Secretary of Labor v. ICG Illinois, LLC

Plain-English summary

At ICG Illinois's Viper Mine, a refuge chamber was 1,110 to 1,125 feet from the nearest working face, exceeding the 1,000-foot limit in 30 C.F.R. § 75.1506(c)(1). The operator did not dispute the violation, and the only issue before the Commission was whether it was significant and substantial. The majority explained that an emergency-standard analysis assumes the emergency contemplated by the rule, but does not automatically make every violation S&S. It affirmed because the extra distance could critically delay miners traveling through smoke, debris, injury, and disorientation, while the mine's methane and ignition history and equipment near the face supported the judge's factual findings. The availability of self-contained self-rescuers did not mitigate the violation because redundant protections are assumed to have failed in the emergency that makes the refuge necessary. Commissioner William I. Althen dissented, arguing that the inspector was not an emergency expert, believed even a one-foot overage would be S&S, and did not provide enough mine-specific evidence.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1506(c)(1)
• Outcome: The ALJ's S&S designation for the refuge-chamber violation was affirmed.
• Key point: For an emergency standard, the emergency is assumed, but S&S still depends on whether the particular violation and mine conditions make the protected hazard and serious injury reasonably likely.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,                            :

MINE SAFETY AND HEALTH                  :        

ADMINISTRATION (MSHA)                     :                                

:          Docket No. LAKE 2013-160          

v.                                              
:                               

:                                

ICG ILLINOIS, LLC                                                  :                    

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

DECISION

BY: Jordan, Chairman; Young, and Cohen, Commissioners

This proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act” or “Act”). It involves a single citation issued to ICG Illinois,
LLC (“ICG”) by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”). The citation alleges that a refuge alternative at ICG’s Viper Mine
was located 1,110 feet from the nearest working face, in violation of 30 C.F.R.
§ 75.1506(c)(1). [1]
The Judge concluded that a violation had occurred, was significant and
substantial (“S&S”), and was the result of moderate negligence. [2] 37 FMSHRC
19, 25-27 (Jan. 2015) (ALJ).  The only issue remaining before the Commission is
the S&S designation. For the reasons below, we affirm the Judge.

I.

Factual and Procedural Background

On September 18, 2012, MSHA Inspector Dennis Baum traveled
to ICG’s Viper Mine to conduct a spot inspection for methane liberation. [3] At the
time, the mine was on a 10-day spot inspection cycle, due to methane liberation
of more than 500,000 cubic feet in a 24-hour period. [4] While looking
through the mine’s examination books, the inspector noticed a report from the
previous day indicating that the refuge alternative in the Main West primary
escapeway needed to be moved closer to the working face. The issue was not
mentioned in the pre-shift examination report for the day of the inspection, so
he warned ICG’s safety and compliance foreman that a citation would be issued
if the refuge alternative was still too far from the face.

Meanwhile, ICG’s production supervisor, Gabriel
Alderman, had headed underground for his shift. When he arrived on the section,
the section foreman informed him that the refuge alternative had to be moved
closer to the face. Alderman asked a scoop operator to begin preparing the new
area for the relocation. Such preparations included scooping the crosscut,
laying down floor dust, and moving signs and lifelines. The inspector and the safety
and compliance foreman later traveled down to the refuge alternative, which had
not yet been moved, and found that it was 1,110-1,125 feet from the closest
working face, 110-125 feet farther than the allowable maximum pursuant to 30
C.F.R. § 75.1506(c)(1). Accordingly, Baum issued Citation No. 8443225. He
concluded that the violation was reasonably likely to result in fatalities and
designated the citation as S&S.

The fact of the
violation was not contested. 37 FMSHRC at 23. The Judge concluded that the
violation was S&S, based on an analysis of the steps outlined in Mathies
Coal Co. , 6 FMSHRC 1, 3-4 (Jan. 1984). He found that the violation contributed
to the hazard of miners being unable to reach the refuge in the event of an
emergency, because the extra distance “would result in additional and possibly
critical delays accessing the chamber.” 37 FMSHRC at 25-26. He noted the mine’s
history of methane and ignition issues, and the presence of possible ignition
sources due to equipment working near the face. He stated that these conditions
contributed to the likelihood of an ignition or explosion, which would cause poor
visibility and disorientation. He found a reasonable likelihood of fatal injury
for the 17 miners on the section. Id .

The Judge rejected ICG’s contention that the Secretary
failed to take the particular facts surrounding the violation into account. In
making this claim, ICG pointed to the inspector’s testimony that he would find
every violation of the cited standard at this mine to be S&S. Tr. 46-47. The
Judge stated that the inspector had limited this testimony to violations “at
this mine,” and also noted the mine’s history of ignition and methane problems
and the presence of working equipment near the face. 37 FMSHRC at 26. The Judge
also rejected ICG’s claim that the presence of self-contained self-rescuers
(“SCSRs”) mitigated the gravity. He noted the inspector’s testimony that refuge
alternatives are only meant for use in extreme situations where escape is
impossible, and stated that SCSRs provide only a limited amount of air, do not
protect against burns or falling rock, and “could not ensure that disoriented
miners would be able to reach a refuge alternative located more than 100 feet
beyond the distance they are trained to travel in emergencies.” Id.

II.

Disposition

The Commission has recognized 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. , 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.

6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek
Coal, Inc. v. FMSHRC , 52 F.3d 133, 135 (7th Cir. 1995); Austin Power,
Inc. v. Secretary of Labor , 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria). In conducting the Mathies analysis, the focus now generally
centers on the interplay between the second and third steps. Newtown Energy
Inc. , __ FMSHRC __ , slip op. at 5, No. WEVA 2011-283 (Aug. 29, 2016).

The second step
of Mathies addresses the contribution of the violation to a discrete
safety hazard, i.e., the extent to which the violation increases the likelihood
of occurrence of the particular hazard against which the mandatory standard is
directed. Newtown , slip op. at 5, citing Knox Creek
Coal Corp. , 811 F.3d 148, 162-63 (4th Cir. 2016) (citing Black Beauty
Coal Co., 34 FMSHRC 1733, 1741 n. 12 (Aug. 2012)). At this stage, it is
essential that the Judge adequately define the particular hazard to which the
violation allegedly contributes. A clear description of the hazard at issue provides
context when determining the relative likelihood that the violation contributes
to a hazard, and will also frame the potential source of injury for purposes of
determining gravity in the third step of Mathies . The starting point for
determining the hazard is the regulation cited by MSHA; the “hazard,” for
purposes of the Mathies analysis, is the danger which the cited safety
standard is intended to prevent. Newtown , slip op. at 6.

