issue here, on Commission case law involving a significantly
different standard. The Judge looked to 30 C.F.R. § 75.202(a), and concluded
that both of “the mandatory safety standards at issue are essentially
identical ” to it in their “plain meaning.” 40 FMSHRC at 1209 (emphasis
added) (citing JWR , 37 FMSHRC at 495). They are not identical. Section
75.202(a), the general ground control standard for underground coal mines,
simply reads “[t]he roof, face and
ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts.” 30
C.F.R. § 75.202(a).

It
is, of course, correct that all three regulations are directed at preventing
roof falls.   But any similarity ends there. Comparing the terms of section
75.202(a) to the terms of the two standards at issue here, the language
employed in the coal and metal-nonmetal standards is strikingly different in
both instances. Properly reviewed, there is virtually no commonality between
the short and direct obligation under section 75.202 and the broader language
of the subject regulations.

In
reaching his decision, the Judge did not discuss any of these distinctions in
language between section 75.202(a) and the subject standards. As noted, he
entirely omitted quoting the prefatory sentence in section 57.3360, which, as
discussed below, is crucial to understanding the obligations the standard
imposes upon operators. Commonality of any sort, including subject matter, does
not relieve the Commission or the Judge from the duty to examine the actual
words of the regulations. It is simply impossible to conclude that the terms of
two or more standards are “essentially identical” without analyzing all of the
terms of those standards.

The
difference in language in the standards leads us to also reject the claim that
Commission precedent, with respect to violations of section 75.202(a), controls
interpretations of the standards at issue here, and thus the findings of
violations in this case. This includes the Commission majority’s decision in
the JWR roof fall fatality case, which largely focused on the particular
language of that standard in reaching its conclusion. Of course, that language
did not include anything remotely similar to the first sentence of section
57.3360 nor to any part of section 57.3321. [15]

The significant difference between the
language of the specific coal standard that governed in JWR and the
language of the metal-nonmetal regulations at issue here is not the only reason
to reject JWR are as controlling in this case. T here is also a substantial distinction
between the regulation of roof control for coal mines and the regulation of
ground control for metal-nonmetal mines. The coal regulations, as shown in
subpart C in Part 75 devoted to roof control, include specific requirements for
detailed roof control plans. See generally 30 C.F.R. Subpart C. [16]

In
contrast, the underground metal-nonmetal regulations impose no specific roof
control parameters, and that is for good reason. See generally 30 C.F.R. Part 57. Metal-nonmetal
operators deal with diverse conditions, such as varied rock types and material
structures, and they have many different ways to handle those types of
conditions. In short, these are site-specific regulations. This inherent
difference in the nature of metal-nonmetal mining conditions mandates that
metal-nonmetal operators must have flexibility to deal with the conditions as
they see fit, at the immediate site, on a case-by-case basis.

Similar to the Judge, Commissioner
Jordan interprets the standards at issue largely without addressing the exact
terms of the standards and the differences between the regulatory contexts of
coal and metal-nonmetal mines. Instead, she too relies on JWR (as does
Commissioner Traynor), along with other cases in which, based on the
application of the facts to the simple terms of different regulatory standards,
violations of those standards were found. See slip op. at 25-30, 39. Like
JWR , their cited cases provide little to no guidance for how the more
complex standards at issue here are to be interpreted and applied, and do not
stand for the proposition that strict liability under the Mine Act can be
substituted for determining whether a violation was established. [17]

In addition, Commissioner Jordan
would go so far as to read the legislative history of the Mine Act as
sufficient authority, by itself, for the Commission to rewrite by
interpretation any metal-nonmetal standard so that it is functionally
equivalent to a coal standard. See slip op. at 27-28 (quoting S. Rep.
No. 95-181, at 12-13 (1977), Mine Act Legis. Hist. at 600-01). We
decline to do so. In a 16-month period, approximately ten years after the
passage of the Mine Act, MSHA issued revised ground control regulations for
both coal and metal-nonmetal contexts. Despite the legislative history’s belief
in the “essential[ity] of a common regulatory program for all operators,” MSHA
nevertheless adopted the significantly different ground control standards set
forth above. Compare Safety Standards for Ground Conrol at Metal and
Non-Metal Mines, 51 Fed. Reg. 36,192 (Oct. 8, 1986); Safety Standards for Roof,
Face and Rib Support [in Underground Coal Mines], 53 Fed. Reg. 2343 (Jan. 27,
1988). It is not the role of the Commission, through case law, to attempt to
satisfy legislative history while implying that the Secretary himself has
clearly ignored that history in carrying out his standard-setting function
under section 101 of the Mine Act, 30 U.S.C. § 811. [18]

3.         The
Reasonably Prudent Person Test Applies to the Standards Here.

a.         The
Standards’ Broad Terms Require That the Commission’s Reasonably Prudent Person
Test Be Applied Here.

Turning to the terms of the standards
that the Judge omitted, it is significant that section 57.3360 begins by
stating that “[g]round support shall be used where ground conditions, or mining
experience in similar ground conditions in the mine, indicate
that it is necessary .”     30 C.F.R. § 57.3360 (emphases added). The
terms “experience,” “similar,” “indicate,” and “necessary” are clearly
indicative of a “judgment call” on when and what ground control is needed,
based on all the relevant ground conditions in the mine. The actions required by
section 57.3360 – choice of ground support under the first sentence of the
standard, and the resulting design, installation and maintenance of that
support under the second sentence – thus rest upon the experience of the
operator in the particular mining conditions to indicate appropriate ground
control measures. Because the regulation explicitly directs the mine
operator to base its judgment upon experience in similar ground conditions and
knowledge of the ground conditions, d etermining whether this
standard was violated clearly negates a strict liability application and calls
for application of the Commission’s reasonably prudent person test. See BHP Minerals Int’l
Inc .,
18 FMSHRC 1342, 1345 (Aug. 1996) (recognizing that factors bearing upon the application
of the reasonably prudent person standard include accepted safety standards and
circumstances at the operator’s mine). [19]

Separately,
even when we find the actions of the operator would violate a standard, orders
have nonetheless been vacated when the reasonably prudent operator did not have
fair notice of a requirement through the wording of the standard. We apply the
“reasonably prudent person” test in deciding whether an operator had fair
notice. See, e.g. , Hecla Ltd. , 38 FMSHRC 2117, 2125 (Aug. 2016) (“[W]e
hold that a reasonably prudent person familiar with the mining industry would
not have known that the examination and testing requirement in section 57.3401
might demand a geomechanical or engineering analysis. [Although] we consider
the Secretary’s interpretation to be a permissible one . . . it would not be an
obvious reading of the standard to a person familiar with the mining
industry.”). The reason is simple – the constitutional principles of due process
and fair notice apply prior to a finding of a violation that results in
a civil penalty.

Here,
for example, the operator could not have had “fair notice” of a supposed
obligation to install the type and extent of roof support measures that could
have prevented the magnitude of roof failure that occurred in this situation. The
evidence demonstrates, unequivocally, that the operator’s prior years of mining experience
in similar ground conditions in the same and other mines did not indicate
that it was necessary. To the contrary, the experience indicated that it was not
necessary .
See Consol Buchanan Mining Co. v. Sec’y of Labor , 841 F.3d 642,
650 (4th Cir. 2016) (agreeing with the Commission and other federal circuits
that MSHA regulations permitting a reasonably prudent person standard provides
sufficient notice to satisfy due process and supports potential sanctions). [20]

This case
illustrates the importance of the language of section 57.3360. Here, the
operator had long operated six mines in the Trend, the host rock being
dolomitic limestone, which is very high in strength and stability. There was no
evidence of any prior roof fall even vaguely approaching the calamitous nature
of the fall that occurred in this case. [21]
MSHA inspected the area just hours before the fall and did not see or note any
ground condition giving rise to fear of any roof fall, let alone one of
catastrophic proportions. Although there was post hoc speculation about
breakage along the ribs by one MSHA witness based upon post-accident views, the
evidence does not establish the existence of any ground conditions that could
have foreshadowed the massive fall that occurred.

Under
Commissioner Traynor’s interpretation of section 57.3360, an operator is
strictly liable for any failure of ground in a part of a mine regardless
of where the operator has decided that some measure of ground control is
necessary, on the rationale that such failure means the operator has violated
one or more of the design, installation, or maintenance terms of the second
sentence. Thus, in any metal-nonmetal mine where an operator has recognized the
necessity for ground control in a specific location, our dissenting colleagues
would, in essence, read section 57.3360 identically to how section 75.202(a)
applies in coal mines. Aside from being an erroneous comparison, such an
approach would obviously ignore the many cases requiring fair notice of the
obligations of a standard and a level of clairvoyance far removed from the
terms of the standard.

In
light of the terms of the first sentence of the standard and as the standard
has been interpreted by the Secretary, we do not agree that an operator’s
liability under the second sentence of section 57.3360 can or should be
expanded by such an interpretative approach and default to strict liability. It
would, in essence, render irrelevant the operator’s compliance with the
obligations the first sentence of the standard imposes.

The
other regulation at issue, section 57.3201, is a classically general standard. As
with section 57.3360, the standard’s language is broadly-worded, stating that “[s]caling
shall be performed from a location which will not expose persons to
injury from falling material or other protection from falling
material shall be provided.” 30 C.F.R. § 57.3201 (emphases added).  The key
words here are “location” and the phrase “other protection.”
It
is important that the standard permits alternative means of compliance, i.e.,
the operator may ensure scaling is done from a location that does not expose
miners to hazards or it may provide protection to them.

Additionally,
as with section 75.3360 again, and reading it in pari
materia with
that more general control standard – as we should, because they both appear in
Subpart B of MSHA’s Part 57 regulations addressing ground control – section
57.3201 does not require operators to foresee
and provide protection against a wholly unexpected and unprecedented collapse
of an enormous section of stable, hardened limestone. There are no
details in the standard as to where that “location” ought to be, and there are
no details as to what “other protection” ought to be applied here. Thus, as
with section 57.3360, judgment calls are required to be made by the operator,
based on its experience with ground conditions in the mine, with respect to
both the “location” from which scaling is performed and the type of “protection
. . . provided.”

That
is understandable because section 57.3201 applies to a wide variety of
circumstances. Metal-nonmetal mines involve diverse ground conditions in a
variety of unique mining environments that call for numerous scaling
procedures. MSHA openly acknowledged in its final rule promulgating section
57.3201 that, in metal-nonmetal mines, the “[c]ontrol of ground is made
uniquely difficult because of the variety of conditions encountered and the
changing nature of the forces affecting ground stability at any given
operation.” 51 Fed. Reg.   at 36,192.

This
is a different context than underground coal mine operations, where mine plans
and roof conditions, albeit varying, are often very similar within a given type
of underground mine, and have been subject to more stringent and uniform
regulation from the Mine Act’s inception. Section 57.3201, on the other hand,
must account for the broad variety of materials extracted, the diversity of mining
types and geographic areas represented, and the multiple methods of scaling possible,
depending on the type of mine and environment. [22]
Various conditions in a mine affect scaling and the type of scaling utilized. [23] Each one of
these diverse factors impacts what equates to a safe “location” for performing
scaling. [24]

As
such, the standard, like section 57.3360, requires the application of the
“reasonably prudent person” test. If the operator, informed of the
requirements of those regulations with ascertainable certainty, failed to act with
respect to either as a reasonably prudent person, then a violation occurred. On
the other hand, if the operator acted with reasonable prudence, there can be no
violation.

Our
dissenting colleague, Commissioner Traynor, would affirm the Judge’s findings
of violations here, citing unassailable “plain meanings” to the standards at
issue, and that thus the reasonably prudent person test cannot be used. Slip
op. at 36-44. However, he himself disregards the plain language of section
57.3201, which provides that, as an alternative to scaling from a location
which will not expose persons to injury from falling material, “other
protection against falling material shall be provided.” 30 C.F.R. § 57.3201. Here,
the operator used both – a belt-and-suspenders approach. It positioned the
miner beneath supported roof, where even the inspector testified it would not
have been a violation absent a roof fall, and used a specialized piece
of equipment featuring a long boom to permit the miner to remain under
protected roof while scaling from within a strong, reinforced cab. Clearly,
therefore, the operator used other protection as required. The key point is
that the standard requires the operator to use its experience and judgment in
providing alternative fall protection that a reasonably prudent operator would
provide under the mining conditions.

b.         Application
of the Reasonably Prudent Person Test to the Two Metal-Nonmetal Ground Control
Standards is Amply Supported by Established Commission Precedent.

Applying
the reasonably prudent person test to determine whether the alleged violations
of sections 57.3360 and 57.3201 occurred is supported by no less than four
Commission cases. Nevertheless, the Judge rejected applying the test in favor
of interpreting the standards solely in light of an interpretation of a coal
mine ground control standard. See 40 FMSHRC at 1209. In so doing the
Judge failed to follow Commission precedent in recognizing and according
significance to the difference between regulations under Part 57 and Part 75,
as noted earlier. We
have consistently recognized this distinction when interpreting the
metal-nonmetal standards.

In
Asarco,
Inc .,
14 FMSHRC 941, 942-43, 952 (June 1992), all four metal-nonmetal ground control violations
cited were in connection with a fatality resulting from a roof fall which,
similar to the case at bar, was considered to have been
“unpredictable.” I n
determining whether the Secretary had established violations of both
metal-nonmetal ground control standards at issue, the Commission employed the
reasonably prudent person test. See id . at 947-50 (reversing finding of
violation of 30
C.F.R. § 57.3401), 952 (in reversing finding of violation of 30 C.F.R. §
57.3200, rejecting “[t] he
Secretary[’s] premis[ing] her case on the assumption that the rock that fell
had been loose and could have been detected by proper testing,” because “[a]s
we have concluded, a reasonably prudent person familiar with the mining
industry would not have recognized that” the testing measure employed did not
fulfill the requirements of section 57.3401).

