Secretary of Labor v. Manalapan Mining Company, Inc.

Plain-English summary

MSHA issued section 104(d) orders for combustible coal accumulations along two conveyor belts at Manalapan Mining's underground mine. The judge found the violations but removed their unwarrantable-failure designations, relying heavily on the wet and muddy conditions and the resulting level of danger. The Commission vacated those determinations because danger is only one factor and is not a threshold requirement for unwarrantable failure. It directed the judge to address the extent and duration of each condition, abatement efforts, notice from prior violations, obviousness, and the operator's knowledge, then weigh all relevant factors together. Commissioner Michael G. Young agreed as to Belt No. 3 but would have affirmed the judge's ruling for Belt No. 2.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: The unwarrantable-failure rulings for Belt Nos. 3 and 2 were vacated and remanded for reconsideration.
• Key point: A low or disputed degree of danger does not by itself defeat unwarrantable failure, and prior violations need not be S&S or from the identical mine area to provide notice.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

February 1, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MANALAPAN MINING COMPANY, INC.

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Docket No. KENT 2008-737

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman, and Nakamura, Commissioner

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). In part, Administrative Law Judge Jerold
Feldman concluded that two section 104(d)

orders issued by the U.S. Department of Labor’s
Mine Safety and Health Administration (“MSHA”) to Manalapan Mining Company, Inc.
(“Manalapan”) for combustible coal accumulations in violation of 30 C.F.R. § 75.400

were not
the result of the operator’s unwarrantable failure to comply with mandatory health or safety
standards. 32 FMSHRC 690, 701, 703, 705 (June 2010) (ALJ). The Commission granted the
Secretary of Labor’s petition for discretionary review challenging the judge’s decision. For the
reasons that follow, we vacate the judge’s decision and remand for further consideration
consistent with our decision.

I.

Factual and Procedural Background

From 2000 until 2008,

Manalapan operated an underground coal mine, Mine No. 10, in
Pathfork, Kentucky. 32 FMSHRC at 692; Tr. 16. The mine had one production day shift that
began at 6:00 a.m. and ended at 4:00 p.m. 32 FMSHRC at 691-92. There was no second shift.
Id. at 692. The third shift was a maintenance shift that operated from 9:00 p.m. until 5:00 a.m.
Id. The coal seam height underground varied from approximately 5½ to 3½ feet. Id. Coal was
extracted from the working face by a continuous miner. Tr. 54-55. The material extracted from
the working face consisted of approximately 70% rock and clay and 30% coal. 32 FMSHRC at

692. After extraction, the coal along with the extraneous material was loaded onto a series of
     conveyor belts designed to transport it to the surface. Id.

In October 2007, at the time of the inspection at issue in this case, the mine had four belt
lines going from the face to the entry that were approximately 2,300 feet in total length. Id. The
conditions in the mine were constantly wet because of percolation of water through old works,
the mine floor and ribs, and dust control at the face. Id.; Tr. 226-30. Despite the presence of
water pumps, water was never completely removed, and the mine floor remained muddy at all
times. 32 FMSHRC at 692. The extracted material was transferred from the No. 4 belt at the
face to the No. 3 and No. 2 belts and ultimately to the No. 1 belt nearest the surface. Id.

On October 7, 2007, at approximately 9:00 a.m., MSHA Inspector Daniel Lewis
commenced an inspection of the mine. Id.; Tr. 50. Joe Miniard, the mine superintendent,
accompanied Lewis on the inspection. Tr. 50-51. Initially, Lewis reviewed the preshift and
onshift examination books. 32 FMSHRC at 692. Lewis observed notations under the column
entitled “Hazardous,” entered from August 30 through October 2, 2007, that, as a general matter,
reflected wet and muddy conditions on a daily basis along the four belts. Id.; M. Ex. 7. The
recordation began on that date because an MSHA inspector had previously advised Miniard that
he could no longer record the conditions as “none observed.” Tr. 343. The books noted
“working on” and “shoveling” as actions taken to correct the conditions. 32 FMSHRC at 692.

The mine had been producing coal for approximately two to three hours prior to the
beginning of the inspection. Id. at 693. Inspector Lewis began his inspection by traveling with
Miniard to the working face. Id. After completing his inspection of the face, Lewis traveled
outby the conveyor belt entry to inspect the belts. Id. Lewis inspected the belt lines, beginning
with Belt No. 4, then traveling outby to Belt No. 3, Belt No. 2, and Belt No. 1. Tr. 100, 331-39.
The inspection occurred prior to Miniard’s onshift examination. 32 FMSHRC at 693. At that
time, four men were assigned to work on the beltline, concentrating on the conveyor head drives
where water and mud had accumulated. Id.