Having clearly
defined the hazard, the next task in analyzing the second step of Mathies
is for the Judge to determine whether the Secretary has proven that the
violation contributed to that hazard. That means the second step requires a
determination of whether, based upon the particular facts surrounding the
violation, there exists a reasonable likelihood of the occurrence of the hazard
against which the mandatory safety standard is directed. Id. We
recognize that “reasonable likelihood” is not an exact standard measured in
percentages, but rather a matter of degree, an evaluation of risk with a particular
focus on the facts and circumstances presented. [5]
Id. at 7.

At this stage, the focus shifts from the violation to the hazard. The
third and fourth steps are primarily concerned with gravity, i.e., whether the
hazard identified in step two would be reasonably likely to result in serious
injury. See Cumberland Coal Res., LP , 33 FMSHRC 2357, 2364-66
(Oct. 2011) (citing Musser Eng’g, Inc. & PBS Coals, Inc. , 32 FMSHRC
1257, 1281 (Oct. 2010); Knox Creek , 811 F.3d at 162. If the Judge
concludes, based upon the evidence, that the violation sufficiently contributes
to the hazard identified at step two, the Judge then assumes such occurrence
and determines at step three whether, based upon the particular facts
surrounding the violation, the occurrence of that hazard would be reasonably
likely to result in an injury. At step four, the Judge determines whether any
resultant injury would be reasonably likely to be reasonably serious.

Whether a
particular violation is S&S must be determined “based on the particular
facts surrounding the violation, including the nature of the mine involved.” Texasgulf
Inc. , 10 FMSHRC 498, 501 (Apr. 1988). Additionally, the Commission has
recognized that emergency standards “are different from other mine safety
standards,” as they are “intended to apply meaningfully only when an emergency
actually occurs.” Cumberland , 33 FMSHRC at 2367, aff’d , 717
F.3d 1020 (D.C. Cir. 2013). Accordingly, when determining whether a violation
of an emergency standard is S&S, the violation should be considered in the
context of the emergency contemplated by the standard. Spartan Mining Co. ,
35 FMSHRC 3505, 3508-09 (Dec. 2013). Specifically, the existence of a
contemplated emergency should be assumed when defining the hazard contributed
to by the violation. See Cumberland , 33 FMSHRC at 2364,
2368; Mill Branch Coal Corp. , 37 FMSHRC 1383, 1394 (July 2015). The
likelihood that the emergency will actually occur is irrelevant to the Mathies
inquiry. Black Beauty Coal Co. , 36 FMSHRC 1121, 1124 (May 2014), citing
Cumberland , 717 F.3d at 1027. Thus, contrary to ICG’s concerns, the
inspector was correct to assume a “disaster” or “worst case scenario” when
making his S&S determination. Tr. 31-33, 54-55.

However, assuming the existence of an emergency is not the same as
assuming that the violation is S&S; emergency standard violations are not per
se S&S. As the Commission has made clear, the particular facts
surrounding the violation must be considered. Not every violation of an
emergency standard is automatically an S&S violation. Cumberland ,
33 FMSHRC at 2368-69.

Refuge alternatives provide a “last resort for miners
unable to evacuate the mine during an emergency.” 73 Fed. Reg. 80656-01, 80681
(Dec. 2008); Tr. 26-27, 92-93. The inspector testified that emergencies requiring
the use of a refuge would include roof falls, bad air, ignitions, or explosions.
Tr. 26-27. Refuges increase the likelihood of survival in an “inhospitable
post-emergency environment” by providing breathable air, water, food and
communications. 73 Fed. Reg. at 80681. As for the specific requirement that
refuges be located within 1,000 feet of the working face, the preamble to the
final rule notes the “inability of miners on the working section to travel over
1,000 feet through smoke and debris to reach the refuge alternative, especially
if injured or exhausted.” Id . at 80684. The standard at issue is
intended to apply in the context of an emergency so severe as to make evacuation
impossible, survival outside the refuge unlikely, and travel extremely
difficult in the face of smoke, debris, and possible injury.

Accordingly, the S&S analysis under Mathies in an emergency
context must assume the existence of the emergency because the legislative or
regulatory process that developed the standard assumed those conditions would
be present at some point and directed that mines prepare for their occurrence. See
Cumberland Coal , 717 F.3d at 1027-28; Spartan Mining , 35 FMSHRC at
3508-09. The questions before the Judge in making his S&S determination were
whether, in the context of the type of emergency described above, and based on
the particular facts surrounding the violation, the additional distance sufficiently
contributed to a discrete safety hazard and whether that hazard was reasonably
likely to result in an injury of a reasonably serious nature. The Judge found
in the affirmative. [6]

Prior to applying the record facts in this case to the four-step Mathies
test, we note that we must use the substantial evidence standard of review to
evaluate the Judge’s factual findings underlying his S&S determination. “Substantial
evidence” means “‘such relevant evidence as a reasonable mind might accept as
adequate to support [the Judge’s] conclusion.’” Rochester & Pittsburgh
Coal Co. , 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison
Co. v. NLRB , 305 U.S. 197, 229 (1938)). Substantial evidence has been found
to be more than a scintilla, but less than preponderance. Dynamic Energy,
Inc. , 32 FMSHRC 1168, 1173 (Sept. 2010) (citing Richardson v. Perales ,
402 U.S. 389, 401 (1971)); Consolidated Edison , 305 U.S. at 2290 (the
substantial evidence standard was met where the record was not “wholly barren
of evidence” to sustain the Judge’s finding). [7]

The Judge properly considered this violation in the
context of the kind of emergency contemplated by the standard requiring the presence
of an emergency chamber. The Judge found that the violation contributed to a hazard
because the added distance would cause “additional and possibly critical delays”
in miners reaching the refuge chamber in the event of an emergency such as an
explosion, ignition or roof fall. [8]
37 FMSHRC at 25-26. He noted the mine’s history of methane and ignition
problems and the presence of ignition sources, and found that if an ignition or
explosion were to occur, miners could face injury, poor visibility, and
disorientation. Id. In other words, assuming an emergency significant
enough to require a refuge chamber —which, at this mine, would most likely be an
ignition or explosion resulting in disorientation, poor visibility and possible
injury — the additional distance made it less likely that miners would be able
to reach a place of safety. The Judge thus correctly identified the inability
to reach the refuge chamber in the event of an emergency as the relevant
hazard.