In Asarco , the Secretary, like
the Judge and our dissenting colleagues in this case, relied on the fact of the
accident to establish that the operator per se violated one of the
standards in question:
section 57.3200. 14 FMSHRC at 950-51; see also 30 C.F.R. § 57.3200 (providing
in pertinent part that “[g] round conditions that create a hazard to
persons shall be taken down or supported before other work or travel is
permitted in the affected area.”) (emphasis added) . The Commission
expressly rejected that idea. Instead, we interpreted and applied the standard,
cast in the foregoing broad, judgment-call terms, to conclude that “[t]he fact
that there was a ground fall is not by itself sufficient to sustain a
violation.” Asarco, 14 FMSHRC at 951 (emphasis added).

Rather, the Commission held that the
hazardous ground must be “detectable before ,” not just “after” the
accident, and determined that, through an application of the “reasonably
prudent” miner test, that the operator’s pre-fall detection efforts were
reasonable under the circumstances. Id . at 951-52. We further note
that, in addition to the Commission in Asarco expressly rejecting the
premise upon which the Judge here based his findings of violations, the
similarity in the language used to circumscribe metal-nonmetal operators’
ground control obligations in sections 57.3201, 57.3360 and section
57.3200 at issue in Asarco is much greater than the similarity in
language between section 75.202(a) and sections 57.3201 and 57.3360 that the
Judge found to “essentially identical.” See 40 FMSHRC at 1209.

The Commission in Asarco viewed
its interpretation of the metal-nonmetal ground control standard at issue to be
compelled by its earlier decision in Amax . See Asarco, 14 FMSHRC at 952-53 (citing Amax
Chemical Company , 8 FMSHRC 1146, 1149 (August 1986). In Amax, the Commission had
also explicitly rejected a similar attempt by the Secretary to establish a per
se test for violations of 30 C.F.R. § 57.3-22 (1984), a predecessor
standard to 30 C.F.R. § 57.3401. Particularly emphasizing that the mine at
issue was a “potash mine,” the Commission in Amax specifically noted
that:

. . . [u]nlike the regulatory scheme
that obtains with respect to underground coal mines, approved roof control
plans are not required in underground metal-nonmetal mining operations. Rather,
“[g]round support shall be used if the operating experience of the mine, or any
particular area of the mine, indicates that it is required.” (30 C.F.R. §
57.3020 (1985) (formally numbered as 30 C.F.R. § 57.3-20 (1984)).

8
FMSHRC at 1149 (citing White Pine Copper Div. , 5 FMSHRC 825,
835-37 (May 1983)) .

Amax ’s citation to White Pine
is particularly significant. In White Pine , we concluded that the terms
of 30 C.F.R. § 57.3-20, the predecessor to 30 C.F.R. § 57.3360, required the Commission
to evaluate the current conditions as well as the operating experience of the
mine. Similar to what is now section 57.3360, section 57.3-20 stated that
“[g]round support shall be used if the operating experience of the mine
. . . indicates that it is required.” 30 C.F.R.       § 57.3-20 (1982);
5 FMSHRC at 825 (emphasis added).

We did so after finding that
“experience” includes “practical wisdom” and “broadly encompasses all relevant
facts tending to show the condition of the mine roof in question and whether,
in light of the roof condition, roof support is necessary.” 5 FMSHRC at 836
& n.23. We ultimately held that the requisite determination under the standard

takes into account the operating history
of the mine, (i.e., its past mining practice) geological conditions, scientific
test or monitoring data and any other relevant facts tending to show the
condition of the mine roof in question and whether in light of those factors
roof support is required in order to protect the miners from potential roof
fall.

Id . at 838. In
other words, the Commission interpreted the standard according to the
“reasonably prudent person” test. [25]

Lastly, the Commission’s decision in Canon
Coal Co. , 9 FMSHRC 667 (Apr. 1987), although it involved a former coal mine
ground control standard, is instructive with regard to the circumstances in
which the reasonably prudent person standard applies to ground control
standards like the ones at issue here, particularly section 57.3360. Former 30
C.F. R. § 75.200, the predecessor to what is now 30 C.F. R. § 75.202(a),
provided in pertinent part:

Each operator shall undertake to carry
out on a continuing basis a program to improve the roof control system of each
coal mine and the means and measures to accomplish such system.  The roof and
ribs of all active underground roadways, travelways, and working places shall
be supported or otherwise controlled adequately to protect persons from falls
of the roof or ribs.

30
C.F. R. § 75.200 (1984); 9 FMSHRC at 667 n.1. Thus, a continually developing
ground-control program was required on a mine-specific basis, analogous to the
requirement of the first sentence of section 57.3360. In Canon Coal , a
case in which a roof fall resulted in a fatality, the Commission, faced with an
allegation that a violation of former section 75.200 had occurred,  did not
hesitate to apply the reasonably prudent person test, even in light of the
language in the second sentence of the standard that it emphasized. See 9
FMSHRC at 667-68 & n.1.

Of
course, as we have seen, former section 75.200’s successor standard, section
75.202(a), no longer includes that first sentence. Accordingly, we view the
Judge here as having erred when he treated the Commission majority’s finding in
JWR with regard to the newer, different coal mine ground control
standard as having overruled the Commission’s application of the reasonably
prudent person test in Canon Coal ( see 40 FMSHRC at 1207-09), [26] as that was
a case in which a ground control standard written in much broader terms was at
issue.

Based upon the foregoing established
case law and principles, we hold that the “reasonably prudent person” test
applies to the alleged violations of section 57.3360 and section 57.3201 here. The Commission has
consistently applied this test for nearly four decades.  White Pine and Canon
Coal establish beyond peradventure that section 57.3360 is to be
interpreted and applied as a “reasonably prudent person standard.” Likewise,
and in accord with our decisions interpreting ground control standards in the
metal-nonmetal context, the determinations under section 57.3201 of whether the
scaling “location” was proper or, in the alternative, that “protection” was
“provided,” can only be made under the “reasonably prudent person” test.

C.        Application of the
Reasonably Prudent Person Test

1.         The
Record Compels the Conclusion that Ground Support at the Accident Location was
Properly “Designed, Installed and Maintained” Based on the “Ground Conditions”
Known to Doe Run Prior to the Ground Fall and its Mining Experience in “Similar
Ground Conditions.”

With respect to the section 57.3360
violation, the Secretary urged that the Judge be given the opportunity to apply
the reasonably prudent person test in the first instance after having
originally rejected it (S. Br. at 24-26). We now examine the record to
determine whether there is any need to do so, given the Secretary’s burden of
proof on the question. With regard to that burden, we consider it significant
that, in sua sponte rejecting the test in this case, the Judge concluded
that “[s]uffice it to say that given the plethora of questions raised and
unresolved,    a prudent person test would have made the Secretary’s case as to
the fact of violation much more problematic.” 40 FMSHRC at 1209.

The Secretary argued below and on appeal
that the operator should have known from conditions evident before the accident
that additional ground control measures were necessary. He asserts that the
operator should have drilled test holes to determine if there were voids above
the roof. He also asserts that the operator should have known of shaley
conditions, and that these conditions required the use of resin bolts instead
of the Split Set bolts.

In
his decision, the Judge rejected those arguments in addressing the S&S
issue (which he reached after finding a violation of section 57.3360). Substantial
evidence supports the Judge’s conclusions on those issues. His conclusions, and
the evidence upon which they rest, compel an overall finding of no violation. See
Sims Crane , 41 FMSHRC at 399-400.

As
recognized in the Judge’s analysis deleting the S&S designations (40 FMSHRC
at 1165, 1210-1214), the record contains abundant evidence, including testimony
from the Secretary’s own witnesses, establishing that nothing with respect to
the ground conditions or ground support in the area of the accident put Doe Run
on notice that any form of additional support was needed. [27]

Prior
to January 21, 2015, the mine had never experienced any unplanned ground falls
where Split Set roof bolts failed in ground conditions similar to those in the area
of the accident. Likewise, Doe Run had used Split Set roof bolts for decades to
support brecciated ground. Those bolts were effective without a history of
failure. There is no evidence that the use of resin bolts instead of Split Set
bolts would have made any difference.

Moreover,
the opinion of every witness who worked at the location of the accident prior
to the January 21, 2015 ground fall was that the ground conditions and ground
support in the area, including the conditions in the fall cavity, were typical and
good. This includes the Secretary’s own witness, Inspector Kennedy, who
conducted an inspection of the mine eight hours before the roof fell. [28] Kennedy’s
testimony and the other evidence – all of which the Judge credited in his
S&S analysis – demonstrate that there was nothing that should have put the
operator on notice that the ground support or ground conditions in the area
were insufficient or hazardous.

The Secretary’s evidence fails to
detract from this conclusion. Despite Vadnal’s post-hoc testimony that he
thought “shaley conditions” existed prior to the roof fall, the Judge found
that Kennedy’s testimony contradicted Vadnal’s opinion and diminished its
probative weight.    The Judge also took into account that Vadnal had never
visited the mine prior to the accident, and had not personally observed the
area before the roof fell. Vadnal was merely assuming that the changes
he had observed in the fall cavity area were observable prior to the accident.

Furthermore, Van Dorn conceded that his
reason for concluding that test holes had not been drilled was based on a
single statement by one driller , Sam McCabe. However, McCabe had also
made a conflicting statement saying that he had previously drilled a
test hole.       Tr. 386-89. Van Dorn failed to elicit any other
statements that test holes had not been drilled. 

Moreover, despite the Secretary’s
argument that the operator had created an unsafe work environment by using
bonuses to reward productivity for roof bolters, the Judge found that the
Secretary failed to establish that the bolters had performed their duties in an
unduly speedy manner. 40 FMSHRC at 1213. Finally, the fact that there was no
place on the mine’s work area inspection cards to record when test holes were drilled
raises the inference that the operator could have drilled test holes without
noting them. The Secretary has failed to prove otherwise or bring forth any
other evidence to show that the operator was on notice of insufficient ground
control.

In summary, we conclude that, after
applying the reasonably prudent person standard to the facts the Judge found,
substantial evidence does not support a finding of a violation of section
57.3360. Accordingly, we vacate that citation.

2.         The
Record Establishes That Under the Reasonably Prudent Person Test Doe Run Did
Not Violate 30 C.F.R. § 57.3201.

As shown in the Judge’s factual findings
regarding whether this violation was S&S , the record contains abundant
evidence regarding
Hoodenpyle’s “location.”
T he
scaler’s position 60 feet from the face, under bolted roof, with a reinforced
cab did not “contribute[] to the reasonable likelihood of an injurious roof
fall onto Hoodenpyle.” Id . at 1212. Applying the “reasonably prudent
person” test, we vacate the citation alleging that Hoodenpyle performed the
scaling at an improper location without protection from falling material.

The Judge found that routine practice had
demonstrated that Hoodenpyle’s
position
in the cab was
a safe location. He found that there was no prior indication of any imminent
roof failure,
that there was no prior indication of any unsafe location for this scaling
process, and that there was no prior indication of any other locations the
operator should have picked. Again, we reject the notion ( see slip
op. at 44-45) that any discussion of the record evidence on the safe past
practices that led Hoodenpyle to make the decisions he did thereby converts the
analysis of what a reasonably prudent miner would have “objectively” done into
a “subjective” analysis.

Specifically, Hoodenpyle positioned his
scaler where his ROPS/FOPS operator’s compartment was approximately 60 feet
from the face and directly underneath bolted ground. Both Inspectors Kennedy
and Van Dorn conceded that they had seen mechanical scalers operate in this
position before, and that doing so was not a violation. Indeed, Kennedy, who
had four years of underground experience at the mine prior to joining MSHA,
testified that he had observed mechanical scalers operate multiple times and
that such positioning was normal. Likewise, Van Dorn testified that he had seen
mechanical scalers operate where the cab of the machine was underneath the last
row of bolts, and that he had never issued a citation for such an occurrence
before. Significantly, Van Dorn testified that it is not even a violation for a
mechanical scaler to be underneath 100% unbolted ground. Tr. 391.

Prior to January 21, 2015, the operator
had never experienced an incident where a miner was injured as a result of rock
falling on the operator’s compartment in a mechanical scaler. Based on the
“normal” location of Hoodenpyle’s scaler, as well as the lack of prior similar
incidents and citations, a reasonably prudent person would have believed that
Hoodenpyle’s location for performing scaling would have protected him from the
hazard of falling material.

Moreover, prior to January 21, 2015, the
mine had never experienced any unplanned ground falls where Split Set roof
bolts failed in ground conditions similar to those in the area of the collapse.
Likewise, Split Set roof bolts have been used for decades to support brecciated
ground at Doe Run, and have proven to be effective without a history of
failure. The unanimous opinion of every witness who worked in the fall area
prior to the roof fall was that the ground conditions and ground support were
typical and good. There had never been any instance of injury to any mechanical
scaler operator at the mine due to being crushed by a rock or because rock fell
on the operator’s compartment. In short, based on both the ground conditions as
well as the methods of ground control utilized at the mine, a reasonably prudent
person would not have recognized the hazard of falling material at Hoodenpyle’s
scaling location.

The standard also requires a finding of
no violation here because it offers alternative means of compliance. The
operator did “provide . . . protection” by the use of specialized equipment,
including a reinforced cab and an extended boom to keep the miner far from the
area being scaled, and by bolting the area above the scaler cab – which is not
required. [29]
Interpreting the standard in this way encourages the adoption of specialized
safety equipment and practices. As stated above, there are no details in
section 57.3201 as to what “other protection” ought to be applied here. Thus, another
judgment call by the operator was required here.