Regarding the conditions at issue on appeal, on Belt No. 3, which was 400 feet long, id. at
699, Lewis noted one to nine-inch deep accumulations, and that at least 20 of the rollers were in
the accumulations. Id.; Gov’t. Ex. 2. He noted that the belt was beginning to become more
damp than Belt No. 4. Id. at 700. In his testimony, Lewis explained that the belt became wetter
as it progressed outby towards the head drive. Id.; Tr. 87-88. Lewis initially denied that the area
along Belt No. 3 was wet and slippery, but ultimately conceded that there was enough water to
make it difficult to walk. 32 FMSHRC at 700. Lewis testified that the accumulations were
“combustible enough to cite.” Id. Around Belt No. 3, there was a buggy charger cable that had
been run over. Tr. 335-36. The cable was not properly hung and was caught in a man door. Tr.
109.

Belt No. 2 was 500 feet long. 32 FMSHRC at 702. In the order, Lewis noted that the
accumulations along Belt No. 2 were one to 12 inches deep and ten bottom rollers were rubbing
on the accumulations. Id.; Gov’t. Ex. 3; Tr. 91. Inspector Lewis testified that the conditions
along Belt No. 2 were so wet and muddy that they constituted a “borderline situation” in terms of
establishing a violation. 32 FMSHRC at 702. Superintendent Miniard testified that there was no
coal spillage along the belt. Id. at 703. Photos of the area depicted a “wet, soupy mixture of mud
and water.” Id.; M. Ex. 9.

Upon completing his examination of the belts, Lewis traveled to the surface whereupon
he telephoned his supervisor Jim Langley. 32 FMSHRC at 693. After consulting with Langley,
Lewis issued Citation No. 7511467 (Belt No. 4) as well as Order Nos. 7511472 (Belt No. 3),
7511478 (Belt No. 2), and 7511479 (Belt No. 1) for violations of the mandatory safety standard
in section 75.400. Id. Lewis designated the cited violations as “significant and substantial”

and
attributable to Manalapan’s unwarrantable failure to comply.

Id. The Secretary proposed
$60,000 penalties for each violation. Id. at 691. Upon the issuance of the citation and orders, the
belts were shut down, and abatement took 18 employees seven to eight hours. Id. at 698; Tr.
365.

The judge determined that the accumulations along Belt No. 3 were an S&S violation. 32
FMSHRC at 700. He relied on the testimony indicating that although the conditions were wetter
than on the previous belt, there were still areas of combustible material that could dry out and
create a risk of explosion and serious or fatal injuries. Id. However, the judge declined to find
that the violation resulted from an unwarrantable failure. Id. at 701. Considering the preshift
and onshift examination books to determine the duration of the accumulations as several shifts,
the judge found that the operator did not have sufficient notice of the condition because the
condition was recorded as “wet and muddy” instead of “accumulations of coal.” Id. He reasoned
that even though the rollers were turning in the accumulations, there was not a high degree of
danger because of the muddy consistency of the material. Id. The judge acknowledged the
operator’s 27 previous section 75.400 violations but found that, because 40% of them were non-S&S and because not all of them involved conveyor belts, they did not support an unwarrantable
failure finding. Id.

The judge determined that the violation along Belt No. 2 was not S&S because the
testimony indicated that the accumulation was soupy and more liquid than muddy, and thus the
hazard posed by the condition was unlikely to cause serious injury. Id. at 702-03. The judge also
declined to find that the violation was an unwarrantable failure, relying on the inspector’s
testimony that the violation was “borderline,” that it was unlikely to cause a fire, and that the
evidence reflected no more than a moderate degree of negligence. Id. at 703.

As to his determination on conditions at the two remaining belts (which are not the
subject of this appeal), the judge vacated the order alleging a violation of section 75.400 on Belt
No. l. Id. at 704-05. However, he found that the section 75.400 violation along Belt No. 4 was
an S&S violation caused by the operator’s unwarrantable failure. Id. at 697-98.

