Secretary of Labor v. Black Beauty Coal Company

Plain-English summary

The Commission affirmed a modified safeguard requiring a clear 24-inch travelway free of mud and water along conveyor belts. It vacated the Judge's findings that one ventilation violation and three combustible-material accumulation violations were not significant and substantial because the Judge improperly relied on redundant protections such as methane monitors, fire-suppression systems, water sprays, carbon-monoxide monitors, firefighting brigades, breathing devices, and turnout gear. The Commission also remanded the unwarrantable-failure findings for two accumulation orders because the same flawed danger analysis may have affected them, while emphasizing that S&S and unwarrantable failure require separate analyses.

Decision snapshot

• Governing provisions: 30 C.F.R. §§ 75.1403-5(g), 75.370(a)(1), and 75.400; 30 U.S.C. §§ 814(d)(1) and 874(b)
• Outcome: The modified-safeguard violation was affirmed; the non-S&S findings for the ventilation citation and three accumulation violations were vacated and remanded; and the two unwarrantable-failure findings were remanded.
• Key point: Redundant safety measures intended to protect miners after a hazard develops are irrelevant to whether the underlying violation is S&S, and unwarrantable failure must be analyzed separately.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE NW, SUITE 520N

WASHINGTON,
DC 20004-1710

SECRETARY OF LABOR,                           
 :                         

MINE SAFETY AND HEALTH                    :                   

ADMINISTRATION (MSHA)                     
 :        Docket Nos. LAKE 2009-410

:                    LAKE 2009-412                                                  

v.                                                            :                  
 LAKE 2009-413

:                    LAKE 2009-414   

BLACK BEAUTY COAL COMPANY          :                    LAKE
2009-415        

BEFORE: Jordan, Chairman;
Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY THE COMMISSION:

These proceedings
arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.           §
801 et seq. (2012) (“Mine Act”). They involve three citations and two orders which were issued to Black Beauty Coal
Company (“Black Beauty”) by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”). Citation No. 8414923, in relevant part, alleges a
violation of a safeguard notice and its subsequent modification. Citation No.
8414910 alleges a “significant and substantial” (“S&S”)[1]
violation of the safety standard in 30 C.F.R.    § 75.370(a)(1), which concerns
ventilation in mines. Citation No. 6680994 and Order Nos. 8414938 and 8414939
allege three S&S violations of the safety standard in 30 C.F.R. § 75.400,
which concerns accumulations of combustible materials in mines. The two orders
also alleged that the violations were a result of the operator’s unwarrantable
failure to comply.[2]

The
Administrative Law Judge affirmed the citation issued for a violation of the
safeguard notice. The Judge also affirmed the violations alleged in the other
two citations and the two orders. However, he did not find the other citations
or either order to be S&S and did not find that the orders constituted
unwarrantable failures to comply. 36 FMSHRC 1821-59 (Mar. 2014) (ALJ).[3]

The parties filed
cross petitions for discretionary review, which we granted.

For the reasons
that follow, we affirm the Judge’s decision that Black Beauty violated  the safeguard
notice. However, we vacate and remand the Judge’s decision that the ventilation
and accumulations violations were not S&S. We also remand the Judge’s
decision that the violations subject to the two orders were not the result of
the operator’s unwarrantable failure to comply with a mandatory safety
standard.

I.                  

Factual and Procedural Background

A.    
Citation No. 8414923

• Violation of a Safeguard Notice

In May 2003, an MSHA inspector issued Black Beauty a
notice to provide safeguard at its Air Quality No. 1 Mine which stated, in
relevant part:

This is a Notice to Provide Safeguard(s) requiring a
clear travelway at least 24 inches wide [to] be provided on both sides of all
belt conveyors. Where roof supports are installed within 24 inches of a belt
conveyor, a clear travelway of at least 24 inches is required on the side of
such support farthest from the conveyor. [4]

Safeguard No. 7591942; Ex. G-87.

In August 2007, an MSHA inspector issued the following
modification: “[t]his is to modify the safeguard requiring a clear travel way
of at least 24 inches along both side[s] of all conveyor belts. The above referenced
safeguard is hereby modified to require [ ] that the 24 inch travel way shall
be clear of mud and water.” Ex. G-87 at 3.