Furthermore, as recognized by the Judge
in his S&S analysis, the safety features equipped in the mechanical scaler,
e.g., the stable chassis that did not require stabilizers or outriggers, the
optimized line of sight to the scaling area improving visibility, the telescopic
boom, and the ROPS/FOPS protection, demonstrate that a reasonably prudent
person would have believed that the scaler offered “protection from falling
material” on the day of the accident.

30
C.F.R. § 57.3201. [30]
The fact is that the operator did everything a reasonable operator would have
done both in terms of location and in providing other fall protection, and
nothing would have been cited as a violation but for the unforeseeable roof
fall.

III.

Conclusion

For the reasons stated above, we reverse
and vacate
the Judge’s findings of violations of the ground support standard in 30 C.F.R. §
57.3360
and the scaling standard in 30 C.F.R.       § 57.3201. [31]

/s/
Marco M. Rajkovich, Jr.

Marco
M. Rajkovich, Jr., Chairman

/s/ Michael G.
Young

Michael
G. Young, Commissioner

/s/ William I.
Althen

William
I. Althen, Commissioner

Commissioner
Jordan, dissenting:

Roof
falls have historically been a major cause of injuries and fatalities in our
nation’s mines. This case involves a mining accident during which 175 tons of
rock collapsed onto a mechanical scaler which miner John Hoodenpyle was
operating. [32]
He did not survive.  The Judge concluded that Doe Run violated the two
mandatory safety standards designed to protect miners from such tragedies. [33]
I would affirm this ruling.

The Judge, however, erred by
failing to conduct separate analyses as to whether each violation was
significant and substantial (“S&S”) and in ascertaining the level of
negligence for each violation. He also incorrectly ruled that the operator’s
negligence was low without supporting analysis. Consequently, I would remand
the case on these issues.

I.                

The Judge Correctly Determined that
the Fatal Roof Fall established Per Se Violations of the Cited Standards.

A.        The
Judge Applied the Per Se Analysis the Commission Utilized for Underground Coal
Mines.

In Jim Walter Resources, Inc. ,
37 FMSHRC 493 (Mar. 2015), (“ JWR ”), the Commission considered the
validity of a citation issued in the wake of a roof fall fatality in an underground
coal mine. The cited standard, in pertinent part, required that “[t]he roof,
face and ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to falls of the
roof. . . .” 30 C.F.R. § 75.202. When the inspector arrived on the scene, the
miner was lying fatally injured beneath a large roof fall. In affirming the
citation, the Commission observed: “the only conclusion to be reached is that
the roof was not supported to protect the miner from a roof fall.” 37 FMSHRC at
496.

However, the Judge in JWR had
ruled that the Secretary had failed to prove a violation. According to the
Judge, in order to uphold the citation, the Secretary had to establish the
existence of objective signs that were present prior to the roof fall, which
would have alerted a reasonably prudent person that additional roof support was
necessary. Id. at 494. In reaching this conclusion, the Judge relied on
the Commission decisions in Canon Coal Co ., 9 FMSHRC 667 (Apr. 1987) ( Canon ),
and Harlan Cumberland Coal Co. , 20 FMSHRC 1275 (Dec. 1998), ( Harlan ),
which had applied this “reasonably prudent person” standard to factual
scenarios involving a roof fall ( Canon ) and unsafe roof conditions
without a fall ( Harlan ).

In overturning the Judge, the Commission
observed that “the Mine Act is a strict liability statute and this fatality
resulting from a fall of roof material where persons work or travel
unquestionably demonstrates a violation of section 75.202(a).” 37 FMSHRC at

496. The majority acknowledged the similar factual context between the case
     before it and the decision in Canon , but specifically declined to follow
     that decision. In his concurring opinion, Commissioner Cohen agreed that “[a]
     roof that falls and kills a miner was obviously not supported ‘to protect
     persons from hazards related to falls of the roof’ as required by the safety
     standard.” Id. at 498. He wrote separately to express his view that the
     disposition in JWR effectively overruled the Commission’s decision in Canon .

B.        JWR
is Consistent with Commission and Court of Appeals Precedent as Applied to Both
Coal and Metal/Non-Metal Mines.

The Commission’s decision in JWR
is the most recent in a long line of precedents holding operators liable when
they have failed to achieve the result required by an MSHA safety standard,
regardless of the effort the operator may have made to comply with the
standard, or the operator’s ignorance regarding the existence of the violation.
A few examples of these cases demonstrate that here, to determine liability,
one must simply ask: “was the ground controlled” or “was the miner exposed to
injury from falling material”?

Clintwood Elkhorn Mining Co. Inc., 35 FMSHRC 365
(Feb. 2013), involved a miner who was unable to stop his truck while it rolled
down a haul road, crashed through a berm and flipped onto its passenger side. The
operator was charged with violating the regulation requiring equipment
operators to “have full control of the equipment while it is in motion.” Id .
at 367,

(citing
30 C.F.R. § 77.1607). In
upholding the citation, the Commission stated:

[t]he Secretary must only demonstrate,
by a preponderance of the evidence, that the operator failed to maintain full
control of a piece of equipment while it was in motion. Nothing in the language
of the standard requires the Secretary to prove a causal or contributing factor
for the loss of control . . . . We conclude that the judge made a finding that
is both necessary and sufficient to affirm the citation: the driver lost
control of his truck.

Id . at 370.  

In Musser Engineering Inc., and PBS
Coals, Inc ., 32 FMSHRC 1257, 1271-72 (Oct. 2010), a serious inundation led
to an operator being charged with using an inaccurate mine map. [34]
The operator argued that the map was prepared based on the best information
available to it, and that it was not possible to ascertain the boundaries of
the adjacent abandoned mine. The Commission nevertheless concluded that because
the standard requires that the operator maintain an “accurate and up-to-date
map,” it followed that if the mine map failed to meet these requirements, the
operator violated the standard, regardless of whether the operator did
everything possible to locate an accurate historical map of adjacent mine
workings. Id . at 1272.

In addition, when Spartan Mining was
charged with failing to prevent damage to trailing cables by mobile equipment, [35]
the Commission upheld the citation because: “It is undisputed that the trailing
cable was run over and damaged by the continuous mining machine . . . .” Spartan
Mining Co., Inc. , 30 FMSHRC 699, 706 (Aug. 2008). It explained why
Spartan’s arguments were unavailing:

We are not persuaded by Spartan’s
defenses that no violation should be found because this was the first time the
operator had run over a cable and that Spartan had a policy in place to protect
cables. The Mine Act is a strict liability statute, such that an operator will
be held liable if a violation of a mandatory standard occurs regardless of the
level of fault.

Id at 706 .

In El Paso Rock Quarries, Inc ., 3
FMSHRC 35 (Jan. 1981), the pertinent safety standard required an audible
back-up alarm when the equipment operator had an obstructed view to the rear. The
Judge vacated the citation because the Secretary failed to establish that the
operator knew or should have known that the alarm was inoperative. The
Commission reversed, reasoning that under the Mine Act, an operator may be held
liable for a violation of a safety standard regardless of fault. Id. at
38.

The Courts of Appeals have upheld the
Commission’s strict liability analysis. For instance, in Asarco,
Inc.-Northwestern Mining Dept. v. FMSHRC , 868 F.2d 1195 (10th Cir. 1989), a
miner in an underground metal mine sustained a broken foot when struck by a
falling rock while he was drilling. It was uncontested that he had not complied
with the standard requiring miners to examine and test the back, face, and ribs
of their working places. However, the operator argued that it had taken all
actions necessary to meet the duty of care mandated by the statute and that the
miner had engaged in “unpredictable and idiosyncratic misconduct” and violated
his supervisor’s specific instructions . Id . at 1196. The Court
nevertheless upheld the Commission’s ruling that once it was determined that
the miner employed by Asarco had violated the safety standard, the operator was
subject to a civil penalty, and the fact that supervising employees were not at
fault was not a defense to the citation . Id. at 1197.

In Stillwater Mining Co ., 142 F.3d
1179 (9th Cir. 1998) (“ Stillwater ”), the relevant standard required that
“[m]achinery, equipment, and tools shall not be used beyond the design capacity
intended by the manufacturer, where such use may create a hazard to persons.” 30
C.F.R. § 57.14205. After ore being loaded from a chute into a waiting railcar
jammed in the chute, the gate assembly detached, permitting the ore and muck to
flow from the chute, killing a miner. Agreeing with the Judge below, the Ninth
Circuit held that “[w]hatever load was applied to the bolts . . . had to have
exceeded the design capacity of the bolts; otherwise the chute would not have
failed.” 142 F.3d at 1185. In rejecting the operator’s argument that it had no
reason to believe the design capacity was ever exceeded, the Court emphasized
that “knowledge and culpability . . . are not relevant to the determination of
whether there was a violation. As we have observed, the [Mine Act] imposes ‘a
kind of strict liability on employers to ensure worker safety.’” Id. at
1184 (citations omitted).

Here, in spite of the roof fall, my
colleagues decline to find violations. They find it persuasive that the
operator had long operated mines in the same ore deposit, that there was no
evidence of any prior roof fall, that MSHA had inspected the area shortly
before the fall and did not note any problematic ground conditions, and that
the operator had never experienced an incident where a miner was injured as a
result of rock falling on the operator’s compartment in a mechanical scaler. Slip
op. at 19-25. But the Stillwater court rejected similar defenses. Stillwater
pointed out that the chute had been used for over five years without incident
during which time more than 200,000 tons had flowed through the gate, the chute
assembly was regularly inspected by workers and MSHA, and no changes or adverse
conditions had occurred. 142 F.3d at 1183. The Ninth Circuit discounted such
reasoning, adopting instead a per se approach: the chute failed, and thus the
design capacity of the bolts must have been exceeded.

C.        The
Majority Erroneously Applied A Reasonably Prudent Person Standard to Determine
Liability.

In contrast to the strict liability
standard applied to the coal mine roof fall fatality in JWR , the
majority contends that the distinctive nature of metal mines necessitates a
reasonably prudent person test. Slip op. at 15-16. My colleagues’ conclusion,
however, rests on a faulty analysis. In fact, their approach flies in the face
of the intent expressed by the drafters of the Mine Act that miners in
metal/non-metal mines enjoy safety protections equal to those which had been
set forth in the Coal Act. The Senate Report made clear the desire to rectify
the distinction which existed between the two groups of miners:

[T]he Metal Act does not provide
effective protection for miners from health and safety hazards and enforcement
sanctions under that Act are insufficient to encourage compliance by operators
. . . . The Committee believes that it is essential that there be
a common regulatory program for all operators and equal protection under the
law for all miners . Thus a principal feature of the bill is the
establishment of a single mine safety and health law applicable to the entire
mining industry.

S.
Rep. No. 95-181, at 12-13, (1977), reprinted in Senate Subcomm. on
Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety
and Health Act of 1977 , at 600-01 (1978) (“Leg. Hist.”) (emphasis added).

The Commission cited this legislative
history when it rejected a construction of the seat belt requirement pertaining
to coal miners that would have afforded them less protection than that afforded
to metal/non-metal miners. The case arose when an inspector observed a coal
miner who was not wearing a seat belt. The relevant standard provided that
miners were required to wear seatbelts in certain vehicles where conditions
pose a danger of overturning. The operator argued that liability should not be
based solely on the miner’s failure to wear the seat belt. Relying on its
training regimen, and its enforcement practices, the operator maintained that
the miners were in fact “required to wear” seatbelts, as the language of the
standard mandated. Nally & Hamilton Enterprises , 38 FMSHRC 1644
(July 2016).

Rejecting that argument, the Commission
held that the only sensible reading of the regulation was that it required
miners to use seatbelts. The failure to wear the seatbelt would be sufficient
to impose liability. In reaching that conclusion, the Commission noted the
corresponding regulation applicable to metal/non-metal miners, which explicitly
required that: “Seat belts shall be provided and worn in haulage
trucks.” 30 C.F.R § 57.14131(a). Finding “no logical reason why coal mines
would be subject to a regulation designed to be less protective . . . than the
regulation governing other mines” and that it “would make little sense for MSHA
or its predecessor agency to have intended such a result,” Nally &
Hamilton , 38 FMSHRC at 1650, the Commission concluded that the coal mine
standard should be construed “in a manner that provides equivalent and
harmonized safety protection across different types of mining ventures.” Id.
at 1649.

In this case, however, my colleagues
have construed the relevant roof control standard in a manner that affords
metal/non-metal miners with less protection than that afforded to miners
working in underground coal mines. A mine inspector arriving upon the scene of
a roof fall fatality in an underground coal mine can issue a citation for a
violation of the standard requiring the roof to be supported, without the need
to determine that operator negligence was a contributing factor to the roof
fall. JWR , 37 FMSHRC at 496. An inspector arriving upon the scene of a
roof fall fatality in a metal/non-metal mine would, according to my colleagues,
have to determine whether there were objective signs present prior to the fall
that would have alerted a reasonably prudent operator to install additional
roof support. In other words, the inspector would have to demonstrate the
operator was negligent before the inspector could issue a citation to the
metal/non-metal operator. There is no logical reason for this distinction. It
is contrary to Congressional intent and inconsistent with Commission and Court
precedent. Moreover, as I discuss in greater detail, infra slip op. at
29-31, the language of the comparative regulations do not support such a
result.

Although my colleagues acknowledge that the
Mine Act encompasses strict liability parameters as a general rule, they claim
that here they must apply a “reasonably prudent person” test to ensure that
principles of fair notice to the operator are upheld. I agree that this test is
appropriate when a standard requires no clear-cut outcome and fails to alert an
operator to what it must do to avoid a breach of a safety rule. Thus, I have no
quarrel with the majority’s recitation of the black-letter law principle that
“laws [must] give the person of ordinary intelligence a reasonable opportunity
to know what is prohibited, so that he may act accordingly.” Slip op. at 6-7,
citing Grayned v. City of Rockford , 408 U.S. 104, 108-09 (1972).