Consequently, the judge affirmed Citation No. 7511467 (Belt No. 4), modified Order
Nos. 7511472 (Belt No. 3) and 7511478 (Belt No. 2), and vacated Order No. 7511479 (Belt No. 1). Id. He assessed penalties of $20,000 for Citation No. 7511467 (Belt No. 4), $12,000 for
Order No. 7511472 (Belt No. 3), and $4,000 for Order No. 7511478 (Belt No. 2). Id. at 699,
702, 704.

II.

Disposition

The Secretary contends that the judge erred in concluding that the coal accumulation
violations on Belt Nos. 3 and 2 were not the result of the operator’s unwarrantable failure. She
requests that the Commission vacate the judge’s unwarrantable failure determinations and
remand the case to him to apply the correct legal test and consider all the evidence.

In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,”
“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure
test).

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist,
including (1) the extent of the violative condition, (2) the length of time that the violative
condition existed, (3) whether the violation posed a high degree of danger, (4) whether the
violation was obvious, (5) the operator’s knowledge of the existence of the violation, (6) the
operator’s efforts in abating the violative condition, and (7) whether the operator had been placed
on notice that greater efforts were necessary for compliance. See IO Coal Co., 31 FMSHRC
1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998),
rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999). These seven factors need to be viewed in
the context of the factual circumstances of a particular case, and some factors may be irrelevant
to a particular factual scenario. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).
Nevertheless, all of the relevant facts and circumstances of each case must be examined to
determine if an operator’s conduct is aggravated, or whether mitigating circumstances exist. Id.;
IO Coal, 31 FMSHRC at 1351.

At issue here is whether the judge erred in his unwarrantable failure analysis of
Manalapan’s conduct in violating section 75.400 on the No. 3 and 2 belts. In evaluating the
unwarrantable failure designations for these violations, the judge committed a number of errors.
Accordingly, we vacate these unwarrantable failure determinations and remand this case to the
judge. Because the evidence in this case involving the two violations is interrelated and similar
with regard to many of the unwarrantable failure factors, we address both violations together in
discussing each factor.

A.        Degree of Danger of the Violations

With regard to the degree of danger, the judge relied on the testimony of both the
inspector and the operator’s witnesses as to the generally wet and muddy conditions to support
the conclusion that the circumstances were mitigating and thus Manalapan’s conduct was not
sufficiently aggravated to constitute an unwarrantable failure. 32 FMSHRC at 701-03.
Addressing the unwarrantable failure designation of the No. 3 belt violation, the judge reasoned
that the evidence was “insufficient to demonstrate that this muddy mixture posed the requisite
high degree of danger to justify unwarrantable failure findings in this case.” Id. at 701. Because
he determined that the violation on Belt No. 2 was “borderline” and not S&S, he concluded that
the muddy conditions did not pose a high degree of danger and that “the evidence reflects no
more than a moderate degree of negligence.” Id. at 703.

We are troubled by the judge’s statement implying that there is a “requisite high degree of
danger” that must be present to support an unwarrantable failure determination. Id. at 701. The
degree of danger, although a relevant factor, is not a threshold requirement for determining
whether a violation is unwarrantable. The level of danger is but one factor to be considered in
evaluating whether a violation is unwarrantable. See, e.g., Windsor Coal Co., 21 FMSHRC 997,
1001 (Sept. 1999) (stating that the Commission has recognized that a number of factors are
relevant in determining whether a violation is the result of an operator’s unwarrantable failure).
The factor of dangerousness may be so severe that, by itself, it warrants a finding of
unwarrantable failure.  However, the converse of this proposition – that the absence of significant
danger precludes a finding of unwarrantable failure – is not true. The judge should have
considered the evidence relating to the danger factor, determined whether it was an aggravating
or mitigating circumstance, and weighed it against the other relevant factors to determine
whether the operator’s conduct under the circumstances amounted to an unwarrantable failure.
Because the judge did not sufficiently address the other factors and seemingly based his
unwarrantable failure finding on the danger factor alone, we are unable to evaluate whether he
erred in determining that Manalapan’s conduct was not unwarrantable.