The standard at issue requires refuges within a
reachable distance of 1,000 feet “from the nearest working face.” [9] 30 C.F.R. §
75.1506(c)(1). Refuges are intended to increase the chance of survival during an
emergency. It is part of the undisputed record that the refuge was at least
1,110 feet from the working face, a full 11% over the allowable maximum. [10] The
farther a miner has to travel through smoke and injury, the less likely he or
she is to reach the refuge. 73 Fed. Reg. at 80681, 80684. Clearly, a violation
which interferes with a miner’s ability to timely reach a refuge poses a danger
of the type contemplated by the relevant standard. Cf. Small Mine
Development , 37 FMSHRC 1892, 1900-01 (Sept. 2015) (in the context of an emergency
that impedes passage, failure to install a refuge chamber “clearly contributes
to the hazards posed by miners not having a safe location to await rescue.”) [11]

It is of course impossible to predict the time,
location, nature or severity of a mine disaster. In exercising the authority
delegated by Congress in Section 315 of the Mine Act, the Secretary should be
presumed to have made a reasoned policy choice in establishing the requirements
for shelters, including their location. Thus, while a violation of the standard
is not S&S per se, and therefore an operator may rebut the Secretary’s
argument that a particular violation of this standard is S&S, the record in
this case supports the Judge’s determination and his application of Mathies.

We find it significant that when the regulation was
first proposed, as 30 C.F.R. § 75.1506(b)(1), it provided that refuge
alternatives shall be placed “between 1000 and 2000 feet from the working face
. . . .” 73 Fed. Reg. 34140, 34178 (June 2008). However, after extensive public
input, MSHA changed the location requirement in the final rule “based on
testimony and comments regarding the inability of miners on the working section
to travel over 1000 feet through smoke and debris to reach the refuge alternative,
especially if injured or exhausted.”  73 Fed. Reg. at 80684. If the additional
distance of 110 feet was insignificant, MSHA would not have changed the
location requirement in the final rule. [12]

Although our dissenting colleague rues the lack of record evidence on
points such as ceiling heights, the configuration of exit routes, and the
presence of beltlines outby the face, slip op. at 15, the record does support a
finding that this violation is at least somewhat likely —indeed, reasonably
likely — to contribute to the hazard of miners being unable to reach the
refuge. The Secretary’s evidence on this point consisted of the inspector’s
testimony. [13]
As a threshold matter, the inspector stated that, in determining whether to
designate the violative condition as S&S, he assumed the occurrence of a
mine disaster. He did so because refuge alternatives are only intended for use
in situations in which escape is impossible, such as roof falls, fires, or
explosions. He added that an additional 110 feet of travel is significant in
such situations, when visibility is poor and miners may be injured and
disoriented. 37 FMSHRC at 25. He noted that this is compounded by the fact that
this distance is in addition to the 1,000 feet that would have already been traveled
from the face, and agreed that every foot counts in an emergency. [14] Tr. 32-33.
The inspector also testified as to the mine’s specific history of methane and
ignition problems, and stated that in the event of a disaster, some miners
would likely be injured, unable to walk, unable to see clearly, and unable to
reach the refuge at that distance. [15]
Tr. 17, 31-32, 47, 54-55, 60; 73 Fed. Reg. at 80684. As the inspector bluntly
stated, 1,110 feet is “a long distance to travel if you are in smoke where you
can’t see . . . a long way to go if you are crawling or dragging an injured
guy.” Tr. 31-32.

This testimony constitutes substantial evidence supporting the Judge’s
conclusion that the added distance of 110 feet would cause “additional and possibly
critical delays” in miners reaching the refuge chamber in the event of an
emergency. [16]
37 FMSHRC at 25-26. Such delays establish the requisite “hazard” under step 2
of Mathies.

ICG points to Rushton Mining as an instance
where the Secretary failed to establish that a violation of an emergency
standard contributed to a hazard. 11 FMSHRC 1432 (Aug. 1989). However, the case
is clearly distinguishable. Rushton involved a violation of 30 C.F.R.

§ 75.1704-2(a), which requires that escapeways follow the safest direct
practical route. Affirming the Judge’s non-S&S determination, the
Commission found that not only had the Secretary failed to show that any
aspects of the cited route posed a hazard, but to the contrary, Rushton had
demonstrated that the cited route was particularly safe for travel. Id. at
1436-37. Here, there is no counter-evidence that the violation was, in fact,
non-hazardous.

As to the third and fourth Mathies steps, the
Judge concluded that serious or fatal injuries were likely to result for the 17
miners working on the section. 37 FMSHRC at 26. We find that, given the nature
of the hazard involved, substantial evidence supports the Judge’s finding. The
inspector testified that he designated the gravity as fatal because “if they
had blown up the section, to me it was unlikely that the guys would have been
able to get to . . . the refuge alternative.” Tr. 35-36. Assuming the
occurrence of a disaster, the disaster would be fatal “if [miners] couldn’t get
to the refuge alternative.” Tr. 54. In essence, the inspector’s testimony demonstrated
that in worst case scenarios (which at this mine could involve an explosion),
the inability to reach a refuge chamber in the event of such an emergency was reasonably
likely to result in serious or fatal injury. Since refuge chambers are meant to
ensure survival during an emergency which has created inhospitable conditions, then
common sense (as well as the history of coal mining disasters) dictates that an
inability to reach the refuge chamber threatens miners’ survival.

We have previously affirmed S&S findings for
violations of emergency standards based on similar evidence and reasoning. In Big
Ridge , which involved a lifeline violation, we found that the Judge
properly relied on the inspector’s testimony that it would be difficult to
cross a 20 foot gap in the lifeline during smoky conditions, and that during an
emergency miners become disoriented such that a directional lifeline is
essential to avert disaster. 36 FMSHRC 1115, 1119 (May 2014). The Commission
concluded that “[t]he hazard of a delayed escape or no escape at all due to a
missing lifeline in an emergency is reasonably likely to result in serious or
fatal injuries.” Id. ; see also Black Beauty , 36 FMSHRC at 1125.
Similarly, here, we find that the Judge properly relied on testimony to the
effect that it would be difficult to travel the additional distance to reach
the refuge in emergency conditions which create poor visibility and risk of
injury, and that reaching the refuge is essential to avert disaster. The hazard
of being unable to reach the refuge was reasonably likely to result in serious
or fatal injuries. Hence, the Secretary has proven the third and fourth steps
of Mathies.