However, there is no notice issue in
this case, and thus no need to use the test here. The requirements of the two
standards are clear, and individuals of “common intelligence” have no need to
guess as to their meaning. See Alabama By-Products , 4 FMSHRC at 2129. To
comply, an operator must (1) control the ground in places where persons work or
travel, and (2) ensure that scaling is performed where falling material will
not hurt miners or provide protection from such material. The obligations are
clear.

Nonetheless, focusing only on the first
sentence of section 57.3360, the majority tries to shoehorn it into the class
of “incomplete, vague, indefinite or uncertain” standards that the majority
states are appropriate for use of the reasonably prudent person test. Slip
op. at 13-17. Whether or not the use of that test might be appropriate in cases
where this sentence of the standard is at issue, the test is clearly not appropriate
here. Here, it is undisputed that ground support was necessary. [36]
Moreover, as discussed with greater specificity, infra slip op. at 31-32,
section 57.3201 also states straightforward requirements that do not implicate
fair notice concerns. [37]

D.        Doe
Run Violated the Ground Control Standard.

The Judge here properly concluded that
the standards at issue “are essentially identical to § 75.202(a) in that the
plain meaning of both standards is there should be adequate ground control to
protect miners from falling materials.” 40 FMSHRC 1165, 1209 (July 2018) (ALJ).
The majority criticizes him for relying upon the JWR decision because in
doing so, the Judge disregarded the “substantial distinction between the
regulation of roof control for coal mines and the regulation of ground control
for metal-nonmetal mines.” Slip op. at 12. According to my colleagues, the
language of the standards “is strikingly different” and they consider there to
be “virtually no commonality between the short and direct obligation under
section 75.202 and the broader language of the subject regulations.” Slip op.
at 11. I disagree.

Regarding section 57.3360, although it
requires the metal/non-metal operator to make an initial judgment call as to
whether ground control is needed, once the operator determines that such
support is necessary (as the operator did here), there is no discretion as to
how adequate that support must be. Indeed, as I will illustrate, the
regulations are quite parallel on this point: the support must prevent the roof
from falling on miners. This obligation remains the same, no matter whether the
miner is employed in an underground coal mine or an underground metal/non-metal
mine. A careful analysis of the language of the relevant regulations confirms
the correctness of this assertion.

The relevant standard for coal mines is
located at section 75.202(a) and provides in pertinent part: “ [T]he roof,
face and ribs of areas where persons work or travel shall be supported
or otherwise controlled to protect persons from hazards related to falls
of the roof

.
. . .” 30 C.F.R. § 75.202(a) (emphasis added).

The corresponding standard for
metal/non-metal mines states the following: “When ground support is necessary, the
support system shall be designed, installed and maintained to control
the ground in places where persons work or travel in performing
their assigned tasks.” 30 C.F.R. § 57.3360 (emphasis added).

Both regulations require the operator to
achieve the same result and each regulation provides the operator with
ascertainable certainty as to what that result should be: the operator is
required to support the roof so that it does not fall and injure a miner. A
roof fall fatality unquestionably demonstrates a failure to achieve the
required result. A failure to achieve the regulation’s required result equates
to a violation of either standard. This is the approach that the Commission
took in JWR , and this is the approach that the Judge correctly applied
here. Consequently, I would affirm the finding of a violation. [38]

E.        Doe
Run Violated the Scaling Standard.

As previously noted, section 57.3201
provides that: “[s]caling shall be performed from a location which will not
expose persons to injury from falling material, or other protection from
falling material shall be provided.” 30 C.F.R. § 57.3201.

The requirements of this standard are
clear: (1) scaling work shall be performed outside the zone of danger of any
potential fall of ground or (2) adequate protection shall be provided.  It is
beyond dispute that the miner was scaling from a location where he was exposed
to injury. Similarly, it is tragically incontrovertible that the structures on
Mr. Hoodenpyle’s scaler were not adequate to protect him from falling material
caused by failure of his employer’s ground control system. See, e.g. ,
Sunbelt Rentals, Inc. , 38 FMSHRC 1619, 1627 (July 2016) (holding that an
examination of working places, to comply with the examination standard at
issue, must be “adequate”).

The majority’s effort to characterize
this outcome-based standard as lacking sufficient detail and requiring a
judgment call by an operator, slip op. at 13, 15, 23, are unavailing. The
standard clearly protects against one hazard—injury from falling material. It
contains no vague phrases requiring subjective judgment. An operator can easily
discern its legal requirement: miners who are scaling must not be exposed to
injury from falling material. Hoodenpyle’s death from the roof fall constitutes
the requisite evidence that he had failed to scale from a safe location that
would prevent him from being exposed to falling material. It also demonstrates
that other adequate protection from the roof fall was not provided.

My
colleagues claim that section 57.3201 “does not require operators to foresee
and provide protection against a wholly unexpected and unprecedented collapse
of an enormous section of stable, hardened limestone.” Slip op. at 15. I
believe, however, that the Mine Act and MSHA safety standards are designed to
protect miners from exactly this type of tragic occurrence. Accordingly, I
would affirm the Judge’s finding of liability.

II.              

The Judge should
have Conducted Separate S&S and Negligence Analyses for the Two Violations.

The
Judge deleted the S&S designations associated with both citations, but
failed to conduct separate analyses. In one sentence and without explanation
(other than a brief footnote addressing the scaling standard) the Judge also
reduced the negligence associated with both citations to low. This combined
analysis constituted legal error. The Judge was obligated to separately
evaluate whether each violation was S&S, and the negligence level of each.

Regarding S&S, instead of conducting
separate
S&S analyses, the Judge framed the issue as whether both violations were
S&S, and analyzed the same evidence in the same way for both violations. 40
FMSHRC at 1210-14. But whether each violation was S&S is an issue for which
different evidence is relevant, or for which similar evidence may be of varying
significance. For example, the S&S analysis of the ground support violation
considers the likelihood that inadequate or absent ground support will result
in the hazard of a roof fall, and whether such a roof fall is reasonably likely
to result in reasonably serious injury. In contrast, the S&S analysis of
the scaling violation considers the likelihood that, in the event of falling
material, the position of the mechanical scaler will result in the hazard of
that material falling on miners (such as the miner operating the scaler). The
position of a scaling machine presumably makes a roof fall no more and no less
likely to occur; the standard focuses on whether any material that falls will
fall on miners. The Judge’s S&S analysis, however, considered the
likelihood that both violations (undifferentiated) would result in “a rock fall
that would have injured [Mr.] Hoodenpyle in his scaler cab.” Id . at 1211.
That was error.

The Judge’s negligence determination was
also inadequate, and not only because it was exceedingly terse. As with his
S&S discussion, the Judge combined his negligence analyses, failing to
distinguish between the two violations. When the Secretary alleges violations
of separate standards, it is well-established that Judges must conduct separate
negligence and unwarrantable failure analyses for each violation, even if the
violations are “factually related.” Sierra Rock Products, Inc. , 37
FMSHRC 1, 3-4, 6 (Jan. 2015); Consolidation Coal Co ., 23 FMSHRC 588, 597
(June 2001).

Because
the separate standards impose different obligations, two negligence analyses
are required. Sierra Rock Products , 37 FMSHRC at 6. For example, an
operator may show low negligence on a ground control violation in diligently
working to control the ground, but high negligence on a scaling violation by
permitting miners to scale under unsupported roof or in adverse conditions. Or
an operator may show high negligence by failing to implement basic ground
control practices, while diligently prohibiting miners from scaling in adverse
conditions. The evidence of negligence associated with one violation is not
necessarily probative of, and is certainly not dispositive of, the negligence
associated with another. See id. at 4 (“The relative significance of a
fact or circumstance may change when different violative conduct is at issue”).

III.

Conclusion

I would affirm the Judge’s ruling that
Doe Run violated the two standards, and I would remand the case for a
determination regarding whether the violations were S&S, for a ruling on
the level of negligence for each violation, and for the assessment of penalties.

/s/ Mary Lu
Jordan

Mary
Lu Jordan, Commissioner

Commissioner
Traynor, dissenting:

The Doe Run Company operated the
Fletcher Mine, a lead and zinc mine in Missouri. Unlike coal mine operators,
who are required to obtain MSHA approval of comprehensive mine-specific plans
for controlling the roof in their mines, the Doe Run Company mined without an
MSHA approved roof control plan. MSHA’s regulations gave Doe Run wide
discretion to determine where in the mine ground support systems were
necessary, along with full responsibility to ensure such systems are “designed,
installed, and maintained to control the ground in places where persons work or
travel in performing their assigned tasks.” 30 C.F.R.   § 57.3360. This is an
especially serious responsibility, given “[f]all of ground has historically
been a leading cause of injuries and deaths in metal and nonmetal mines.” Safety
Standards for Ground Control at Metal and Nonmetal Mines , 51 Fed. Reg.
36,192, 36,192 (Oct. 8, 1986). Unfortunately, on January 21, 2015, miner John
Hoodenpyle was operating a mechanical scaler when a massive slab of rock fell
from the roof of the Fletcher mine and crushed him to death.

Following the accident, MSHA issued two
citations that were adjudicated in the decision on review. The Judge below
appropriately concluded that because the Mine Act imposes strict liability, the
tragic failure of Doe Run’s ground control systems to “control the ground”
where Hoodenpyle was working established a violation of section 57.3360. The
Judge also determined the accident that killed Hoodenpyle established a
violation of the regulation requiring that “[s]caling shall be performed from a
location which will not expose persons to injury from falling material.” 30
C.F.R. § 57.3201.

The Judge’s decision finding Doe Run
violated both standards flows from our foundational precedents firmly
establishing that Mine Act regulations are promulgated and enforced in a strict
liability framework. The majority attempts an end-run around this authority by
misapplying the “reasonably prudent person” test in order to introduce operator
fault and foreknowledge as additional elements of proof necessary to establish
the violations. 1 But in our strict liability framework,
operator fault, foreknowledge and other inquiries into negligence are
irrelevant to the question of whether a violation occurred and are only to be
considered when determining what penalty, if any, shall be assessed for the
violation. It is from this fundamental error – and particularly the harm it
will do to enforcement of ground control obligations in metal and nonmetal
mines – that I very emphatically dissent.

However, I find error in other parts of
the Judge’s analysis. For instance, the Judge inappropriately comingled his
analyses of whether the discrete violations were “significant and substantial”
(“S&S”). Furthermore, the Judge erred in summarily concluding that the
operator demonstrated a low level of negligence without providing a supporting
rationale. While I would affirm that the standards at issue were violated,
these errors would require remand.

I.

Mine
Act Safety Standards Only Function Properly and As Intended If Operators Are
Held Strictly Liable Without Regard for Fault or Foreknowledge.

It is well established that mine
operators are universally liable for all violations that occur at their mine
without regard to fault or foreknowledge of the violative conditions. 30 U.S.C.  
§ 820(a); see also Wake Stone Corp ., 36 FMSHRC 825, 827 (Apr.
2014) (“Imposing strict liability under the Mine Act is not optional — it is
mandatory.”); see, e.g. , Ames Constr., Inc. ,  33 FMSHRC 1607, 1611 (July
2011), aff’d , 676 F.3d 1109 (D.C. Cir. 2012) (holding that the Mine Act
imposes strict liability for violations which occur at a mine without regard to
an operator’s fault); Asarco, Inc., NW Mining Dept . v. FMSHRC ,
868 F.2d 1195, 1197 (10th Cir. 1989) (“the plain meaning of . . . section
110(a) is that when a violation of a mandatory safety standard occurs in a mine,
the operator is automatically assessed a civil penalty”); Allied Products Co. v. FMSHRC , 666 F.2d 890, 893-94
(5th Cir. 1982) (“it is a common regulatory practice to impose a kind of strict
liability on [a mining] employer as an incentive for him to take all
practicable measures to ensure workers’ safety, the idea being that the
employer is in a better position to make specific rules and to enforce them
than the agency is”); Sewell Coal Co. v. FMSHRC , 686 F.2d 1066, 1071
(4th Cir. 1982) (affirming operator liability under the Mine Act without regard
to fault).

As part of a strict
liability framework, every Mine Act regulation “imposes liability upon an
operator regardless of its knowledge of unsafe conditions. What the operator
knew or should have known is relevant, if at all, in determining the
appropriate penalty, not in determining whether a violation of the regulation
occurred.” Peabody Coal Co. , 1 FMSHRC 1494, 1495 (Oct. 1979) ; see also Nally & Hamilton Enter. Inc. , 33 FMSHRC 1759, 1764 (Aug. 2011); Rock of Ages Corp.
v. Sec’y of Labor , 170 F.3d 148, 156 (2d Cir. 1999) (holding that Mine Act
regulation “imposes strict liability on mine operators . . . regardless of
whether the operator has knowledge” of hazard); Stillwater Mining Co. v.
FMSHRC , 142 F.3d 1179, 1184 (9th Cir. 1998) (“[k]nowledge and culpability,
however, are not relevant to the determination of whether there was a
violation. As we have observed, the FMSHA imposes ‘a kind of strict liability
on employers to ensure worker safety’”) (citation omitted); Allied
Products , 666 F.2d at 894 (“If the act or its regulations are violated, it
is irrelevant whose act precipitated the violation or whether or not the
violation was found to affect safety; the operator is liable.”). Following
Congress, courts have reinforced that we have consistently recognized “the
inherent danger of mines, and held any failure to comply with a regulation
under the Act would result in a citation to the operator . . . . [T]here are no
exceptions for fault, only harsher penalties for willful violations.” Miller
Mining Co. v. FMSHRC , 713 F.2d 487, 491 (9th Cir. 1983) ( citing Allied
Products , 666 F.2d at 893–894).