Additionally, in considering the degree of danger, it is not clear whether the judge
considered the evidence of potential ignition sources presented by the Secretary. On Belt No. 3,
the Secretary presented evidence that there was an energized charger cable that had been run over
and was stuck in a man door. Tr. 109, 335-36. Also, as to both violations, the Secretary
presented evidence that a number of belt rollers were turning in coal accumulations. 32
FMSHRC at 699, 702. Because the judge did not directly address this evidence, we cannot
determine how he viewed it in light of his conclusion that the wet and muddy conditions
presented a mitigating circumstance. Moreover, in considering the accumulations around Belt
No. 3, the judge affirmed the inspector’s S&S designation, 32 FMSHRC at 700, which requires a
finding that the hazard contributed to by the violation has a reasonable likelihood of causing a
serious injury.  See Cement Div., National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
Accordingly, the judge on remand must also address these issues.

B.        Extent of the Violative Conditions and Efforts to Abate the Violative
Conditions

While the judge found the low level of danger to be a mitigating factor, he did not make
explicit findings as to the extent of the violations and whether the factor constituted a mitigating
or aggravating circumstance. The judge found the violation as to Belt No. 4 extensive, and in
doing so noted that it took a whole crew of 15 or 18 miners two shifts to clean up the
accumulations for the entire belt system.  32 FMSHRC at 698; Tr. 346-47, 365.  However, the
judge found the evidence on the extent of the violations on both Belt Nos. 3 and 2 equivocal
because the conditions were wet and muddy. 32 FMSHRC at 701-03. We are unable to discern
from the record how the judge viewed and weighed the evidence on the extent of the violations.

Similarly, the judge did not analyze Manalapan’s efforts to abate the violative conditions
prior to the issuance of the citation and orders in this case.  The evidence of the number of miners
and time necessary to clean up the accumulations after the issuance of the citation and orders is
relevant to this issue, as it is to the factor of extensiveness of the violative condition.  Also
relevant is Miniard’s testimony that prior to the inspection, he had assigned four miners to work
on the four belts by shoveling spillage and using buckets to dip the mud and place it back on the
belt.  Id. at 693; Tr. 329, 343-45.

On remand, the judge must make explicit findings on the extent of each of the violations
on Belt Nos. 3 and 2 and whether this served as a mitigating or aggravating factor. The judge
must also make findings on Manalapan’s efforts to abate the violative conditions prior to the
issuance of the citations and orders.

C.        Whether Manalapan was on Notice that Greater Efforts for Compliance were Necessary

The judge considered Manalapan’s history of past accumulation violations inconsistently
within his decision and contrary to Commission precedent. Repeated similar violations may be
relevant to an unwarrantable failure determination to the extent that they serve to put an operator
on notice that greater efforts are necessary for compliance with a standard. San Juan Coal Co.,
29 FMSHRC 125, 131 (Mar. 2007); Amax Coal Co., 19 FMSHRC 846, 851 (May 1997).
Despite finding Manalapan’s history of violations to be an aggravating factor with regard to the
unwarrantable designation of Belt No. 4 (32 FMSHRC at 698), the judge erroneously discounted
the operator’s history in his consideration of the unwarrantable nature of Belt No. 3 (id. at 701).
The judge reasoned that 40% of the 27 prior violations relied on by the Secretary were not
designated as S&S and that not all of them concerned accumulation violations on conveyor belts.
Id. This is contrary to Commission precedent.

In evaluating an operator’s history of violations for unwarrantable failure purposes, the
Commission does not require past violations to also have been caused by unwarrantable failure
and “has declined to limit ‘the circumstances under which past violations may be considered by a
judge in determining whether an operator’s conduct demonstrated aggravated conduct.’”
Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001) (quoting Peabody Coal Co., 14
FMSHRC 1258, 1263 (Aug. 1992) (rejecting contention that only past violation involving the
same area may be considered for unwarrantable determination)). Just as the past violations need
not be designated as unwarrantable failures to comply, it is not pertinent to the analysis of the
notice factor in unwarrantable failure determinations that the prior violations were not designated
as S&S. Thus, had the judge considered the operator’s history consistently and under the correct
standard, he presumably would have found it likewise to be an aggravating factor as to the
violations of Belt Nos. 3 and 2, as he did with regard to Belt No. 4.