ICG has expressed concern regarding the inspector’s
statement that he would consider any refuge located more than 1000 feet from
the face at this mine to be an S&S violation, even if it only exceeded the
maximum by one foot. Tr. 46-47. However, the violation before us here was not
trivial, and involves an 11% deviation from the allowable maximum distance in a
mine with excess methane and working equipment near the face, such that any
emergency requiring use of the refuge may well create poor visibility, injury
and disorientation. Under these circumstances, we find that substantial
evidence supports the Judge’s determination that this violation sufficiently
contributed to a hazard which was reasonably likely to result in serious
injury.

As a final matter, we are unpersuaded by ICG’s argument
that the presence of SCSRs was a mitigating factor. There were caches of SCSR
units within several hundred feet of the working face, all rated for an hour’s
use. Tr. 90-93. ICG claims they provided enough air for miners to travel the
extra 110 feet to the refuge alternative, reducing the likelihood of injury in
the event of an emergency. However, the Commission has repeatedly found that
redundant safety measures do not mitigate S&S findings for violations of
emergency standards. See Small Mine Development , 37 FMSHRC at 1900-01, citing
Cumberland Coal Res. , 33 FMSHRC at 2369, citing Buck Creek Coal, Inc. ,
52 F.3d at 136. In affirming Cumberland Coal , the D.C. Circuit explained
that “assuming the existence of an emergency in which a lifeline would be
necessary also assumes an emergency in which all of the redundant safety
measures . . . have failed.” 717 F.3d at 1028-29. Here, the same principle
applies. [17]

III.

Conclusion

For the foregoing reasons, we affirm the
Judge’s determination that the refuge alternative violation was S&S.

/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

Commissioner Althen, dissenting:

The decision in this case rests upon the testimony of one
mine inspector who was not an expert on mine emergencies and who did not
testify that he had any expertise in emergencies or, indeed, had any firsthand
experience in the real world or laboratory conditions with a mine emergency. That
inspector, in turn, did not testify to any conditions in the mine or specific
circumstances related to the mine that could cause a 110-foot violation of
section 75.1506(c)(1) to be significant and substantial (“S&S”). Instead,
the inspector based the citation on his personal, untrained, and
non-experiential belief that a refuge chamber located any distance
beyond 1,000 feet is S&S. The Secretary bears the burden of proof in every
case. One inspector’s personal, untrained, non-expert opinion in which he
testifies that one foot beyond 1,000 feet is automatically S&S, and does
not support his testimony with any evidence regarding the conditions at the
mine, does not carry the Secretary’s burden of proof. Therefore, I respectfully
dissent.

DISCUSSION

In cases involving an emergency standard, the Commission
assumes the occurrence of the emergency to evaluate whether a violation of an
emergency standard is S&S within the mining context of the specific
standard. Assuming the occurrence of an emergency does not mean assuming that
the hazard at which the standard is directed is reasonably likely to occur or
that a violation is automatically S&S. See Cumberland Coal Res.,
LP , 33 FMSHRC 2357, 2367, 2369 (Oct. 2011), aff’d , 717 F.3d 1020 (D.C.
Cir. 2013). Judges must make the S&S determination through application of
the steps identified in the Commission’s recent decision in Newtown Energy,
Inc. , 38 FMSHRC __, slip op. at 4-8, No. WEVA 2011-283 (Aug. 29, 2016).

Newtown
effectively revises the four steps set forth in Mathies Coal Co. , 6
FMSHRC 1 (Jan. 1984), to identify more precisely each of the four steps
involved in making an S&S determination originally set forth in Mathies .
Under the Commission’s newly formulated Newtown test, the four steps of
the S&S analysis require determinations of whether:

(1)    there has been
a violation of a mandatory safety standard;

(2)    based upon the
particular facts surrounding the violation, there exists a reasonable
likelihood of the occurrence of the hazard against which the mandatory safety
standard is directed;

(3)    based upon the
particular facts surrounding the violation, the occurrence of that hazard would
be reasonably likely to result in an injury; and

(4)   
any resultant injury would be reasonably likely to be reasonably
serious.

See Newtown , slip op. at 4-8. [18]

Section 75.1506(c)(1) addresses the danger that, in an
emergency, a miner might not be able to use escapeways to exit the mine quickly
and safely. The section, therefore, aims at providing the miner a place of
refuge until the miner is able to exit the mine safely. Thus, the hazard
addressed by section 75.1506(c)(1) is that a miner could not reach a refuge
chamber in case of an emergency.

Here, the operator did not contest the fact of a violation.
Consequently, we move directly to the second step of the Newtown test,
in which we determine whether, under the particular facts surrounding the
violation, the Secretary proved by a preponderance of the evidence that the
violation made it reasonably likely that in the event of an emergency a miner
could not reach the refuge chamber. It is at this step that the Secretary’s
case and the majority’s analysis falter.

The
inspector testified that the mine was subject to section 103(i) of the Mine Act,
which requires spot inspections of the subject mine based upon its liberation
of methane. Tr. 16. Obviously, the conditions likely to result from the occurrence
of an emergency are relevant to the S&S determination. An analysis of those
conditions includes, most importantly, the particular context of the mine and
the numerous possible emergencies that may occur at that particular mine. [19] However,
the possibility of the occurrence of an emergency itself does not bear upon the
likelihood of reaching a refuge if an emergency does occur. As my colleagues
correctly state, “assuming the existence of an emergency is not the same as
assuming the violation is S&S.” Slip op. at 4.