II.

Exempting
the Standards at Issue From Strict Liability Enforcement Dangerously Undermines
Ground Control Regulation of Metal and Non-Metal Mines.

The majority’s refusal to
apply the regulations at issue in a manner consistent with strict liability
dangerously undermines regulation of ground control in metal and non-metal
mines. In order to fully appreciate this danger, it is necessary to understand
how the regulatory framework requiring ground control in metal and non-metal
mines is significantly different than the plan-based framework that governs
roof control in coal mines.

U nderground coal
mine operators are required to mine in accordance with a roof control plan
approved by the local MSHA district manager – “suitable” to the prevailing
geological conditions and mining systems – and abide by generally applicable
roof support standards in Part 75. See 30 U.S.C. § 862(a). These
comprehensive and specially-tailored coal mine roof control plans mandate
minimum specifications for ground support systems, e.g., bolt length, bolting
patterns. “[A] violation of the requirements in the plan constitutes a
violation of the Act.” UMWA Int’l Union v. Dole , 870 F.2d 662, 667 &
n.7 (D.C. Cir. 1989) (“[t]he requirements of these plans are enforceable as if
they were mandatory standards”) (quoting S. Rep. No. 95-181, at 25 (1977) reprinted
in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977 , at 613 (1978)); see
e.g., Consolidation Coal Co ., 39 FMSHRC 1737 (Sept. 2017).

In contrast, “the Mine Act imposes no
similar obligation [to mine in accordance with a mandatory mine-specific roof
control plan] upon underground metal and non-metal mines.”  See Hecla
Ltd. , 38 FMSHRC 2117, 2125 (Aug. 2016). There are no comprehensive plan
requirements or regulations governing roof control in metal and non-metal
mines. Instead, metal and nonmetal operators have
been accorded considerable discretion to design, install, and maintain support
systems provided that the operator performs its obligation to control
the ground . 2 See 51 Fed. Reg. at 36,195
(“[Section 57.3360] does not specify the type of ground support system to be
used, only that it control the ground .”); id. at 36,192 (“The
standards are performance-oriented , but are sufficiently specific to
provide the mine operator with the necessary guidance.”) (emphases added).

Metal and non-metal mine operators are
not subject to the detailed mine-specific ground control plans the Secretary
requires for underground coal mines. Instead, Mine Act regulations give them
wide discretion and ultimate responsibility as to where and how they control
the ground. 3 The majority’s failure to interpret the
standards at issue consistent with the strict liability framework in which they
were promulgated relieves metal and non-metal operators of this responsibility,
and an incentive, for ensuring their miners are only working in areas where the
operator can control the ground. Judge Richard Posner described this incentive
in an oft-cited strict liability case:

By making the actor strictly liable – by
denying him in other words an excuse based on his inability to avoid accidents
by being more careful – we give him an incentive, missing in a negligence
regime, to experiment with methods of preventing accidents that involve not
greater exertions of care, assumed to be futile, but instead relocating, changing,
or reducing (perhaps to the vanishing point) the activity giving rise to the
accident.

Indiana
Harbor Belt R.R. Co. v. Am. Cyanamid Co. , 916 F.2d 1174, 1177 (7th Cir. 1990).

III.

The Plain
Requirements of the Standards at Issue Were Violated.

The two safety standards at issue are
plain. As discussed more fully below, the operator violated both. Whether the
operator – or the objective reasonably prudent miner – knew or could have known
of the ground control failure is totally irrelevant to our inquiry into whether
the regulations have been violated. 4 In this case, these questions are only
appropriate in the context of the negligence inquiry involved in penalty
assessment and review of the S&S designations.

A.        Section
57.3360 Plainly Requires That When Ground Support is Necessary Mine Operators
Must Provide Sufficient Support to Continuously Control the Ground in Places
Where Miners Work and Travel.

The safety standard at 30 C.F.R. §
57.3360 states that “[g]round support shall be used where ground conditions, or
mining experience in similar ground conditions in the mine, indicate that it is
necessary. When ground support is necessary, the support system shall be
designed, installed, and maintained to control the ground in places where
persons work or travel in performing their assigned tasks . . . .”

The language of the standard is clear. “Where
the language of a regulatory provision is clear, the terms of that provision
must be enforced as they are written unless the regulator clearly intended the words
to have a different meaning or unless such meaning would lead to absurd
results.” Jim Walter Res., Inc ., 28 FMSHRC 983, 987 (Dec. 2006) (citing Dyer
v. United States , 832 F.2d 1062, 1066 (9th Cir. 1987).  

The first sentence of the standard
establishes a predicate – ground support shall be used where conditions
or experience indicate that it is necessary. 5 The design of the
standard accounts for the variety of mining environments at issue in
underground metal and nonmetal mines. For instance, not all underground metal
and nonmetal mines provide roof bolt ground support.    Tr. 391; e.g ., White
Pine Copper Div., Copper Range Co ., 5 FMSHRC 825, 832-33 (May 1983).   It
is undisputed that in this case ground support was necessary. Counsel for Doe
Run conceded that experience had indicated that roof bolting – a form of ground
support – was necessary.  Oral Arg. Tr. 13 (“Doe Run made the decision that
ground support is necessary.”). 6 And roof bolt ground support was
installed in a portion of the fall area.

The second sentence of the standard
plainly states that its requirements are conditioned on whether the operator
has determined that ground support is necessary. 7 “ When
ground support is necessary , the support system shall be designed,
installed, and maintained to control the ground in places where persons work or
travel.” 30 C.F.R. § 57.3360 (emphasis added). The requirements of the second
sentence are thus triggered when the operator uses ground support. Each
substantial term in the standard plainly states what an operator must do to
comply in those circumstances where ground support is necessary.

“[T]he Commission has consistently
construed [the term] ‘maintain’ in relation to other standards to require a
continuing functioning condition.” Nally & Hamilton , 33 FMSHRC at 1763.
In Nally & Hamilton , the Commission recited this history:

In Lopke Quarries , the
Commission, in affirming the judge’s finding of a violation, examined Webster’s
definition of “maintained” and determined that based on its plain meaning,  “the
inclusion of the word ‘maintain’ in the standard . . . incorporates an ongoing
responsibility on the part of the operator

. . . .” 23 FMSHRC at 707-08. See
also Alan Lee Good , 23 FMSHRC at 996-98 (affirming the judge’s finding
that, because the regulation required that braking systems on equipment be
“maintained in a functional condition,” and the operator conceded that the
parking brake was inoperative, the evidence established that there was a
violation of the cited standard); Peabody Coal Co ., 1 FMSHRC 1494, 1495
(Oct. 1979) (finding that a violation of section 77.404(a) was established
where the operator admitted the presence of a hydraulic leak and, therefore,
admitted that the forklift was not maintained in “safe operating condition”); Jim
Walter Res ., 19 FMSHRC at 1765-66 (affirming a judge’s finding that a
“monitor was not being ‘maintained’ in ‘proper operating condition,”’ as
required by 30 C.F.R. § 75.342 where the operator intentionally routed air
believed to contain methane on a path that would prevent methane monitor
detection).

Id. Thus, clearly
the requirement that ground support be “ maintained to control the ground
in places where people work or travel” requires that the ground is controlled
in a continuing functioning condition. 8

The standard also requires that the
support be “designed” and “installed” to control the ground. The term “design”
is defined in Webster’s Dictionary as “used as a basis for anticipating
practical problems and solving them at an engineering stage.” Webster’s
Third International Dictionary 612 (1986). The term “install” is defined as
“to set-up for use or service.” Id . at 1171. In this instance, the
common dictionary definition of the terms is consistent with surrounding
language and purpose of the standard. See Akzo Nobel Salt, Inc .,  21
FMSRHC 846, 852 (Aug. 1999) (“It is a cardinal principle of . . . regulatory
interpretation that words that are not technical in nature ‘are to be given
their usual, natural, plain, ordinary, and commonly understood meaning.”). Thus,
the ordinary and uncomplicated meaning of these terms cumulatively require that
when ground support has been determined to be necessary, a mine operator must
provide sufficient support to continuously control the ground in places where
miners work and travel. 9 Therefore, if the ground falls in an
area where a miner works or travels, the operator is strictly liable. This is
true regardless of whether the operator could have foreseen the fall, whether
the operator’s or miners’ conduct contributed to the fall, or whether the fall
actually placed any person in danger.

This plain meaning interpretation is
consistent with a similar safety standard applicable to underground coal mines,
30 C.F.R. § 75.202(a) (“[t]he roof, face and ribs of areas where persons work
or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of the roof, face or ribs and coal or rock bursts.”). In
Jim Walter Resources, Inc. , 37 FMSHRC 493, 495 (Mar. 2015), the
Commission held that “under the plain language of [section 75.202(a)] and the
strict liability approach governing Mine Act violations, the Secretary . . .
need only show (1) that the roof fall occurred in an area where persons work or
travel and (2) that the roof was not supported to protect persons from hazards
related to falls.” 10 The majority attempts to distinguish JWR
on the ground that it involved an underground coal mine and the metal/non-metal
mine operators must have the “flexibility to deal with the conditions as they
see fit.” Slip op. at 12. But this wide flexibility only works to improve
safety when it is exercised within a regulatory framework that imposes strict
liability on operators to create the “incentive, missing in a negligence
regime, to experiment with methods of preventing accidents that involve not
greater exertions of care, assumed to be futile, but instead relocating,
changing, or reducing (perhaps to the vanishing point) the activity giving rise
to the accident.” Am. Cyanamid Co. , 916 F.2d at 1177.

The majority misconstrues the
Commission’s use of the “reasonably prudent person” test in Asarco, Inc .,
14 FMSHRC 941, 948 (June 1992). Slip op at 17-18. Asarco involved a roof
fall and two alleged violations of 30 C.F.R. § 57.3401 (“designated persons
shall examine and, where applicable, test ground conditions in areas where work
is to be performed . . . .”). The Commission applied the “reasonably prudent
person” doctrine to consider whether the operator had notice that the
standard at section 57.3401 prohibited exclusive reliance on its preferred
method of testing the roof. The test was appropriately used to confirm the
regulated community did not have constitutional notice of the requirements of
the standard, not to interpret into those requirements a defense against
violations committed without fault or foreknowledge.

Asarco argued that it reasonably
believed that using a jumbo drill to vibrate the roof totest for loose ground
satisfied the safety standard’s requirements. The Commission agreed, concluding
that the Secretary did not demonstrate that a “reasonably prudent person
familiar with the mining industry would have recognized that a jumbo drill
could not be used effectively to test for loose ground.” Asarco , 14
FMSHRC at 945-46, 949-50. Section 57.3401 neither provided a methodology for
testing nor had the Secretary provided any supplemental guidance in his Program
Policy Manual. Id . at 947. Furthermore, witnesses for the operator and
the Secretary testified that using a jumbo drill to vibrate the roof to test
for loose ground was a common practice in the industry. Id . at 948-49. Accordingly,
the Commission concluded that the Secretary’s regulation failed to provide
Asarco with adequate notice. Id . at 949-50. 11

Section 57.3360 on the other hand is
sufficiently specific to notify the operator of its obligation: to control the
ground in places where people work and travel. Accordingly, the issue in the
case at hand is fully distinguishable from the Commission’s consideration of
what the ambiguous term “test” in section 57.3401 requires. 12

In addition, my colleagues inaccurately
claim that Amax Chemical Co ., 8 FMSHRC 1146 (Aug. 1986), supports their
erroneous application of the reasonably prudent person test. Slip op. at 18. Notably,
Amax neither contains the phrase “reasonably prudent person” nor does it
concern an issue of regulatory interpretation. Rather, Amax concerns
whether substantial evidence supports the Judge’s finding of a violation of 30
C.F.R. § 57.3-22 (1984) (a now defunct safety standard which required loose
ground to be taken down or adequately supported). The Commission concluded that
substantial evidence supported the Judge’s determination. However, the
Commission wrote further to clarify that while ground that makes a “drummy”
sound when struck with a hammer suggests that the ground is loose, it does not
establish that the ground is loose per se . 8 FMSHRC at 1148-49. My
colleagues in the majority extrapolate this evidentiary ruling beyond all
recognition.

The majority’s reliance on White Pine
Copper Div ., 5 FMSHRC at 825, is similarly misplaced. Slip op. at 18-19. In
fact, White Pine illustrates how far my colleagues have strayed from
Commission precedent. The case involved a prior roof control standard, 30
C.F.R. § 57.3-20 (1984), that required “[g]round support shall be used if the
operating experience of the mine, or any particular area of the mine, indicates
that it is required.” 5 FMSHRC at 825.

My colleagues ignore that “[t]he only
question before the Commission [in White Pine ] [was] whether the
particular conditions of the cited area required roof support, not which type
of roof support.” Id . at 835, n.19. The Commission held that once the
operator determines that ground support is necessary in an area, the safety
standard requires that the operator use “sufficient” support to “protect[ ]
miners against roof falls.” Id . at 837. In the case at hand, because
counsel for Doe Run conceded that ground support was necessary and Doe Run had
actually come to the same conclusion by installing ground support measures in
the accident area, the only question before us is whether that support was
sufficient. 13 My colleagues twist themselves in
analytical circles in an attempt to relieve the operator of the imposition of
any legal obligation of sufficiency.

Here, the Judge found that the
occurrence of the roof fall – which crushed a miner to death – violated Doe
Run’s obligation to control the ground in a place where miners work or travel. 40
FMSHRC 1165, 1209-1210 (July 2018) (ALJ). I affirm this conclusion. 14
Whether or not Doe Run demonstrated negligence in using a 5 x 5 split-set
bolting pattern at the site of the RC3PO northeast fall area, is the type of
inquiry that is confined to the section 110(i) penalty criteria. 15

B.        Section
57.3201 Plainly Requires that Scaling be Performed From a Location That Does not
Expose Miners to Injury From Falling Material.