D.        Duration of Violative Condition, Whether the Condition was Obvious, and
Manalapan’s Knowledge of Condition

The judge’s finding as to how long the conditions existed is unclear. The citation and
orders state that the conditions “existed for at least several shifts.” 32 FMSHRC at 696, 699,
702, 704; Gov’t. Exs. 1-4. The judge noted the “duration” of the accumulations along Belt No. 4
as being attributable to “at least a high degree of negligence evidencing an unwarrantable
failure,” without discussing the length of time the conditions existed. 32 FMSHRC at 698. In
his discussion of the violation on Belt No. 3, he stated that the testimony and preshift and onshift
books reflect that the accumulations were present “for at least several shifts,” consistent with the
language in the citation and orders. Id. at 700, 701. The Secretary contends that the notations of
“wet and muddy” under the hazards column of the operator’s preshift and onshift examination
books indicate that there were violative accumulations of combustible coal material for at least
five weeks. PDR at 6, 13 & n.3; S. Post-Hrg. Br. at 17, 18. Inspector Lewis testified that he
interpreted these entries as admissions of violative coal accumulations. Tr. 94. He also admitted
that his contemporaneous notes indicated that the duration was unknown and that he was not sure
how long the violative conditions existed. When pressed by the judge as to how long it would
take for these conditions to arise, he stated about two weeks. Tr. 118, 128. Manalapan contends
that the notations in the examination books only signify wet and muddy conditions and not
violative coal accumulations. M. Br. at 4; M. Post-Hrg. Br. at 24-25. Miniard testified that the
notations in the books refer to general conditions and travel hazards, not violative coal
accumulations, and were made under the instruction of MSHA’s inspectors, who, as previously
mentioned, told him to write down “wet and muddy” instead of “none observed.” Tr. 342-43,
362-63.

The notations in the examination books relate to the duration of the violations, whether
the condition was obvious, and the operator’s knowledge of the violative conditions. The judge
considered the evidence of the examination books in the context of evaluating the unwarrantable
designation of Belt No. 4, and specifically noted the “repeated reference to accumulations, albeit
muddy, in the preshift and onshift books” as an aggravating factor in his unwarrantable failure
analysis. 32 FMSHRC at 698. However, he did not consider this evidence in similar fashion
with regard to Belt Nos. 3 and 2.

Given the judge’s inconsistent treatment of this evidence, his
failure to reconcile the conflicting testimony regarding the examination books, and his lack of a
finding as to the duration of the violations, we are unable to discern the effect of the factors of
duration of violative condition, whether the condition was obvious, and Manalapan’s knowledge
of the violations’ existence on the issue of unwarrantable failure as to Belt Nos. 3 and 2. On
remand, the judge must address and reconcile the evidence as to the duration of the violations,
whether they were obvious, and the operator’s knowledge of them. He must then weigh these
factors, along with the other relevant factors, to ascertain whether the operator’s conduct rises to
the level of an unwarrantable failure as to both violations.

In sum, in concluding that the violations for Belt Nos. 3 and 2 did not constitute
unwarrantable failures to comply by Manalapan, the judge failed to address evidence on certain
relevant factors, and failed to make necessary findings and consider other relevant factors. As set
forth in our decision, on remand, the judge must explicitly consider and weigh all the relevant
factors as to whether Manalapan’s conduct constituted unwarrantable failures as to Order Nos.
7511472 (Belt No. 3) and 7511478 (Belt No. 2).

III.

Conclusion

For the foregoing reasons, we vacate the judge’s unwarrantable failure determinations as
to Orders No. 7511472 and 7511478 and remand for reconsideration of the evidence under the
correct legal standard.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioner Young, concurring in part and dissenting in part:

I agree with my colleagues that the ALJ’s decision concerning Order No. 7511472 (Belt
No. 3) should be vacated and remanded for the reasons cited in our opinion. However, I disagree
with my colleagues concerning Order No.7511478 (Belt No. 2), and I write separately because
the judge correctly applied the standard for significant and substantial violations to the facts on
Belt No. 2, and because I believe my colleagues have misunderstood how the judge below
determined that the operator’s violation of the accumulations standard in 75.400 did not result
from the operator’s unwarrantable failure. Because I believe the judge’s decision on those
conditions within this order is supported by substantial evidence and consistent with the law, I
would affirm.

A.       Significant and Substantial

Contrary to the majority, I find the judge’s discernment of the relative dangers found in
the area of Belt No. 2 to be clear, consistent with a logical theory of the case, and supported by
substantial evidence. As the judge notes, the uncontradicted testimony at hearing established that
the conditions along the No. 2 belt were wetter than those along Belt Nos. 3 and 4. 32 FMSHRC
at 702 (citing Tr. 91,144, 337). The judge also noted that Inspector Lewis himself conceded that
the conditions here comprised a “‘borderline situation’ as far as a violation was concerned.” Id.
(citing Tr. 150-52).

