Secretary of Labor v. Knight Hawk Coal, LLC

Plain-English summary

A continuous mining machine operator at Knight Hawk's Prairie Eagle South Mine in Illinois was fatally crushed in February 2013 after entering the machine's red zone, the pinch point area where the equipment can strike a miner. MSHA cited the company for violating its approved roof control plan, which barred anyone from the red zone during tramming or repositioning, and called the violation significant and substantial, high negligence, and an unwarrantable failure. Knight Hawk conceded the violation but contested the negligence and unwarrantable failure findings and the $70,000 penalty. Its main argument was that its own safety program used "red zone" more broadly than MSHA does, covering pinch points around all mobile equipment, so miner statements about seeing red zone breaches did not necessarily concern continuous miners. The Commission rejected that, noting the interviews followed a continuous miner fatality and that the confusion came from the company's own choice of terminology, which it never flagged to investigators. The decisive fact was enforcement: a foreman had personally seen this miner in danger zones five times and never went beyond verbal counseling or reported it up, and no miner had ever been disciplined under the red zone policy. The Commission held that a safety policy stricter than the standard but left unenforced can teach miners the rule does not matter, and it affirmed the findings and the $70,000 penalty. It did correct one point, holding that MSHA's general industry-wide publications cannot supply the operator-specific notice that greater compliance efforts were needed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.220(a)(1) (roof control plan)
• Outcome: The ALJ's decision was affirmed in full, including high negligence, unwarrantable failure, and the $70,000 penalty.
• Key point: Adopting a safety policy broader than the regulation earns no credit when the operator never enforces it, and generic MSHA publications do not put a particular mine on notice that greater efforts are required.

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 Nos.    LAKE 2014-121-R

v.                                              
 :                                            LAKE 2014- 575

:           

KNIGHT HAWK COAL, LLC                        :

Before: Jordan,
Chairman; Young, Cohen, and Althen, Commissioners [1]

DECISION

BY
THE COMMISSION:                                                                                         

This consolidated
contest and civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or
“Act”), involves the death of a coal miner who was crushed while operating
mining equipment. Knight Hawk Coal, LLC (“Knight Hawk”) was charged with
failing to keep the miner out of the “red zone” surrounding the continuous
mining machine, which constituted a violation of the mine’s approved roof
control plan under 30 C.F.R. 75.220(a)(1). [2] The
Administrative Law Judge ruled that this violation was the result of Knight
Hawk’s high
negligence and unwarrantable failure to comply. [3]
37 FMSHRC 632 (Mar. 2015) (ALJ). Knight Hawk appealed this decision and also challenged
the Judge’s penalty determination.

For
the reasons discussed below, we affirm the Judge’s decision.

I.

Factual and Procedural Background

A.     Facts

Knight Hawk operates the Prairie Eagle
South Mine, a
large underground coal mine in Illinois. On February 13, 2013, Miner Timothy
Chamness was remotely operating a continuous mining machine when he entered the
red zone of the machine and was fatally crushed between the continuous miner’s
conveyor tail and the right rib of the entry. [4] There were no
witnesses to the accident. 37 FMSHRC at 633. Chamness, a former roof bolter,
had been a continuous miner operator for four months at the time of the
accident. Tr.
166, 168, 187.

In November
2013, MSHA issued its investigation report on the accident and cited Knight
Hawk for violating
its approved
roof control plan by failing to keep Chamness out of the red zone of the
continuous miner. [5] The inspector
designated the violation as “significant and substantial” (“S&S”), [6] involving high
negligence, and the result of the Knight Hawk’s unwarrantable failure. MSHA
proposed a specially-assessed civil penalty of $70,000. S. Ex. 1; 37 FMSHRC at
633.

Knight
Hawk construed the term red zone as used at its Prairie Eagle South Mine more
broadly than MSHA’s regulatory use of the term. Knight Hawk defined red zone to
include a danger zone or pinch point area around all mobile equipment, whereas
MSHA’s definition of red zone is confined to the danger zone around a
continuous mining machine. [7] Prior to the
issuance of the citation, MSHA was not informed that its definition of red
zone, as used in Knight Hawk’s roof control plan and as enforced under the Act,
was different and narrower than the definition used for training and warning
posters at the mine. The differences in these definitions constitute the central
underpinnings of the dispute between the parties in this case.