The safety standard at section 57.3201
provides that “[s]caling shall be performed from a location which will not
expose persons to injury from falling material, or other protection from
falling material shall be provided.” 30 C.F.R. § 57.3201. The requirements of
this standard are clear – scaling work shall be performed outside the zone of
danger of any potential fall of ground or adequate protection shall be
provided. 16 “[A] ‘safe’ location is one which will
not expose persons to injury from falling material.” 51 Fed. Reg. at 36,194.

It is beyond dispute that Hoodenpyle was
scaling from a location where he was exposed to injury. Counsel for the
Secretary has alleged that Doe Run violated the standard based on the location
of the scaler. S. Post-Hr’g Br. at 21. Doe Run vigorously contested this
allegation before the Judge below, but mounted no supported defense that it
complied with the standard by providing “other protection from falling
material.” In any event, it is tragically incontrovertible that the structures
on Mr. Hoodenpyle’s scaler did not protect him from falling material caused by
failure of his employer’s ground control system. 17 Thus,
the fact of his injury alone, without more, is sufficient to establish a
violation of the regulation.

Despite appearing to find that the
language of section 57.3201 is “plain” and therefore no deference was owed the
Secretary’s interpretation, the majority also holds that purported ambiguities
in the word “location” and the phrase “other protection” require use of the “reasonably
prudent person” test. Slip op. at 15-16, 21-22. If the words of the regulation
are plain, there is no cause for application of the reasonably prudent person
test of whether the objectively reasonable operator had notice of the
requirements of the regulation. If the standard contains ambiguities, of course
we must consider whether the Secretary’s interpretation is reasonable. 18
My colleagues have instead chosen to interpret the terms themselves so as to
open the gates to a “reasonably prudent person” Trojan horse, concealing within
it operator defenses – lack of fault, foreseeability and foreknowledge – that
do not belong in a strict liability analysis.

My colleagues in the majority note that
routine practice had demonstrated that Hoodenpyle’s position in the cab was a
safe location. Slip op. at 22. But there is absolutely no basis in the text of
the regulation or our strict liability law to speculate about Hoodenpyle’s
subjective knowledge of the likelihood of a roof fall or the reasonableness of
his choices or conduct. 19 Indeed, “the reasonably prudent person
test contemplates an objective – not subjective – analysis of all the
surrounding circumstances, factors, and considerations bearing on the inquiry
in issue.” Canon Coal Co ., 9 FMSHRC at 668 ; see also Lehigh
Anthracite Coal , 40 FMSHRC 273, 282 (Apr. 2018); Stillwater , 142
F.3d at 1182 (the “appropriate test is not whether the operator had explicit
prior notice of a specific prohibition or requirement, but 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.”).

Inquiry into whether an individual
operator or miner was aware of potentially violative conditions is nothing more
than an examination of whether that person was negligent. Yet the majority uses
just such an inquiry to reach the (counterfactual) conclusion that the
violation must be vacated because the scaler’s location did not contribute to
the “reasonable likelihood of an injurious roof fall onto Hoodenpyle.” Slip op.
at 22. This distorted application of an altered “reasonably prudent person
test,” unsupported by any coherent discussion of our strict liability
precedents, is just a backdoor inquiry into the operator’s subjective knowledge
of the violations, their foreseeability and the operator’s degree of fault. It
is being used not to faithfully interpret and apply the text of the regulation,
but rather to add “lack of knowledge, foreseeability or fault” (negligence) as
a new supra-textual defense available to any operator cited under what was
promulgated as a strict liability regulation.

Once a violation is established, the
Judge considers the operator’s negligence only in setting a penalty for the
violation. 20 30 U.S.C. § 820(i). “[A] finding on
operator negligence is only necessary when the Commission assesses a penalty.” Sunbelt
Rentals, Inc ., 42 FMSHRC 16, 40 (Jan. 2020) (Chair Rajkovich, concurring(
citing 30 U.S.C. § 820(i))).

If this decision were remanded to the
Judge for a reassessment of negligence, he may reasonably conclude again that
Doe Run demonstrated a low level of negligence or even that Doe Run was not
negligent in permitting the miner to scale at this location. To that end, MSHA
inspector Jeremy Kennedy conducted a routine inspection of this area the day
before the accident and reported that the roof appeared to be free of adverse
conditions and the bolts flush to the back. Similarly, Bob Ridings, a geologist
employed by Doe Run, traveled in the area hours before the ground fall and
testified that the bolts “looked good.” Tr. 689. Tom Welch, a loader operator,
traveled in under the last row of bolts and testified that “everything looked
fine.”    Tr. 519.

On the other hand, there is also
evidence that suggests Doe Run was negligent in permitting the miner to scale
from the location where the accident occurred. He was seated inside the cab of
the scaler, approximately 60 feet from the face. Hoodenpyle’s scaler was
located at the outermost limits of Doe Run’s discretionary ground control
policy. S. Ex. 7 at 1 (“[s]caling will begin 60’ back from the face”). He was
seated under the last row of bolts. Approximately 50 feet of unbolted ground
was between that row of bolts and the face. S. Ex. 12 at 4-5. The diagram at
Secretary’s Exhibit 12, at 5, depicts the mechanical scaler outstretched, using
the full 40 foot range of the boom to scale. S. Ex. 8 at 6. Most of the roof
fall at issue occurred in the unbolted area (75% of the ground fall) and the
fall extended back, ripping the last row of bolts out as well (25% of the
ground fall). 21

Doe Run was not drilling test holes to
determine the conditions of the ground, in order to determine whether it was
appropriate to bolt in a tighter pattern or to switch to stronger resin bolts. Tr.

294. In fact, Vernon Roark the roof bolter testified that he had not been
     trained on how to use the equipment required to drill a test hole and
     accordingly, did not drill one to test the ground. 22 Tr.
     465-66, 473-74. 23 Furthermore, Doe Run management
     provided no mechanism for miners to communicate the result of a test hole to
     management. Tr. 59, 184-85. There was even testimony that other roof falls had
     occurred, but MSHA was not able to locate those areas upon investigation. Tr.
     292-93. In the absence of adequate examination practices, a reasonable fact
     finder could determine that Doe Run was negligent in permitting the miner to
     scale in this location because reasonable care had not been taken to determine
     if this location was safe to continue the use of routine practices. 

I decline to fully marshal the above
referenced evidence to robustly examine or come to a conclusion on the question
of whether Doe Run was negligent in violating the requirements of section
57.3201. That is the Judge’s job. I draw upon the contrast in the record
evidence as an illustrative tool to demonstrate how the evidence at issue is
relevant to determining Doe Run’s culpability. Because the determination of
negligence is the responsibility of the Judge, I take no position as what the
outcome should be if the issues of negligence associated with each violation
were remanded.

IV.

Conclusion

In conclusion, I would affirm the
Judge’s ruling that Doe Run violated the two strict liability standards and
would remand the case for a determination of whether they were S&S and for
a ruling on the level of negligence exhibited in connection with each
violation. However, because the standards impose different obligations – one
imposing an obligation to control the ground where necessary and the other
requiring that scaling be performed from a safe location

–
the Judge would need to conduct a separate S&S analysis and a separate
negligence analysis for each. Sierra Rock Products, Inc. , 37 FMSHRC 1, 6
(Jan. 2015); Black Beauty Coal Co ., 38 FMSHRC 1307, 1315 n.11 (June
2016).

/s/ Arthur R.
Traynor, III

Arthur
R. Traynor, III, Commissioner

[1] Section 57.3360
provides in pertinent part:

Ground support shall be used where
ground conditions, or mining experience in similar ground conditions in the
mine, indicate that it is necessary. When ground support is necessary, the
support system shall be designed, installed, and maintained to control the
ground in places where persons work or travel in performing their assigned
tasks.

30 C.F.R. § 57.3360.

[2] Section 57.3201
states that “[s]caling shall be performed from a location which will not expose
persons to injury from falling material, or other protection from falling
material shall be provided.” 30 C.F.R. § 57.3201.

[3] The S&S
terminology is taken from section 104(d)(l) of the Act, which distinguishes as
more serious any violation that “could significantly and substantially contribute
to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. §
814(d)(l).

[4] The Judge also
vacated a third citation, Citation No. 8680902, which had alleged that the
operator had failed to conduct required workplace examination training, in
violation of 30 C.F.R. § 48.7(a). 40 FMSHRC 1165, 1214-16 (July 2018) (ALJ). The
Judge vacated the citation on the basis that the Secretary had unduly
prejudiced Doe Run by modifying the citation in an untimely manner. Id . The
Secretary does not seek review of this ruling.

[5] This decision
uses the terms “roof” and “back” interchangeably to refer to the roof of the
mine. Similarly, the decision uses the terms “roof fall” and “ground fall” interchangeably
to refer to roof falls.

[6] The Fletcher
Mine is designed in a modified room and pillar format, meaning that pillars are
left to support the roof as working headings are advanced. Mine drifts, or
tunnels, are typically 28 to 32 feet wide while the pillar widths average
between 30 and 32 feet. The roof height generally ranges from 16 to 120 feet. Fletcher’s
typical mine cycle consists of (1) face drilling of holes; (2) hole charging
and blasting; (3) post-blast muck and rock loading and haulage; (4) scaling
(both mechanical and high boom hand scaling); and (5) roof bolting.

[7] Blasting often
creates the need for scaling the unstable or loose material from the roof and
sidewalls, which may be done by hand or by the use of specialized equipment such
as a mechanical scaler. Tr. 429-30. This machine was a Getman S330 Mechanical
Scaler with a roof scaling coverage range of 9.8 feet to 29.5 feet and a rib
scaling coverage ranging up to 29.5 feet. Sec. Ex. 8, at 6 (MSHA’s accident
investigation report). The single extension boom allowed for an advancement of
over 13.1 feet from a single setup, allowing the operator to stay in a reinforced
cab while extending the reach. The scaler with the boom was approximately 40
feet long and 8 feet high. Id . The scaler’s operator cab was located at
the extreme rear of the machine and was designed to keep the operator at the
farthest point away from the scaling work, as the material is removed. Tr.
434-35.

[8] Inspector Kennedy
worked at Doe Run for eight and a half years prior to going to work for MSHA in
2009. He had previously worked underground at Doe Run’s Brushy Creek,
Sweetwater, and Fletcher mines, the last of which where he spent four years as
a surveyor.    As an MSHA inspector, he had inspected Fletcher at least eight
times.      

[9] The policy was
revised in 1998 in response to the fatal roof fall at a separate Doe Run mine
(referred to in the transcripts as the “Casteel Mine”). Tr. 611, 633-34. There
were no section 57.3360 violations found in Fletcher Mine’s ten-year citation
history. Tr. 528-29;      see generally DR Ex. O. There was one citation
for a violation of section 57.3201, six years prior, in 2009. Tr. 529; DR Ex. O
at 29.

[10] See, e.g. ,
Peabody Coal Co. , 1 FMSHRC 1494, 1495 (Oct. 1979) (finding that operator could
not escape liability due to its lack of prior knowledge of the violative
condition of the equipment where it met neither of two duties imposed upon it
by equipment standard that did not require such knowledge); El Paso Rock
Quarries, Inc. , 3 FMSHRC 35, 38-39 (Jan. 1981) (finding operator strictly
liable, even absent knowledge of equipment defect, because “unless the standard
itself so requires, an operator’s negligence has no bearing on the issue of
whether a violation occurred”); Clintwood Elkhorn Mining Co. , 35 FMSHRC 635,
370 (Feb. 2013) (upholding strict liability under the standard because the Secretary
met his burden of establish ing
a violation of section 77.1607(b) merely by
demonstrating that the equipment operator failed to maintain full control of e quipment
while it was in motion, and “[n] othing in the
language of the standard requires the Secretary to prove a causal or
contributing factor for the loss of control ”); Wake Stone Corp. ,
36 FMSHRC 825, 826 (Apr. 2014) (imposing strict liability because a defect in
equipment established a violation of the terms of the standard).

[11] See, e.g. ,
Freeman United Coal Mining Co. v. FMSHRC , 108 F.3d 358, 362 (D.C. Cir. 1997) (“ [R]egulations will be found to satisfy due process so long
as they are sufficiently specific that a reasonably prudent person, familiar
with the conditions the regulations are meant to address and the objectives the
regulations are meant to achieve, would have fair warning of what the
regulations require.”); Walker Stone Co. v. Sec’y of Labor , 156 F.3d
1076, 1083 (10th Cir. 1998) (quoting Freeman United , 108 F.3d at 362); Stillwater
Mining Co. v. FMSHRC ,
142 F.3d 1179, 1182 (9th Cir. 1998). Our dissenting
colleague, Commissioner Traynor (slip op. at 40-41 n.12) is thus mistaken in
relying on a 2011 decision from the D.C. District Court to argue that under the
Mine Act the reasonably prudent person test is only relevant with respect to
the imposition of penalties, and not the initial question of whether a
violation occurred. See Black Beauty Coal Co. v.
FMSHRC , 703 F.3d 553, 558 (D.C. Cir. 2012) (“An accumulation exists if
a reasonably prudent person, familiar with the mining industry and the
protective purpose of the standard, would have recognized the hazardous
condition that the regulation seeks to prevent.”) (citation omitted).

[12] While the
wording of his opinion suggests that the Judge might have intended his per se analysis
to be confined to fatalities caused by roof falls, his failure to consider the
text of the regulations does not support consideration for such a limitation.