The judge further relates, in some detail, testimony by witnesses for the operator about
the wet and muddy conditions, corroborating this with additional evidence from inspector Lewis
about the unlikelihood of a fire arising in those conditions. 32 FMSHRC at 703 (citations
omitted). While the judge found the evidence “adequate” to sustain the violation, he applied the
correct standard for S&S to the facts as he found them and deleted the S&S designation. In so
doing, he demonstrated a basis in the evidence for distinguishing the conditions along the No. 2
Belt from those along Belt Nos. 3 and 4. I agree with the judge’s analysis, and no further
exposition is necessary.

B.       Unwarrantable Failure

The majority also contends that the judge erred by failing to properly balance all of the
factors relevant to the determination of whether or not an unwarrantable failure occurred. In their
view, the judge essentially determined that an absence of extreme danger alone precluded a
finding of unwarrantable failure.

On close reading, however, the judge has not relied solely on the diminished degree of
danger. Rather, the reduced danger is a circumstance which affects two factors, and one of those
factors has repeatedly been upheld as uniquely determinative on the issue of unwarrantable
failure. In holding that the reduced degree of danger arising from the “extremely muddy nature
of the accumulations [was] a mitigating factor” (32 FMSHRC at 699, 701), the judge clearly
connects this circumstance to a reduction in the operator’s level of negligence, or culpability, by
concluding: “Consequently, the failure to promptly remove these accumulations does not rise to
the level of aggravated conduct.” Id. at 701 (emphasis added).

Further emphasizing this logical connection, the judge sums up the negligence issue:
“Although the negligence attributed to Manalapan is moderate to high, Manalapan’s conduct is
not sufficiently aggravated or unjustified to warrant an unwarrantable failure.” Id. (emphasis
added). Thus, it is clear that the judge did not dismiss the unwarrantable failure finding solely
based on the relative danger of conditions on the Number 2 belt. Rather, he viewed those
conditions as mitigating the operator’s negligence in failing to address them more promptly.

Aggravated conduct reflecting more than ordinary negligence on the part of the operator
has long been held to be a prerequisite for any finding of unwarrantable failure. See, e.g., Emery
Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1998) (“[W]e conclude that unwarrantable failure
means aggravated conduct, constituting more than ordinary negligence, by a mine operator in
relation to a violation of the Act.”). It is obvious from context that the judge was discussing the
wetness of the accumulations not merely as a circumstance that made those conditions less
dangerous than on Belt Nos. 3 and 4, but as a factor that affected his consideration of the
operator’s negligence. Unlike the other factors, which may have relative weight which must be
evaluated against other aggravating or mitigating circumstances, a finding of moderate
negligence, alone, forecloses an unwarrantable failure determination. See Emery Mining, 9
FMSHRC at 2001 (unwarrantable failure must constitute more than ordinary negligence).

The judge’s reasoning is consistent with that expressed elsewhere in his opinion on the
issue of unwarrantable failure, and is in fact directly drawn from our jurisprudence. In regard to
the No. 4 belt, the judge in fact sets the stage for his analysis of the other belts. After recounting
the aggravating factors, the judge observed that “these and all other relevant factors must be
viewed in the context of the factual circumstances of this case and all material facts and
circumstances must be examined to determine if a mine operator’s negligence is mitigated.” 32
FMSHRC at 698 (citing Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000)) (emphasis
added); see also Eagle Energy Inc., 23 FMSHRC 829, 834 (Aug. 2001) (citations omitted) (same
language and analytical framework). Continuing in that vein, the judge further noted that
“resolving the unwarrantable failure issue is a matter of degree,” requiring a determination of
whether the accumulations at issue “posed a high degree of danger that warranted a greater
standard of care.” 32 FMSHRC at 698.

Thus, the judge has cogently expressed the essence of an unwarrantable failure analysis
for the entire case. There was no need for him to restate and re-evaluate elements that
maintained their relative value, and there is certainly no error in rejecting an unwarrantable
failure designation solely on the grounds that the operator’s misfeasance represented, at worst,
ordinary negligence – provided there is evidentiary support for that determination. I believe there
is, and I therefore respectfully dissent.

/s/ Michael G. Young

Michael G. Young, Commissioner

Distribution:

John M. Williams, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Jerold Feldman

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004