My
colleagues and I agree that S&S determinations must be based on the
particular circumstances involved in the specific violation. Id. The
entire Commission, therefore, accepts that the inspector must take into account
the particular circumstances at the mine and explain those circumstances in his
testimony. Such violations are not per se S&S. Elsewise, the inspector’s
insensible opinion in this case that 1 foot beyond 1,000 feet is “probably”—that
is, presumptively—S&S would become sensible. Tr. 47. [20]

The Secretary did not qualify the inspector as an expert in
mine emergencies. Although the inspector had many years of work in mines as an
hourly employee, the inspector did not demonstrate or claim to have any
experience in real or simulated mine emergencies or to have ever had any
instruction, training, or expertise in emergencies. The Secretary does not
contend that the inspector had any expertise in mine emergencies. His
experience was as an hourly employee operating mining equipment and a few years
as a mine inspector. [21]

There is
no evidence the inspector encountered an emergency during his mining career. In
fact, this is the only time he issued a citation related to the location of a
refuge chamber. Tr. 45. Additionally, he did not identify any education,
training, or experience in emergencies. His opinion, therefore, does not
constitute, and was not offered as, an expert opinion on the location of refuge
chambers. [22]

This brings us to
the nub of this case. Evidence must prove that, in an emergency, miners would
not be reasonably likely to be able to reach the refuge chamber. Notwithstanding
the majority’s conjured 11% fiction, see supra note 3, that proposition
cannot be assumed. There is no reasonable argument that a 110-foot overage is
automatically or presumptively S&S. Indeed, governing and leading
authorities such as MSHA’s regulations, state laws, the rulemaking record for
section 75.1506(c)(1), and opinions of National Institute of Occupational
Safety and Health (“NIOSH”) and expert studies permit and/or suggest placement
of refuge chambers at distances further than 1,110 feet from the face. Other
MSHA mandatory safety standards and state laws permit placement of refuges
substantially beyond 1,110 feet, and respected government experts recommended
placement of refuges at distances exceeding 1,110 feet.

For example, 30
C.F.R. § 57.11050(b) requires that refuge chambers in metal/non-metal mines
must be within 30 minutes of the working place rather than within a prescribed
distance requirement. Such a time requirement permits in underground metal and
nonmetal mines placement of refuge chambers more than 1,110 feet from the face.
Section 11.09 of Illinois’ Coal Mining Act requires chambers within 3,000 feet
of each working section of a mine—three times further than the federal
regulation. 225 Ill. Comp. Stat. Ann. 705/11.09. The Illinois statute does not
undercut the validity of the federal regulation, but it destroys an arbitrary
notion that a distance of 110 feet (or 11%) over 1,000 feet is S&S without
more facts.

Going further, in a
report summarizing research required under section 13 of the Mine Improvement
and New Emergency Response (“Miner”) Act of 2006, Pub. L. No. 109-236, NIOSH
stated,

[T]he maximum distance from a working section to the refuge
chamber or in-place shelter should be based on projected travel time rather
than actual travel distance. Unless there is a compelling reason otherwise, the
refuge alternative should be located within approximately 30–60 minutes from
the face under the expected travel conditions, assuming smoke-filled entries
and a directional lifeline.

Office of Mine Safety and
Health, Dep’t of Health and Human Servs., Research Report on Refuge
Alternatives for Underground Coal Mines 8 (2007) (emphasis added) (footnote
omitted); see also Nat’l Inst. for Occupational Safety and Health,
Comment on Proposed Rule on Refuge Alternatives for Underground Coal Mines (Aug. 18, 2008).

In
addition , NIOSH contracted with Foster-Miller, Inc. to perform a comprehensive study of refuge chambers in connection with
NIOSH’s comments on proposed section 75.1506(b). The contract included
an exhaustive review of 42 mine disasters. The study concluded that either
there should be two refuge chambers at nominal distances of 1,000 and 2,000
feet from the face (the chamber locations would range from placement at 500 and
1,500 feet to 1,500 and 2,500 feet), or, if only one chamber was required, it
should be 1,500 feet from the face—that is, 390 feet farther than 1,110. Refuge
Chamber Report vol. 1, 80, 153. [23]

The majority
incorrectly asserts that the foregoing discussion constitutes a “re-weighing of
the rulemaking record.” Slip op. at 7 n.12. Rather than reweighing the
rulemaking record, the cited authoritative federal regulations, state laws,
NIOSH comments, and expert reports, much of it from the rulemaking record
itself, support my agreement with the majority that an excess distance of 110
feet is not a per se violation. Absent an understanding of the clear
public record and scientific evidence upon which MSHA, state agencies, and
expert authorities accept and/or recommend distances far in excess of 1,110 feet,
one might be lulled into the inspector’s per se analysis—namely, that 1,001
feet is S&S. The cited rules, statutes, and expert opinions demonstrate
that, as the majority agrees, the distance of 1,110 feet is not automatically
S&S and that such a finding requires evidence of the particular facts in
the specific mine. Therefore, we now turn to the absence of any evidence about
the conditions in this mine.

The ultimate
question for review is whether a non-expert opinion given by one ordinary inspector
who opined that one foot too far is S&S and who did not testify to any
particular circumstances at the mine, standing alone, is sufficient to carry
the Secretary’s burden of proof. The majority concedes that the non-expert,
predetermined opinion of the inspector is the sole reason for their affirmance
of the S&S designation. Slip op. at 7-8. I find that opinion insufficient. [24]

The inspector
provided no testimony relevant to the circumstances at this specific mine. Equally
importantly, the inspector implicitly, but clearly, based the S&S finding
upon his personal belief that any distance beyond 1,000 feet is an S&S
violation. Stated simply, for the inspector, any distance beyond 1,000 feet was
a per se S&S violation—a position that does not apply the correct standard
and that the entire Commission rejects.

The inspector did not testify generally or specifically
about operating conditions or operations in the mine before or at the time of
his inspection. He did not testify about seam or ceiling heights; floor, rib,
or roof conditions; ventilation; any mining being conducted during the
relatively brief period of the violation; the straightness of exit routes; any
operations outby the 1,000-foot mark; any beltlines, belt transfer points,
power stations, etc., outby the face; or any other facts. He did not identify
any locations other than the face at which an explosion, fire, or other
emergency might occur or, given the composition of the mine, the conditions
that would be reasonably likely to exist in the event of emergencies at varying
locations. [25]
In light of the absolute absence of testimony about the conditions of the mine,
likely places for emergencies,  or any other particular facts, it simply cannot
be said the inspector’s opinion demonstrated consideration of the
circumstances. Without any evidence related to the conditions in the mine, the
inspector’s bare opinion underlain by a misunderstanding of the law does not
carry the burden of proof.