In January 2009, MSHA Inspector Franklin issued
Citation No. 8414923 at the Air Quality #1 Mine for an alleged violation of 30
C.F.R. § 75.1403-5(g). Ex. G-86. The citation alleged that a clear 24-inch
walkway was not provided on either side of the 2-B belt line at crosscut
numbers 22 to 23 as water accumulated to a depth of 2 to 14 inches in the entry
for a distance of 55 feet. The
citation was based on Safeguard No. 7591942, as modified in 2007. Ex. G-87.

The
Judge found that Safeguard No. 7591942 as modified by No. 7591942-03 was valid
on its face and that the Secretary had established a violation of this
safeguard notice. 36 FMSHRC at 1842-44.

B.    
Citation No. 8414910

• Ventilation Violation

In January 2009, Inspector Franklin issued Citation
No. 8414910 to Black Beauty for an alleged violation of 30 C.F.R. § 75.370(a)(1).[5]
The citation alleged that the operator was not complying with the approved
ventilation plan in the number 1 active section. Specifically, the citation
claims that a continuous miner being operated in the number 7 entry did not
have adequate ventilation to dilute, render harmless and carry away flammable
explosive gasses, dust, and fumes while mining. In this regard, the inspector
noted that the air velocity at the inby end of the wing curtain was
approximately 4,982 cubic feet per minute (“CFM”) and that the plan requires a
minimum of 7,000 CFM.[6]
The inspector determined that the violation was S&S. Ex. G-59. Equipment
on the section included a number of safety features intended to minimize the
hazards from dust and explosive gasses, including a methane monitor on the continuous
miner (which was set at 2%), a
scrubber on the continuous miner (which included water sprays to keep the dust
down), and a fan that would pull air across the duct work, faces and the miner
itself. Tr. III 8; 36 FMSHRC at 1851.

The Judge found that the Secretary had established a
violation but that the violation was not S&S. The Judge based his
non-S&S finding partly on the presence of a safety measure, the methane
monitor on the continuous miner, which would “have shut the operation down if
methane reached 2%.” 36 FMSHRC at 1851.

C.    
Citation No. 6680994

• Accumulations Violation

In February 2009, MSHA issued Citation No. 6680994 at Black
Beauty’s Riola Mine Complex for an alleged violation of 30 C.F.R. § 75.400.[7]
The citation alleged that oil, oil-saturated coal fines, and brake fluid were
present on a mantrip located in Unit #1. Specifically, the accumulations were
in the transmission, brake caliper and muffler compartments, and ranged from a
film of oil to a quarter of an inch in depth. The inspector determined that the
violation was S&S. Ex. G-9. The mantrip was equipped with safety measures,
including a heat-activated fire suppression system and a “murphy switch” that
automatically shuts down the mantrip if engine temperatures exceed 230 degrees.
Tr. I 129-31.

The
Judge found that the Secretary had established a violation but that the
violation was not S&S. The Judge based his non-S&S finding partly on
the presence of a safety measure, the fire suppression system, which he
believed reduced the likelihood of a fire. 36 FMSHRC at 1827-28.

D.    Order No. 8414938 – Accumulations Violation

In
February 2009, Inspector Franklin issued Order No. 8414938 at the Air Quality

1 Mine for an alleged violation of 30 C.F.R. § 75.400. The order stated that there

was float coal dust deposited on rock dusted surfaces from the belt tail going
outby for three crosscuts. The inspector alleged that the violation was S&S
and a result of the operator’s unwarrantable failure to comply with the
standard. Ex. G-24. The inspector
testified that a “traveling roller was rubbing very hard against the frame,
causing an ignition source.” Tr. I 207. Witnesses testified about safety
measures present in the area, including fire suppression devices and carbon
monoxide (“CO”) monitors, which would notify the firefighting brigades of the
presence of a fire. Tr. I 208-09, 221. Each member of the firefighting brigades
at the mine was equipped with a breathing device, foam generator and a foam
cannon. Tr. I 221, 256-57.