[13] Immediately
after invoking Mine Act strict liability as a basis for determining whether the
violations had been established, the Judge veered into a condemnatory
denunciation of the history of mining, excoriating “mine operators” and
“lawyers, constabulary, and biased judicial donees.” 40 FMSHRC at 1206-07. This
diatribe, which the Judge included in a context where he himself acknowledged
its irrelevance, is completely out of line and detracts from the analysis. Commission
Judges should bear in mind that they are officers of the Commission. While
Judges are entitled to hold and express their own opinions privately, and while
we do not suggest that Judges should refrain from appropriate citations to
history in rendering their decisions, irrelevant dicta must be avoided. Ironically,
the Judge, albeit by footnote, absolves the operator from acting
“reprehensibly.” Id . at 1206 n.61.

[14]
See,
e.g. ,
Allied Prod. Co. v. FMSHRC , 666 F.2d 890, 893 (5th Cir. 1982) (after upholding
that equipment conditions constituted violation, rejecting contention that
evidence of significant employee misconduct should be taken into account in
deciding whether to hold operator liable for the violation); Miller Mining
Co. , 713 F.2d at 491 (describing strict liability as holding an operator
liable for “ any failure to comply with a
regulation under the Act [that] result[s] in a citation”) (emphasis added);
Northwestern Mining Dep’t v. FMSHRC , 868 F.2d 1195, 1197 (D.C. Cir.
1989) (upholding Commission’s finding that “ once
it was determined that . . . a miner
employed by Asarco[] violated a mandatory safety standard in Asarco’s .
. . [m]ine, Asarco, under the Mine Act, was subject to a civil penalty . . .
and that the fact that Asarco’s supervising employees were not at fault was not
a defense to the citation”) (emphases added); Ames Constr., Inc. v. FMSHRC ,
676 F.3d 1109, 1110-12 (D.C. Cir. 2012) (rejecting production-operator’s claim
that strict liability for truck driver’s violation of the standard should not
attach to it); Musser Eng’g, Inc. , 32 FMSHRC 1257, 1272 (Oct.
2010) (finding that an operator is strictly liable “ if a
violation of a mandatory safety standard occurs”) (emphasis added); Nally
& Hamilton Enter. , 38 FMSHRC 1644, 1651 (July 2016) (“[W]hen a miner
fails to wear a seat belt when operating a vehicle covered by [30 C.F.R. §]
77.1710(i), he violates th[at] standard. Then , as required by [the Mine
Act], the operator is liable for the violation.”) (emphasis added).

[15]
In JWR ,
the Secretary urged an interpretation of section 75.202(a) under which a
fatality due to a roof fall in an underground coal mine would result in a
finding of a per se violation of that standard. 37 FMSHRC at 494-95. The
Commission majority instead, acknowledging strict liability under the Mine Act,
chose to simply apply the specific terms of section 75.202(a) to the facts. It
ultimately held that, as to “the issue of whether the operator failed to
support the roof ‘to protect persons from hazards related to falls,’” a miner
was found

. . . lying fatally injured beneath a
large roof fall. Accordingly, the only conclusion to be reached is that the
roof was not supported to protect the miner from a roof fall. . . . [T]he Mine
Act is a strict liability statute, and this fatality resulting from a fall of
roof material where persons work or travel unquestionably demonstrates a
violation of section 75.202(a). The roof fall . . . amply demonstrates that the
roof was not supported in a manner to protect him from hazards related to
falls.

Id . at 496. The
miner had entered the area despite a large roof fall having occurred nearby. Id .
at 494.

[16] This distinction flows from the language and
structure of the Act itself. Coal mining roof and rib control requirements are
addressed directly in section 302 of the statute, 30 U.S.C. § 862, along with
the rest of Title III that imposed interim safety standards on the coal mining
industry. See 30 U.S.C. §
861, enacted Dec. 30, 1969, Pub. L. No. 91-173, § 301,
83 Stat. 765; amended Nov. 9, 1977, Pub. L. No. 95-164, § 203, 91 Stat 1317. By
contrast, metal-nonmetal ground control is not explicitly in the Act.

[17] See
Stillwater , 142 F.3d at 1183-84 (finding load of ore that operator
permitted to flow in chute exceeded design capacity of bolts on chute gate
shown by failure of gate, and thus operator violated general
safety regulation prohibiting use of equipment beyond its design capacity ); Clintwood
Elkhorn , 35 FMSHRC at 370 (finding that truck leaving the road violated
standard requiring full control of equipment while it is in motion); Nally &
Hamilton ,
36 FMSHRC at 1648-51 (after interpreting key term “required” in context of
standard imposing obligation that seat belt be worn, finding violation solely based
on equipment operator’s failure to wear seat belt) .

[18] We further note
that, in contrast, in Nally & Hamilton , the case cited by our
colleague in support of her argument for a harmonious interpretation of similar
MSHA safety standards, the standard at issue, 30 C.F.R. § 77.1710(i), was
promulgated prior to the passage of the Mine Act.

[19] Contrary to
Commissioner Traynor’s arguments (slip op. at 42 n.15, 44), our reliance on the
terms of the standard in our analysis, such as the term “experience,” does not inject
“negligence” concepts into this case. It is the key terms of the standard that
dictate whether the reasonably prudent person test applies, and we cannot
ignore such terms.

[20]
Commissioner
Traynor, again, misses the point by his comment that our finding here is “directly
contradicted by counsel for Doe Run.” Slip op. at 37, n.6. We agree with
counsel for Doe Run that “ground support is necessary.” It is a matter of where
that ground support is used as necessary.

[21]
There was limited testimony that some unidentified person may have heard of a
roof fall of undescribed dimensions in some unidentified part of the mine;
however, we find it implausible that there could have been a previous fall, in
this mine, approaching this magnitude with no witness able to testify to it in
any detail.

[22] These include,
but are not limited to, ground hand-scaling, rock pile scaling,     high-boom
hand-scaling, mechanical scaling, front-end loader scaling, bolter scaling, and
jumbo drill scaling.

[23] These include,
but are not limited to, host rock stability, mineralization, layered back,
thick shale seams, brecciated ground, sandstone, existence or non-existence of
ground support, water penetration, active faults, and mud seams.

[24]
Again, our
dissenting colleagues would read the standard in question as requiring much
less in the way of evidence, and affirm the Judge’s analysis that the facts
here establish a per se violation of section 57.3201. They would find
the scaler’s location under the roof fall entirely dispositive on the question
of whether the standard was violated, regardless of how objectively reasonable
that location might be at the time given the operator’s ground control
experience in the mine. Slip op. at 30-31, 43-47. Similarly, they would ignore
that the operator provided “other protection” in the form of a reinforced cab
thereby clearly complying with the obligations of the standard. As discussed infra ,
Commission precedent in interpreting predecessor and similar metal-nonmetal
ground control standards does not support such an interpretation, neither with
respect to section 57.3360 nor with regard to section 57.3201.

[25] Unlike
Commissioner Traynor, we put no stock in the fact that, in some of the older
cases, the Commission did not specifically state that it was applying the
reasonably prudent person test. See slip op. at 41. The Commission had
already started interpreting broad standards using such an approach before it
first stated the specific “reasonably prudent person” terminology in Alabama
By-Products , 4 FMSHRC 2128, 2129 (Dec. 1982). See, e.g. , Lone
Star Indus., Inc. , 3 FMSHRC 2526, 2530 (Nov. 1981) (“[s]ection 56.9-41 is
the kind of standard made simple and brief in order to be broadly adaptable to
myriad circumstances. The relevant variables affecting safe position are
numerous, may differ from plant to plant, and may change from day to day in any
particular operation.”).

[26] The Judge appears to
have been strongly influenced by the claim in the concurrence in JWR
that the majority opinion effectively overruled Canon Coal . See 40
FMSHRC at 1207 (citing 37 FMSHRC at 498). We need only observe that
Commissioners Nakamura and Althen, who comprised the majority in JWR , certainly knew
how to overrule Canon
Coal
if they wished to do so, and chose not to overrule that case. See 37
FMSHRC at 496 n.7.

[27] Notwithstanding
Commissioner Traynor’s argument to the contrary (slip op. at 37 n.7), our
discussion of the record evidence on the “judgment calls” and decisions made by
Doe Run based on its experience and past practice does not convert our analysis
of what a reasonably prudent miner would have “objectively” done into a
“subjective” analysis.

[28] Kennedy
testified that he did not notice anything unusual on the face and did not
observe any “change” that would have indicated the existence of adverse ground
conditions.

Tr.
104-05. The pillars appeared to be sized adequately with nothing out of the
ordinary. Likewise, the widths of the drifts and crosscuts were normal. In
fact, Kennedy wrote “no loose noted” and “ok” in his General Field Notes with
respect to the RC3PO stope. Tr. 101;

DR
Ex. AA, at 3. Kennedy had not noticed any abnormal noises such as popping or
cracking. He testified that he had observed nothing abnormal that would cause
him concern about hazardous ground conditions.

[29] We reject the
Secretary’s contention that the operator forfeited this argument by failing to
raise it before the Judge below. S. Br. at 8 n.3 (citing 30 U.S.C. §
823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(d); Black Beauty Coal Co ., 37
FMSHRC 687, 694–95 (Apr. 2015). Doe Run explicitly raised this argument
before the Judge on pages 59-60 of its post-hearing brief. DR Post-Hg. Br. at
59-60.

[30] Moreover, the
Secretary failed to produce any definitive evidence that the canopy or cab of
the scaler was not approved by MSHA or used without the proper tags.

[31] Consequently, the
Judge’s negligence findings are vacated as well, and we need not reach the
Secretary’s arguments regarding S&S and negligence.

[32] Scaling
involves knocking loose rock off of the walls and roof of a mine. Tr. 429-30.

[33] Doe Run was
charged with a violation of the following standards:

30 C.F.R. § 57.3360:

Ground support shall be used where
ground conditions, or mining experience in similar ground conditions in the
mine, indicate that it is necessary. When ground support is necessary, the
support system shall be designed, installed, and maintained to control the
ground in places where persons work or travel in performing their assigned
tasks.

30 C.F.R. § 57.3201: “Scaling shall be
performed from a location which will not expose persons to injury from falling
material, or other protection from falling material shall be provided.

Both violations were designated as
significant and substantial.

[34] The standard at
issue, 30 C.F.R. § 75.1200, states:

The
operator of a coal mine shall have  in a fireproof
repository located in an area on the surface of the mine chosen by the mine
operator to minimize the danger of destruction by fire or other hazard, an
accurate and up-to-date map of such mine drawn on scale. 

[35] The operator
was charged with violating 30 C.F.R. § 75.606, which requires that
“[t] railing cables shall be adequately protected
to prevent damage by mobile equipment.”

[36] Counsel for Doe
Run conceded that experience had indicated that roof bolting was necessary. Oral
Arg. Tr. At 13 (“Doe Run made the decision that ground support is necessary.”).
And roof bolt ground support was installed in a portion of the fall area.

[37] As Commissioner
Traynor correctly points out, slip op. at 40-41, the majority’s reliance
on  Amax Chemical Co ., 8 FMSHRC 1146 (Aug. 1986) and on Asarco,
Inc. , 14 FMSHRC 941 (June 1992) is misplaced.

[38] Even were I to
adopt the majority’s reasonably prudent person analysis, I agree with
Commissioner Traynor, slip op. at 42, n.14, that one would be hard-pressed to
conclude that the record compels the conclusion that no violation occurred, the
standard that must be met in order to reverse the Judge. Am.
Mine Servs., Inc. , 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not
necessary when record supports no other conclusion).

1 The “reasonably
prudent person” doctrine is traditionally used by the Commission and originated
as a tool to determine whether a safety standard provides the objectively
reasonable mine operator notice of the prohibition or requirement of a safety
standard to the extent required by due process. Ideal Cement Co. , 12
FMSRHC 2409, 2416 (Nov. 1990) (“whether a reasonably prudent person familiar
with the mining injury and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the standard.”). The test
is rooted in the constitutional right to due process in connection with the
deprivation of property. See The American Coal Co ., 38 FMSHRC 2062, 2112
(Aug. 2016) (Comm’r Althen, dissenting (explaining “[i]t is elementary that due
process requires that a party must receive fair notice before being deprived of
property.”)).

2 While these
regulatory schemes are significantly different owing to historic differences
between the original the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. § 801 et seq. (1976) (amended 1977) (“ Coal Act”) and the
Federal Metal and Nonmetallic Mine Safety Act of 1966, 30 U.S.C. § 721 et seq.
(1976) (repealed 1977)(“Metal Act”), operators of all underground mines
share a common obligation to control the ground in places where miners work or
travel. 30 C.F.R. §§ 57.3360, 75.202(a); see Nally & Hamilton
Enter. , 38 FMSHRC 1644, 1650 (Jul. 2016) (“The Senate Report on the Mine
Act notes that the Coal Act was more comprehensive in scope and reach than the
Metal Act. ”).

3 Doe Run’s
unilaterally developed internal ground control policy provided loose guidance
to its miners rather than specifying, for example, when a tighter bolting
pattern or longer bolts would be required. DR Ex. F at 2 (“In general a 5 x 5
pattern is sufficient for intersections, however some ground conditions may
dictate a tighter spacing . . . [H]istoric ground control difficulties may
dictate the use of longer fixtures. Spot bolting or pattern bolting may be
necessary in areas where ground control problems or geologic structures
dictate.”).

4 Here, there is
no cause for the reasonably prudent person test. Due process is unquestionably
satisfied as all five Commissioners apparently agree that the meaning of
standards is plain. See slip op. at 16. And when the language in a
regulation “is clear, it follows that the standard provides fair notice . . . .”
See Bluestone Coal Corp ., 19 FMSHRC 1025, 1031 (June 1997).