Essentially, the inspector adopted a per se or presumptive
S&S approach and, therefore, applied the wrong standard in issuing an
S&S citation. There is no issue of credibility related to the inspector’s
testimony. Reading the transcript, no one can doubt that the inspector’s honest
and actual reason for citing the violation as S&S without any testimony
regarding operating conditions in the mine was his personal belief that any
distance beyond 1,000 feet is S&S. Consequently, the basis for the S&S
citation is a personal belief of the inspector that any excess distance, of any
dimension, is a per se S&S violation—a position the majority finds legally
unacceptable.

As the majority points out, the Judge did seize upon one
phrase—“at this mine”—in the inspector’s testimony. Slip op. at 2. However, in
that passage, it is clear that the reference to “at this mine” was based upon
the release of methane in the mine. [26]
Therefore, the reference to “at this mine” is a reference to the mine’s release
of methane and not to the likelihood of reaching a refuge chamber.

Below, I discuss particular parts of the testimony in order
to demonstrate the inspector’s per se analysis. Reading the transcript, no one
can misunderstand the inspector’s frank testimony that it was his personal
belief that this was a per se violation—that is, any distance beyond 1,000 feet
is S&S. The inspector testified that he disagreed with the substance of the
regulation, opining that the regulatory standard of 1,000 feet is too far from
the face:

Q.  Okay. You think 1,000 feet is too far, correct?

A.  I do, yes.

Tr. 47.

The inspector testified that he would have cited the
violation as S&S if the refuge chamber were 1 foot beyond 1,000 feet:

Q.  You would have considered this S and S if it had been 20
feet too far, wouldn’t you?

A.  Yes.

Q.  Or ten feet?

A.  Yes.

Q.  Or one foot?

A.  Yes.

Tr. 46-47.

Nowhere does the inspector base his opinion upon the
particular conditions in this specific mine should an emergency occur. As noted
above, and not disputed by my colleagues, the inspector did not provide any
evidence about specific conditions in this mine or any conditions causing one
foot to be “too far.” In the absence of any testimony about the conditions
actually present in the mine, a stray comment about the citation being “at this
mine” does not provide any factual support for the S&S designation. Indeed,
the inspector demonstrates that he did not believe it necessary to take the
particular facts at the mine into account in issuing the citation as S&S. He
testified:

Q.  Okay. And that has nothing to do with the actual conditions
in this mine, it is just your opinion that a violation of this standard is
significant and substantial, correct?

A.  In this case.

Q.  Okay. You think 1,000 feet is too far, correct?

A.  I do, yes.

Q.  Okay. So in this case or any other case , sir, you
would consider it to be S and S, wouldn’t you?

A. If it exceeded 1,000 feet, probably .

Tr. 47 (emphasis added).

The “probably” is without any explanation and is at odds
with his testimony that 1 foot over the 1,000 feet is S&S and that the baseline
standard of 1,000 feet is too far. This honest inspector testified that he
marked the citation S&S because the refuge chamber was more than 1,000 feet
from the face without any evidence that he considered any particular factor at
the mine at the time of violation.

Here, other than stating his personal, non-expert view that
1,000 feet is “too far” so any foot beyond 1,000 feet is S&S, the inspector
did not support the citation with any testimony about the specific conditions
at this mine. The inspector frankly testified that the only fact he considered
at this mine was that the mine was on a 10-day spot inspection for methane, Tr.
47, which the majority correctly notes is irrelevant to the S&S analysis
for this violation. Slip op. at 4. [27]

Based upon the inspector’s failure to discuss specific
conditions at this mine, his failure to differentiate between this mine and any
other mine, and his stated disagreement with the standard as promulgated, the
inspector’s testimony does not constitute substantial evidence to support a
reasonable likelihood that a miner could not reach the refuge. Because the
inspector’s lay testimony is the only evidence submitted by the Secretary,
substantial evidence does not support the Judge’s finding. [28]

CONCLUSION

T he Commission must
base its decisions upon the objective application of the proper legal standard
to the case before us rather than applying our own non-expert preferences
and/or fears or the predetermined judgment of one non-expert inspector. If the
Secretary had provided evidence of conditions in the cited mine sufficient to
support a reasonable likelihood that miners at this mine would not have been
able to reach the refuge chamber in an emergency during the period of the
violation, I would readily concur with my colleagues. [29]  

Here, however, the entire “proof” offered by the Secretary
is the opinion of one witness who (1) was not offered as an expert on
emergencies, (2) did not testify about any of the conditions or operations in
the mine that might come into play during an emergency or where emergencies
might occur other than the face, (3) disagreed with and disavowed the mandatory
standard, and (4) opined he would find a one-foot violation to be S&S. The
unsupported, non-specific, predetermined testimony of one non-expert does not
carry the Secretary’s burden of proof.

I respectfully dissent. [30]           

/s/
William I. Althen

William
I. Althen, Commissioner      

[1] 30 C.F.R. §
75.1506(c)(1) provides in relevant part that “[r]efuge alternatives shall be
provided . . . within 1,000 feet from the nearest working face.” Refuge
alternatives, also called refuge chambers, are “[p]refabricated self-contained
units” with “structural, breathable air, air monitoring, and harmful gas
removal components.” 30 C.F.R. § 75.1506(a)(1).

[2] The S&S
terminology is taken from section 104(d)(1) 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)(1).

[3] Inspector
Baum began working for MSHA in 2007. Prior to this, he had thirty years of
experience in underground mines, during which time he ran nearly all types of
equipment and conducted examinations. 37 FMSHRC at 23 n.2; Tr. 15-16.

[4] Pursuant to
section 103(i) of the Act, any mine that liberates more than 500,000 cubic feet
of methane during a 24-hour period is required to have an MSHA inspector
inspect the mine “every 10 working days at irregular intervals.” 30 U.S.C. §
813(i).

[5] Chairman Jordan
and Commissioner Cohen would hold that a violation sufficiently “contributes”
if it is at least somewhat likely to result in, or could result in, a safety
hazard. Newtown , slip op. at 20 (Jordan and Cohen, concurring and
dissenting in part), citing Knox Creek , 811 F.3d at 162, 163 (the
Secretary establishes a “contribution” for the purposes of the second step of Mathies
when he shows that the violation is “at least somewhat likely to result in harm”);
see also 30 U.S.C. § 814(d)(1) (“such violation is of such nature as could
significantly and substantially contribute to the cause and effect of a . . .
safety or health hazard”) (emphasis added). They conclude that the outcome of
this case is the same under either standard.