The Judge found that the Secretary had established a
violation but that the violation was not S&S. The Judge examined whether a
confluence of factors existed to create the likelihood of a fire, citing in
part Texasgulf, Inc., 10 FMSHRC 498, 500-03 (Apr. 1988). During his
S&S analysis, the Judge considered the presence of safety measures such as
water sprays, CO monitors, fire suppression devices, a fire brigade, breathing
devices and turnout gear for firefighters. The Judge stated that “ while
[he] considered the presence of water sprays, CO monitors and other
protections, [his] non-S&S holding [was] not based solely on these
protections. The risk of fire was quite low taking into consideration continued
mining operations, including the operator’s practice of frequent examinations
and cleaning.” 36 FMSHRC at 1834-35.

The Judge also ruled that the violation was not a
result of the operator’s unwarrantable failure to comply with the standard. While
the Judge found that the violation was obvious and the operator had been put on
notice that greater efforts were necessary for compliance, he found that the
violation did not exist over several shifts, was not extensive, did not present
a high degree of danger and that the operator did not have knowledge of the
existence of the violation. Id. at 1835.

E.    
Order No. 8414939 –
Accumulations Violation

In February 2009, MSHA issued Order No. 8414939
charging a violation of 30 C.F.R.  § 75.400. The order alleged that a thin
coating of float coal dust on rock dusted surfaces, was allowed to accumulate
upon the energized main south belt from head to tail. Float coal dust and fine
coal had also been allowed to accumulate in crosscuts 8 and 9. The inspector
determined that the violation was S&S because there were many rollers in
the area and testified that “[a]ll it takes is one of the rollers
malfunctioning, going out, dropping down in this material, and the hot bearings
igniting the fuel source.” Tr. I 212. The inspector also alleged that the
violation was a result of the operator’s unwarrantable failure to comply with
the standard. Ex. G-25.

The Judge found that the Secretary had
established a violation but that the violation was not S&S. The Judge did
not explicitly base his non-S&S finding on the presence of safety measures,
but did conclude that, “as stated above with respect to [Order No. 8414938] an
injury would be unlikely if fire would start.” 36 FMSHRC at 1837-38. Given the
Judge’s discussion of safety measures during his S&S analysis for Order No.
8414938, it is unclear as to whether the Judge implicitly considered safety
measures during his S&S analysis for Order No. 8414939.

The Judge also found that the violation was not a
result of the operator’s unwarrantable failure to comply with the standard. The
Judge found that the violation was extensive and obvious and that greater
efforts were necessary for compliance. However, he also held that the violation
did not present a high degree of danger, that there was no evidence that the
violative condition had existed for a long period of time, and that the
operator had no knowledge of the existence of the violation. 36 FMSHRC at
1837-38.

II.               

Disposition

Black
Beauty contends that the Judge erred in affirming a violation of the modified
safeguard. In particular, the operator argues that the modified safeguard is
invalid because it fails to identify a hazard with specificity. Black Beauty recognizes,
however, that the validity of the safeguard and the modification at issue here
were the subject of another docket pending on appeal before the Commission when
the petitions for review were filed in the instant case.

In
his petition, the Secretary maintains that the Judge erred by considering the
presence of safety measures when ruling that the ventilation and accumulations
violations were not S&S. The Secretary also argues that the Judge’s
unwarrantable failure rulings related to the two orders may have been affected
by his erroneous S&S analyses. The Secretary requests that the Commission
remand the S&S and unwarrantable failure issues to the Judge.

A.    
Validity of Safeguard
No. 7591942, as Modified

On January 28, 2016, after the parties had filed their
petitions, we issued a decision affirming modified Safeguard No. 7591942. Black
Beauty Coal Co., 38 FMSHRC 1 (Jan. 2016). Our decision in that case
specifically addressed the same issue before us in this case , i.e.
whether the safeguard, as subsequently modified, identified a hazard with
specificity. We rejected the operator’s challenge and affirmed the safeguard:

Because the validity of . . . safeguard notice and
modification is a purely legal issue, we review the judge's decision de novo
. . . We conclude that when the original issuance and its modification are
read in conjunction, the modified safeguard notice identifies a hazardous
condition and modified remedy with sufficient specificity to provide the
operator with notice as to the conduct that is prohibited or required. Accordingly,
we find that the original safeguard notice and its modification are valid.