5 The majority
completely ignores the standard’s conditional language and the plain
requirements imposed in the second sentence in their purported plain meaning
interpretation. Accordingly, the majority’s interpretation is erroneous. See
TRW Inc. v. Andrews , 534 U.S. 19, 31 (2001) (holding that a cardinal
principle of interpretation is to give effect, if possible, to every clause or
word).

6 The majority
finding that “experience indicated that [ground support] . . . was not
necessary” is thus directly contradicted by counsel for Doe Run. Slip op. at 14
(emphasis in original).

7 The majority
asserts that the question of whether ground support is necessary should be
resolved by the application of a subjective version of the reasonably prudent
person test, substituting its own interpretation of the regulation for that of
the Secretary, who urges consideration of multiple factors relating to ground
conditions and mining experience referenced in three of our prior decisions. S.
Br. at 24-25. See also 51 Fed. Reg. at 36,195 (“Under the final rule,
ground conditions and mining experience are the criteria for determining if
support is required.”). Unlike the majority, I would accord due deference to
the Secretary’s interpretation were the necessity of ground control at issue in
this case. But it is not. Here, we already have the answer to this inquiry, as
all parties agree that ground support was necessary and some ground support was
deployed in the area where the accident occurred.

8 As Commissioner
Jordan explains in her dissent, the requirement to “control” the ground in
places where persons work or travel is plain and presents no cause for
application of a reasonably prudent miner test. Slip op. at 28-30. It prompts
but one question: was the ground controlled? See, e.g. , Clintwood
Elkhorn Mining Co , 35 FMSHRC 365, 370 (Feb. 2013) (“‘It is obvious that the
driver here lost control of his truck . . . . Mine operators are strictly
liable for violations such as this’ . . . . This is where the analysis should
have ended.”); see also Premier Elkhorn Coal Co ., 38 FMSHRC 1587,
1591-92 (July 2016) (same).

9 Because the
contested provisions of the standard are plain and clear, there is no due
process notice issue to address. The plain meaning of common ordinary usage
language in the standard’s language provides adequate notice to mine operators.
See Dynamic Energy, Inc ., 32 FMSHRC 1168, 1172 (Sept. 2010); Jim
Walter , 28 FMSHRC at 988 n.6.

10 In JWR ,
the Commission acknowledged that its holding was inconsistent with the
interpretation articulated in Canon Coal . JWR , 37 FMSHRC at 496
n.7 (“we decline to follow the Canon decision.”); cf. Canon
Coal Co ., 9 FMSHRC 667, 668 (Apr. 1987) (“the adequacy of particular roof
support or other control must be measured against the test of whether the
support or control is what a reasonably prudent person . . . would have
provided in order to meet the protection intended by the standard.”). Accordingly,
Commissioners Althen’s and Nakamura’s expressions of their hesitation to ignore
Canon Coal in JWR are simply dicta . The only principled
manner in which to read JWR is that it established a new interpretation
of section 75.202(a) – overturning Canon Coal . See JWR , 37
FMSHRC at 498 (Comm’r Cohen, concurring).

11 Asarco
also concerned two alleged violations of 30 C.F.R. § 57.3200 which provides
that “[g]round conditions that create a hazard to persons shall be taken down
or supported before other work or travel is permitted in the affected
area.” (emphasis added). My colleagues in the majority contend that they
interpreted the standard under a reasonably prudent person test. Slip op. at 17.
This is incorrect. Instead, the Commission relied on the plain ordinary meaning
of the term “before” to hold that the Secretary must prove that there was “a
reasonably detectable hazard before the ground fall.” Asarco , 14
FMSHRC at 951 (emphasis in original). The Commission concluded that the
evidence the Secretary introduced of the roof conditions after the
occurrence of the roof fall was not substantial evidence to support the Judge’s
finding of a violation because the specific language of the safety standard
requires evidence of a problem before the fall. In fact, despite my
colleague’s mischaracterization, slip op. at 17-18, the only time the
Commission referenced the “reasonably prudent person” test in discussing
section 57.3200 was in reference to the prior finding that the mine operator
did not have notice that a jumbo drill did not comply with the testing
requirements of section 57.3401.

12 The majority
reads the opinion in Asarco to imply the question of whether an operator
had notice sufficient to support imposition of a civil penalty consistent with
constitutional due process is controlling on the preliminary interpretive
question of whether the operator violated the regulation. This is error, as
explained in a D.C. District Court opinion recounting the historic development
and application of the due process notice requirement in the regulatory
context:

While it is clear that the notice
requirement is not limited to the criminal realm, it also has not been applied
to limit agencies’ interpretations in all contexts. Nearly all of the cases
applying the “fair notice” doctrine concern an agency’s imposition of a penalty
against a private party and, moreover, formulate the doctrine in terms of penalties.

Arkansas
Dep’t of Human Servs. v. Sebelius , 818 F. Supp. 2d 107, 120–21 (D.D.C.
2011). Even if in Asarco we had explicitly departed from traditional
application of the due process inquiry, that holding would have been superseded
by numerous cases explicitly recognizing interpretation of a regulation to
determine whether it was violated is not contingent on the due process analysis
used to determine whether a civil penalty may be imposed. See, e.g. , id. ;
Berwind Natural Res. Corp ., 21 FMSHRC 1284, 1328 (Dec. 1999) (“[A]n
agency’s interpretation may be permissible but nevertheless may fail to provide
the notice required to support imposition of a civil penalty.”); Consol
Buchanan Mining Co., LLC v. Sec’y of Labor , 841 F.3d 642, 651 (4th Cir.
2016), as amended (Nov. 23, 2016) (“[Operator] 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.”).

13 Like Doe Run’s
counsel, my colleagues acknowledge Doe Run used ground support measures at the
location where the accident occurred, emphasizing “[t]hat is precisely what Doe
Run did here – apply ground support in the location where it was
necessary.” Slip op. at 9 (emphasis in original). But the ground support Doe
Run applied failed to control the ground where it was applied.

14 Even if Mine
Act regulations were not created in a strict liability framework – a notion
contrary to the plain text of the statute and decades of precedent – and I
joined the majority in applying a reasonably prudent person test to inject
foreknowledge and negligence into the analysis, I would not be able to conclude
that the record compels the conclusion that no violation occurred, the standard
that must be met in order to reverse the Judge. See
Am. Mine Servs., Inc. , 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not
necessary only when record supports no other conclusion). For example, the
Secretary argued that test holes should have been drilled in the fall area. Vernon
Roark, the roof bolter, testified that he had not been trained how to drill
test holes and did not drill test holes. Tr. 465-66, 473-74. A second roof
bolter, Sam McCabe, told Van Dorn that he did not drill test holes either. Tr.

386. The Secretary also presented evidence regarding loose rock in
     the area and prior roof falls. Tr. 292-93; S. Br. at 26. The Judge made no
     finding regarding the roof bolters’ failure to drill test holes.

15 My colleagues
have injected the concept of negligence into the analysis of whether an
operator was strictly liable for a violation of a safety standard,
demonstrating
a fundamental
misunderstanding of how the Mine Act operates . It is well established that
mine operators are to abide by mandatory safety standards, and if the standard
is violated the operator is liable, regardless of foreknowledge, negligence or
fault. 30 U.S.C. § 820(a); Peabody Coal Co .,       1 FMSHRC at 1495; Nally &
Hamilton , 38 FMSHRC at 1651. Only when assessing a civil penalty for the
violation does the Judge consider if the operator was negligent in violating
the standard. See Nally & Hamilton , 38 FMSHRC at 1651 (citing
Asarco , 868 F.2d at 1997) (“Of course, the operator’s fault or lack of
fault goes to the issue of negligence and, thus, is considered in assessing a
civil penalty.”); see also KenAmerican Res., Inc. , 42 FMSHRC 1, 8
n.16 (Jan. 2020) (consideration as to whether the operator was negligent in
violating the standard is “appropriately confined to the penalty assessment for
the violation.”). Notably,
the Commission has found a violation of a safety standard even when the
operator was not negligent. Nally & Hamilton , 38 FMSHRC at 1652
(affirming the Judge’s “no negligence” finding); see also 30 C.F.R. §
100.3(d) (the Secretary can issue a citation alleging “no negligence”). In the
case at hand, the Judge found that Doe Run demonstrated a low level of
negligence. 40 FMSHRC at 1212.

16 The majority
finds the Commission’s decision in Asarco controlling. Slip op. at 17. However,
in Asarco , the Commission determined that the standard was directed at
ground conditions as they appeared before a roof fall based on the inclusion of
the term “before” in the safety standard. See supra slip op. at
40, n.12. Thus, the language of the standard compels a focus on the
operator’s foreknowledge. Section 57.3201’s directives are distinct and do not
contain the term “before” or other similar language requiring an inquiry into
foreknowledge or any other aspect of a negligence inquiry. Accordingly, the
attempted analogy falls flat.

17 I agree with
Commissioner Jordan that the word “protection,” which is not at issue in this
case, does not introduce ambiguities requiring an exception to the principles
of strict liability. Slip op. at 32. See Spartan Mining Co. , 30 FMSHRC
699, 706 (Aug. 2008) (“We are not persuaded by Spartan’s defenses that no
violation should be found because this was the first time the operator had run
over a cable and that Spartan had a policy in place to protect cables. The Mine
Act is a strict liability statute, such that an operator will be held liable if
a violation of a mandatory standard occurs regardless of the level of fault.”).
The majority declines to apply a strict liability interpretation of the
standard, claiming it “requires the operator to use its experience and judgment
in providing alternative fall protection that a reasonably prudent operator
would provide under the mining conditions,” slip op. at 17, even though the
plain language of the standard reads, “protection from falling material shall
be provided” and the facts indicate Hoodenpyle was not protected from falling
material.

18 The majority
opinion does not address our duty to defer to the Secretary’s reasonable
interpretation of regulatory language. Do they find the terms of these
regulatory standards plain? If not, and they conclude the terms are ambiguous,
where is their analyses of whether the Secretary’s interpretations are “plainly
erroneous or inconsistent with the regulation?” Kisor v. Wilkie , 139 S.
Ct. 2400, 2411 (2019). Where is any discussion of our duty of deference?

19 My colleagues
flatly claim without elaboration that “any discussion of the record evidence on
the safe past practices that led Hoodenpyle to make the decisions he did” is an
objective and not subjective analysis. Slip op. at 22. This is patently
incorrect. Establishing what is “reasonable” by reference to an actual
individual miner or operator’s prior behavior – e.g., where they had located
the scaler in the past without incident – rather than what the hypothetical
“reasonably prudent miner” would have done is unquestionably applying a
subjective rather than objective test. This distortion of the test begs the
question of reasonableness, by improperly using Hoodenpyle and/or Doe Run’s
prior conduct as a benchmark of ”reasonable” conduct, rather than using the
hypothetical objectively reasonable person. This subjective analysis is
inappropriate, even in the context of the appropriate application of the
reasonably prudent person test on the question of whether due process permits a
penalty (let alone the preliminary question of whether a strict liability
interpretation of the regulatory terms establishes a violation in the first
place).

20 The D.C.
Circuit recognized that the Mine Act separates analysis of liability from
negligence in Western Fuels-Utah, Inc. v. FMSHRC , 870 F.2d 711, 713
(D.C. Cir. 1989). Section 104 of the Act imposes liability on an operator for
violations of mandatory standards, id. at 716 (“the statute necessarily
implies that a violation can exist even without an act on the operator’s
part”), and a civil penalty is imposed based on whether or not the operator was
negligent, id . (drawing a distinction between “negligent violations and
non-negligent violations”). My colleagues cite Western Fuels-Utah in an
effort to justify their improperly injecting a reasonably prudent person theory
of liability in lieu of strict liability, slip op. at 9, when in fact the D.C.
Circuit’s discussion of operator liability and negligence entirely undercuts my
colleagues’ approach. The majority confuses the concept of strict
liability, a mandatory aspect of our interpretation of the standards at issue
here, with the separate concept of vicarious liability for the acts of
agents or supervisors, which is the primary issue addressed in Western
Fuels-Utah and most of the cases listed in the majority opinion’s footnote

14. Slip op. at 10.

My colleagues claim numerous controlling
cases mandating strict liability interpretation on the question of whether Mine
Act standards are violated that are cited throughout this dissent are not
“relevant to the initial task of interpreting a Mine Act standard to determine
an operator’s obligations under it and whether a violation even
occurred.” Slip op. at 10 (emphasis in original). But strict liability is the
only proper way to determine whether the terms of the standards alone – ruling
out questions of negligence, fault and foreseeability – establish a violation.

21 As a corrective
action, MSHA recommended new roof control procedures which would limit the
amount of unbolted ground between the last row of bolts and the face, to ensure
a safe location for scaling operations. 40 FMSRHC at 1175 (citing Tr. 203); Tr.

310. This new policy also requires the uses of the stronger resin bolts within
     30 feet of the face in areas of disrupted bedding in breccia zones. S. Ex. 8 at
311. The Secretary believes that “limit[ing] distances for unbolted areas will
     ensure a safe location for scaling operations.” Id . at 7. Under the new
     procedures, in areas of disrupted bedding, a scaler could not be seated under
     the last row of bolts, with approximately 50 feet of unbolted ground in front
     of him, as Hoodenpyle was in this case.

22 A test hole
demonstrates what type of rock the ground is made up of. Tr. 48-49. The jumbo
drill creates a percussion that has different sounds depending upon the
condition of the rock. Tr. 49. The test hole is drilled deeper than a hole for
a bolt, which means the miners get a better sense of the strata above. Tr. 121.
A test hole could be three or four feet deeper than a hole drilled for a roof
bolt. Tr. 121.

23 My colleagues
ignore that Roark testified that he did not know how to drill a test hole, when
they find that the record is devoid of evidence that test holes had not been
drilled. Slip op. at 21.