[6] ICG only
explicitly challenges the Judge’s findings as to the likelihood and severity of
injury. However, because ICG’s arguments generally address whether the additional
distance (the violation) created a danger, we find it appropriate to
address the second step of the Mathies analysis as well.

[7] As we discuss
the separate opinion of our dissenting colleague, we are mindful of the D.C.
Circuit’s apt characterization of our substantial evidence standard as a
“sensibly deferential standard of review” that respects the reasonable
conclusions of the trier of fact. Keystone Coal Mining Corp. , 151 F.3d
1096, 1105 (D.C. Cir. 1998).

[8]
The Judge stated that the violation “contributes to the possibility” that miners
would be incapable of accessing the refuge. 37 FMSHRC at 25. ICG claims that the
Judge misapplied Mathies by focusing on mere possibilities. However, the
choice of language is harmless here. As discussed below, the record indicates
that under these particular facts, the violation clearly contributed to the hazard.

[9] Our dissenting
colleague faults us for assuming an emergency at the face when analyzing this
violation’s contribution to the hazard at issue. Slip op. at 12 n. 2. Likewise,
he faults the inspector for assuming an emergency at the face, stating, “[s]uch
tunnel vision betrays a lack of expertise.” Slip op. at 16 n.8. However, while
it is true that emergencies may arise outby the face, our colleague ignores the
fact—understood by the inspector—that the cited regulation sets forth the
maximum distance the refuge shelter can be from the face. As noted
above, the “hazard” for purposes of the Mathies analysis is the danger
which the cited safety standard is intended to prevent. The hazard contemplated
by 30 C.F.R. § 75.1506(c)(1) is an emergency at the face.

[10] While the
dissent characterizes our notation of the 11% variance as “conjured fiction,”
slip op. at 13, it is simple mathematics applied to the facts of record and the
language of section 75.1506(c)(1).

[11]
Small Mine Development is currently on appeal in the D.C. Circuit. Small
Mine Development v. FMSHRC , No. 15-1391 (D.C. Cir. Oct. 27, 2015). Commissioner
Young dissented and believes the case was wrongly decided. While he therefore
disagrees with the use of Small Mine Development as an illustration of
the premise stated here, he does not disagree with the premise, which in fact
seems somewhat tautological.

[12] Our dissenting
colleague devotes many paragraphs to discussing comments in the rulemaking
record which allegedly detract from MSHA’s conclusion that the refuge shelter
may be positioned no more than 1000 feet from the nearest working face. Slip
op. at 14-15. This attempted re-weighing of the rulemaking record might have
been appropriate in the context of litigation challenging the legitimacy of
MSHA’s final rule, but it is irrelevant to this case.

[13] The
testimony and judgment of the inspector routinely play a significant role in
S&S determinations. Harlan Cumberland Coal Co. , 20 FMSHRC 1275, 1278
(Dec. 1998); Cumberland Coal , 33 FMSHRC at 2365. While our dissenting
colleague alleges that we “concede” that the inspector’s opinion “is the sole
reason for [our] affirmance of the S&S designation,” slip op. at 15, this
is something of an overstatement. Our reliance is on the entire record. The
inspector’s testimony explained the significance of the facts of record and
explained his S&S finding in the context of all of those facts. The Judge
found the testimony credible and compelling, and we find no grounds for
overturning his determination.

[14] In this
context, the inspector noted that while the refuge chamber was located 1,100
feet from the nearest working face, miners working at the other side of
the section would be almost 2,000 feet from the refuge chamber. Tr. 32.

[15] ICG notes
a lack of documentation regarding a history of methane and ignition problems at
the mine. However, the Judge credited the inspector’s testimony that the mine
did, in fact, have a history of methane and ignition problems. 37 FMSHRC at 26.
It is undisputed that the mine was subject to spot inspections for excess
methane liberation.

[16] Our dissenting
colleague alleges that the “majority does not discuss any distance between 1
foot and 110 feet at which the distance becomes S&S. That failure is
significant.” Slip op. at 13 n. 3. However, we need not speculate as to what intermediate
distance may or may not be S&S. Our decision is constrained by the facts of
record, which have established that the shelter was at least 110 feet further
than the standard permits from the nearest working face. We reiterate that
whether a particular violation is S&S must be determined on a case-by-case
basis, considering the particular facts and circumstances established in the
record.

[17] While the
dissent criticizes our reliance on Buck Creek and subsequent cases post- Newtown ,
slip op. at 19 n.13, our decision does not rest solely on the law, but also on
the facts found by the Judge. As we’ve noted, slip op. at 3, citing 37
FMSHRC at 26, the Judge accepted the inspector’s testimony about the limits of
the SCSRs, which were not responsive to all of the hazards that would attend
the contemplated emergency.

[18]
Thankfully, Newtown ends any confusion over whether we assume the
occurrence of a hazard at step two. We do not. The Secretary must prove the
likelihood of such an occurrence to the requisite degree of reasonable
likelihood. As a result, the long ignored step two factor is now critical in
every S&S analysis. The recently articulated Newtown test is the
metric through which Administrative Law Judges must make step two
determinations.

[19]
The majority appears to analyze the case from a supposition that the only
emergency that could occur at this mine is a face explosion. Therefore, it
assumes a miner facing an emergency would have to travel an “extra” 110 feet to
reach the shelter. Of course, emergencies may arise from many locations other
than the face. Indeed, a specialized research study conducted for the National
Institute of Occupational Safety and Health (“NIOSH”) in connection with
NIOSH’s comments on the proposed section 75.1506(b) regulation found that the
placement of the refuge is important to many different scenarios. Foster-Miller,
Inc., Report  No. NSH-080020-1864, Refuge Alternatives in Underground Coal
Mines , vols. 1, 2 (2008) (“Refuge Chamber Report”). For example, the Darby
mine explosion was outby the face and NIOSH’s contract researcher found that,
at Darby, it would have been preferable for the refuge chamber to have been
located 2,000 feet from the face. Id. vol. 2, at 92. In emergencies,
therefore, a refuge at 1,110 feet from the face actually may be 110 feet closer
to the miners. The point here is that non-experts, such as the inspector in
this case, have little understanding of the placement of a refuge chamber or
the various emergencies that might occur at a given mine, so specific testimony
about the actual mining conditions is critical to judicial analysis. Indeed,
even this inspector recognized that, tragically but typically, a face explosion
fatally injures all miners at the face immediately. Tr. 35-36.