Id. at 4.

The operator did not seek judicial review of that decision.
Therefore, the validity of the modified safeguard has been established as a matter
of law by Commission precedent.[8]

B.    
S&S Issues

The S&S terminology is taken from section 104(d) of
the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. We
have held that a violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious
nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission
further explained:

In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard — that is, a measure of danger to safety —
contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.

Id. at 3-4
(footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133,
135 (7th Cir. 1995); Austin Power, Inc. v. Sec. of Labor, 861 F.2d 99,
103 (5th Cir. 1988) (approving Mathies criteria).

The Commission evaluates the reasonable likelihood of
injury assuming that normal mining operations will continue. See U.S. Steel
Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). When examining whether an
explosion or ignition is reasonably likely to occur, it is appropriate to
consider whether a “confluence of factors” exists to create such a likelihood. Texasgulf,
10 FMSHRC at 501; see Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184
(Feb. 1991). Some of the factors to be considered include the extent of
accumulations, possible ignition sources, the presence of methane, and the type
of equipment in the area. See Utah Power & Light Co., 12 FMSHRC 965,
970-71 (May 1990); Texasgulf, 10 FMSHRC at 501-03.

It is well settled that safety measures are not to be
considered in determining whether a violation is S&S. Cumberland Coal
Res., LP, 717 F.3d 1020, 1029 (D.C. Cir. 2013); Knox Creek Coal Corp.,
811 F.3d 148, 162 (4th Cir. 2016); Buck Creek, 52 F.3d at 135; Brody
Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 2015); Cumberland Coal Res., LP,
33 FMSHRC 2357, 2369 (Oct. 2011).

In Cumberland, the D.C. Circuit confirmed that
safety measures are irrelevant to the S&S analysis. ­717 F.3d at 1028-29. The
operator argued that the Commission erred in finding that certain violations
were S&S by failing to consider evidence of preventative measures that
would have rendered both the occurrence of an emergency and the resulting
injuries less likely. The D.C. Circuit concluded that consideration of redundant safety measures is
inconsistent with the language of section 104(d)(1) of the Mine Act and broadly held that “[b]ecause
redundant safety measures have nothing to do with the violation, they are
irrelevant to the significant and substantial inquiry.” Id. at 1029.
By using the phrase “significant and substantial inquiry” rather than referring
to a specific step in the S&S analysis, the court made clear that safety
measures are irrelevant to all elements of the S&S analysis.

The Court also indicated that all types of safety
measures are “irrelevant to the significant and substantial inquiry” because
the focus of the significant and substantial inquiry is the nature of the
violation. “By focusing the decisionmaker's attention on ‘such violation’ and
its ‘nature,’ Congress has plainly excluded consideration of surrounding
conditions that do not violate health and safety standards.” Id. at 1029,
citing Sec'y of Labor v. FMSHRC, 111 F.3d 913, 917 (D.C. Cir. 1997).

Similarly, the Fourth Circuit recently held in Knox
Creek that safety measures, at least those that are required by mandatory
standards, are irrelevant to the S&S analysis. 811 F.3d at 162. ‘“If mine operators could avoid S&S liability—which is
the primary sanction they fear under the Mine Act—by complying with redundant
safety standards, operators could pick and choose the standards with which they
wished to comply.’ Such a policy would make such standards ‘mandatory’ in name
only.” Id. The Fourth Circuit also approvingly cited the D.C. Circuit ruling
in Cumberland that safety measures, without any qualification, are
irrelevant to the S&S analysis.

In Brody Mining, we held that “[w]hen deciding
whether a violation is S&S, courts and the Commission have consistently
rejected as irrelevant evidence regarding the presence of safety measures
designed to mitigate the likelihood of injury resulting from the danger posed
by the violation.” 37 FMSHRC at 1691 (citing Cumberland, 33 FMSHRC at
2369). Therefore, in Brody we interpreted the decision of the D.C.
Circuit in Cumberland as applying to all safety measures without
qualification or exception.

Black Beauty nevertheless argues that safety measures must
be considered as part of the S&S analysis. The operator claims that two court
of appeals decisions stating that safety measures are irrelevant to the S&S
analysis are very limited in scope and thus not applicable to this case.

First, Black Beauty contends that the D.C. Circuit’s
decision in Cumberland, holding that safety measures are
irrelevant to the S&S analysis, was limited to the specific facts at issue
in that case, i.e., violations involving emergency safety standards. However,
nothing in the D.C. Circuit’s decision limits the ruling to the circumstances of
that case. Although the court recognized that emergency standards under the
Mine Act are different from other Mine Act standards for purposes of S&S
determinations, that part of the decision had nothing to do with whether safety
measures must be considered in the S&S analysis.

The court later rejected, on two separate grounds, the
operator’s argument that safety measures must be considered. The court pointed
out that for an emergency to occur, one must assume that all the redundant
safety measures have failed. Id. at 1028-29. Importantly, the court also
concluded that “consideration of redundant safety measures is inconsistent with
the language of [section 104(d)(1)].” Id. at 1028-29. It explained that
Congress intended that the focus of the S&S inquiry be “the nature of the
violation,” not the surrounding conditions. Id. at 1029. The D.C.
Circuit also cited with approval the Seventh Circuit’s decision in Buck
Creek, 52 F.3d at 136, for the proposition that safety measures “are
irrelevant to the significant and substantial inquiry.” Id. Accordingly,
we reject the operator’s argument.

Second, Black Beauty argues that the Seventh Circuit’s
decision in Buck Creek – that the presence of safety measures “to deal
with a fire does not mean that fires do not pose a serious safety risk to
miners” – did not explicitly hold that safety measures are irrelevant to
all elements of the S&S analysis. 52 F.3d at 136. We note that the Seventh
Circuit’s decision is consistent with our practice of finding that
safety measures are irrelevant to all elements of the S&S analysis,
including the likelihood that a fire would occur. For example, prior to Buck
Creek, we had clarified that the exercise of caution by miners is
irrelevant to the S&S analysis, including the portion of the S&S
inquiry that seeks to determine the likelihood of injury from a hazard. See Eagle
Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992). This principle applies
equally to the relationship between safety measures and the S&S analysis.

Thus,
the Judge erred in considering safety measures when determining that the
ventilation and accumulation violations
were not S&S. Specifically, the methane monitor, fire suppression system
and devices, water sprays, CO monitors, fire brigade, breathing devices and
turnout gear for firefighters are the sort of safety measures that we, and the
appellate courts, have held to be irrelevant to the S&S analysis under the
Act. We remand to the Judge to reconsider his S&S findings for these
violations in light of our ruling in this decision.

C.    
Unwarrantable Failure
Issues

The Judge held that the accumulations violations underlying the two
orders before us were not a result of the operator’s unwarrantable failure to
comply with a standard, partly because the violations did not pose a high
degree of danger.[9]
36 FMSHRC at 1835, 1838. The Secretary claims that the Judge’s erroneous non-S&S
findings for these orders led him to view the available safety measures as a
mitigating factor and influenced his findings as to the degree of danger, and
consequently, his determinations as to unwarrantable failure.

The
Commission has recognized that whether conduct is “aggravated” in the context
of unwarrantable failure is determined by considering
the facts and circumstances of each case to determine if any aggravating or
mitigating circumstances exist. Whether the conduct is

“aggravated”
in the context of unwarrantable failure is determined by looking at (1) the
extent of

the
violative condition, (2) the length of time it has existed, (3) whether the
violation posed a

high
risk 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.
Brody Mining, 37 FMSHRC at 1691; Consolidation Coal Co., 35 FMSHRC
2326, 2330 (Aug. 2013); Manalapan Mining Co., 35 FMSHRC 289,
293 (Feb. 2013); IO
Coal Co., 31
FMSHRC 1346, 1351-57 (Dec. 2009).[10]

In particular,
the Commission has relied upon the high degree of danger posed by a violation
to support an unwarrantable failure finding. See BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1243-44 (Aug. 1992) (finding unwarrantable failure where
unsaddled beams “presented a danger” to miners entering the area); Warren
Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding violation to
be aggravated and unwarrantable based upon “common knowledge that power lines
are hazardous, and . . . that precautions are required when working near power
lines with heavy equipment”); Quinland Coals, Inc., 10 FMSHRC 705, 709
(June 1988) (finding unwarrantable failure where roof conditions were “highly
dangerous”). The Commission has specifically noted that the factor of
dangerousness, by itself, may warrant a finding of unwarrantable failure,
though the absence of significant danger does not necessarily preclude a
finding of unwarrantable failure. Manalapan Mining, 35 FMSHRC at 294.