[20] The
majority does not discuss any distance between 1 foot and 110 feet at which the
distance becomes S&S. That failure is significant; it further demonstrates
acceptance that the Commission must evaluate the particular facts at the
specific mine. Indeed, the majority does not cite any fact about this
“particular mine.” It finds the violation is not “per se” S&S, but then
invents completely out of whole cloth a notion that an eleven percent (11%)
overage is S&S. It does this even though, as we will see, safety
authorities recommended that if MSHA adopted a requirement for only one refuge
near the face, the distance should be 1,500 feet—that is, fifty percent (50%)
beyond 1,000 feet. The majority does not provide any basis for 11%. How about
10.9%? Or 11.1%? Or 5%, 10%, or 15%, or the more than 50% an expert study
recommended? See infra p. 14. Nonetheless, the majority explains the use
of 11% as “simple” mathematics. Slip op. at 6 n.10. “Arbitrary” (random choice
or personal whim) and “capricious” (given to unaccountable changes) seem far
more descriptive.

[21] The fact
that the inspector worked for many years running equipment such as a roof
bolter or mining machine and then became a federal mine inspector speaks very
well for him as an individual. Obviously, it does not qualify him as an expert
regarding the placement of refuge chambers.

[22] While
inspectors need not be experts to testify knowledgeably, this inspector’s lack
of expertise, experience, and training regarding the placement of refuge
chambers necessarily detracts from the persuasive weight of his testimony.

[23]
The majority asserts that MSHA changed the proposed rule to 1,000 feet “after
extensive public input.” Slip op. at 7. In fact, MSHA received 39 comments. Of
those, only three commenters suggested a 1,000-foot minimum: the United Mine
Workers of America (“UMWA”), the West
Virginia Office of Miners’ Health, Safety & Training (“WVOMHST”),
and Senator Robert Byrd who simply submitted, but with his enormous political
influence, the WVOMHST comment. The UMWA’s most specific comment identified the
Darby mine explosion as exemplifying the difficulty of moving through smoke and
debris. As noted elsewhere, the Darby explosion was outby the face. At Darby, a refuge chamber at 2,000 feet would have
been preferred. This does not undercut the validity of the final rule
promulgated by the agency. However, it does show that the extra 110 feet at
issue in this case cannot be presumptively a significant and substantial
violation as in the specific explosion cited by the UMWA, 2,000 feet from the
face would have been a preferable location.

[24] The
majority states that I “rue”—that is, regret or am concerned about—“the lack of
record evidence on points such as ceiling heights, the configuration of exit
routes, and the presence of beltlines outby the face.” Slip op. at 7. They are
correct. I think the lack of any evidence about the particular facts of the
mine to support an S&S citation is a problem, a very big problem. Indeed,
the absence of evidence is an insurmountable problem.

[25] In light
of the inspector’s reference to methane, it appears his concern for even an
extra one foot of distance springs from a concern about miners located at the
face if an explosion occurs. Of course, emergencies may arise from many
locations other than the face. See supra note 2. Such tunnel
vision betrays a lack of expertise. Non-experts may view face explosions as the
only concern with respect to placement of refuge chambers, but face explosions
are far from the only consideration in the location of refuge chambers. In
refusing to recognize that fact, slip op. at 6 n.9, the majority chooses to
ignore tragedies where miners retreated and a reachable refuge would have saved
lives.

[26] The
passage is:

Q.  Okay. So in this case or any other case, sir, you would consider
it to be S and S, wouldn’t you?

A. If it exceeded 1,000 feet, probably.

Q. Okay.

A. At this mine. I mean, this mine has a history of methane. They
have got a history of ignitions. They have had withdrawal orders issued, 107(a)
issued for excess of methane. So this mine has a history.

Tr. 47. Separately, after
stating his disagreement with the 1,000-foot standard, the inspector does say that
“[e]verything was considered on this violation, not just the distance.” Tr. 48.
Immediately thereafter, however, he states such considerations were “not just
this mine,” thereby reinforcing his testimony that he considered any distance
over 1,000 feet to be a generic S&S violation and “not just at this mine.” Id.

[27] Near the
end of their opinion, the majority emphasizes, “[w]e reiterate that whether a
particular violation is S&S must be determined on a case-by-case basis,
considering the particular facts and circumstances established in the record.” Slip
op. at 8 n.16. I agree. Particular facts must be taken into account. Here, the
only fact in the record is a non-per se distance of 110 feet, but the majority
upholds a finding that the violation is S&S. The majority’s opinion is
cognitively dissonant—they juxtapose a repeated emphasis on a need for
particular facts with a finding made without particular facts.

[28] The
majority attempts to distinguish this case from Rushton Mining Co. ,
11 FMSHRC 1432 (Aug. 1989), by asserting that “[h]ere, there is no counter-evidence
that the violation was, in fact, non-hazardous.” Slip op. at 8.  In Rushton
Mining , the Commission concluded, “the Secretary has failed to show that
the distance, travel time, or any inherent qualities of the cited route posed a
discrete safety hazard.”
11 FMSHRC at 1436. It is not the operator’s duty to rebut the Secretary
case when the Secretary’s case fails in the first instance. The majority must
not actually intend to relieve the Secretary of the burden of proving
violations are S&S. Even hinting at such a notion, however, imperils a most
basic principle upon which due process depends.

[29] I do not
find any magic line above 1,000 feet at which the distance either is or is not
S&S. I would support a finding that a violation of section 75.1506(b) by
any distance is S&S if substantial evidence supported such a finding.

[30] As a final
point, I disagree with my colleagues’ assertion that judges may not consider
safety measures specifically designed to prevent the occurrence of a hazard in
evaluating the likelihood of the occurrence of that hazard. See slip op.
at 9. At step two, the issue is the likelihood of the occurrence of the hazard
based upon the particular facts surrounding the violation. At step two,
preventative measures may make the occurrence of a hazard less than reasonably
likely. Preventative measures may not be dispositive, but we should consider
all factors that affect the likelihood of the occurrence of the hazard. Cases
cited by the majority relate to step three of the Newtown analysis, at which
point the Secretary has established the reasonable likelihood of the occurrence
of the hazard. The existence of extraneous factors that militate against the
occurrence of the hazard at which the standard is directed, for example, water
drenched coal accumulations or technical innovations designed to prevent a
hazard, are relevant to the likelihood that the hazard will occur.