As discussed above, the Judge’s determinations that the
violations in these orders were not S&S may have been flawed due to
consideration of redundant safety measures. We further conclude that the
Judge’s non-S&S findings might have influenced his view of the degree of
danger, and consequently his unwarrantable failure determinations for these
orders. [11]

Accordingly, we remand this case to the Judge to
reconsider his unwarrantable failure findings for these violations in light of
our ruling in this matter.

III.            

Conclusion

We affirm the Judge’s determination that the modified safeguard is
valid and that the operator failed to comply with it.

We remand the Judge’s S&S and unwarrantable failure findings at
issue for reconsideration in light of our decision.

/s/ Mary Lu Jordan

Mary Lu
Jordan, Chairman

/s/
Michael G. Young

Michael G.
Young, Commissioner

/s/ Robert
F. Cohen, Jr.

Robert F.
Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick K.
Nakamura, Commissioner

/s/
William I. Althen

William I.
Althen, Commissioner

[1] The S&S terminology is taken from section
104(d)(1) of the Act, 30 U.S.C.          § 814(d)(1), 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.”

[2] The unwarrantable failure terminology is taken from
section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), which establishes more
severe sanctions for any violation that is caused by “an unwarrantable failure
of [an] operator to comply with . . . mandatory health or safety standards.”

[3] The Judge’s decision was issued in March 2014, but is
set forth in the Commission Bluebook for July 2014.

[4] Section 314(b) of the Act states that “[o]ther
safeguards adequate, in the judgment of an authorized representative of the
Secretary, to minimize hazards with respect to transportation of men and
materials shall be provided.” 30 U.S.C. § 874(b).

[5] 30
C.F.R. § 75.370(a)(1) states that “[t]he operator shall develop and follow a ventilation
plan approved by the district manager. The plan shall be designed to control
methane and respirable dust and shall be suitable to the conditions and mining
system at the mine.”

[6] The
approved ventilation plan, in a supplement filed June 17, 2008, provides that
the mine “will maintain 7000 cfm of air at the end of the line curtain without
the scrubber running.” Ex. G-63.

[7] 30
C.F.R. § 75.400 requires, in part, that “[c]oal . . . and other combustible
materials [] shall be cleaned up and not be permitted to accumulate in active
workings, or on diesel-powered and electric equipment therein.”

[8] Commissioners Althen and Young dissented from the
Commission’s decision in the Black Beauty case referenced above. They recognize
the decision in that case represents the law of the case here and governs the
finding on the same safeguard in this case but continue to believe the
safeguard should be found invalid for the reasons set forth in their earlier
dissent.

[9] 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, 52 F.3d at 136 (approving Commission’s
unwarrantable failure test).

[10] A judge may determine, in his or her discretion, that
some factors are not relevant or may determine that some factors are much less
important than other factors under the circumstances. Brody Mining, 37
FMSHRC at 1692.

[11] Of course, S&S violations are not synonymous with
unwarrantable failures. An S&S inquiry centers on
whether a “violation is of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health
hazard.” 30 U.S.C.   § 814(d)(1). An
unwarrantability determination, on the other hand, involves an analysis similar
to gross negligence or reckless disregard. Sec’y of Labor v. FMSHRC, 111
F.3d at 919 (“the Secretary and the Commission interpret the words ‘unwarrantable
failure’ to require a culpability determination
similar to gross negligence or recklessness”). The Judge must analyze the
relevant factors to determine whether the operator engaged in aggravated
conduct constituting an unwarrantable failure. Emery Mining, 9 FMSHRC at
2001, 2003-04. On remand, therefore, the Judge’s consideration of the S&S
issue and unwarrantability issue will require separate analyses.