In
the course of the accident investigation, MSHA interviewed 10 miners. Five
rank-and-file miners stated that they had seen employees in the “red zone”
before, even though they had been trained to stay out of the red zone. Tr.
52-53. Knight Hawk Foreman Richard Pasquino, Chamness’ immediate supervisor, stated
that he had also seen miners in the “red zone” of various mobile machines and
that he himself had breached the red zone before with a ram car and with a roof
bolter. Tr. 193-94. The miners described the red zone encounters as sporadic,
intermittent, and inadvertent. [8]

Pasquino
said that before becoming Chamness’ supervisor, he had observed Chamness in
what Pasquino called the red zones of a shuttle car, ramcar/scoop, and a
roofbolter on three separate occasions. After becoming foreman, Pasquino
observed Chamness in the red zone on two
more occasions, first around a ramcar, and then around a roof bolter five
months later. Pasquino testified that, after he became a foreman, he verbally
counseled Chamness on the importance of staying out of the red zone in the two
latter instances he observed but did not report any of the five incidents to
higher management. Pasquino testified that he never observed Chamness in the
red zone of a continuous miner. Tr. 196-98, 207-10; 37 FMSHRC at 636.  

Knight Hawk
witnesses testified that the company had a progressive disciplinary policy in
place that began with verbal counseling and allowed for more severe
consequences for repeat violators . According to this safety policy,
unsafe practices or deviations from company safety standards were to be reported
to the immediate supervisor, who would then report them to the safety director. [9] However, Knight Hawk had only
twice disciplined miners for actions related to the company’s red zone policy. [10] Tr. 157-58; 252. In addition, Mine
Superintendent Dale Winters confirmed that no violations of the mine’s broader red
zone policy were ever reported to mine management. Tr. 140-41, 205; 37 FMSHRC
at 635.

Knight
Hawk provided training on red zone safety involving mobile equipment during new
miner training, experienced miner training, annual refresher training, and
during weekly safety talks. The operator had conducted annual refresher
training covering red zone dangers four days before the fatal accident. Knight
Hawk also hung “Keep
Out of the Red Zone” posters
in several areas of the mine cautioning miners to avoid red zones around mobile
equipment.   37
FMSHRC at 635, 642.

After
Chamness was killed, Knight Hawk modified the remote control box for the
continuous miner to add a second function to prevent the miner from
accidentally activating the tail swing. It also installed proximity devices on
all nine of its continuous miners, at a cost of $80,000 per machine. O f the 36
violations issued to the operator in the 15 months prior to the incident, only
two were S&S violations. The record reveals no specific evidence that Knight Hawk was ever warned
by MSHA that its efforts to deter red zone violations at the Prairie Eagle South
Mine were inadequate.

Knight Hawk
filed a notice of contest challenging the Secretary’s high negligence finding,
as well as the unwarrantable failure designation and the proposed penalty
amount. It stipulated to the fact of the violation and that it was S&S. The parties also
stipulated to the operator’s good faith and timely abatement. On March 18,
2015, the Judge issued a decision upholding the Secretary’s high negligence and
unwarrantable failure determinations, and assessing a penalty of $70,000.

B.      The Judge’s
Decision

In affirming the high negligence
determination, the Judge found it compelling that Pasquino had observed
Chamness in the red zone of mobile equipment on multiple occasions, but had only
verbally counseled him. Discounting the testimony of Mine Superintendent Winters
and Pasquino, who stated that they had no reason to believe Chamness would
enter the red zone, she concluded that Chamness’ conduct was foreseeable.

The Judge found that Knight Hawk’s
practice of counseling employees for repeated red zone violations was
inadequate and that the operator should have taken “more definitive action to
prevent miners from repeatedly entering the red zone, as defined by the mine
operator or by MSHA.” She concluded that the mine imposed no consequences on
miners when they violated the mine’s red zone policy. She also found no
evidence that Knight Hawk had established any specific policies or procedures
for addressing red zone breaches or disciplinary approaches designed to
discourage repeat violations. 37 FMSHRC at 637-38.

The Judge
rejected Knight Hawk’s assertion that the interviewed miners’ statements about
red zone violations were of minimal value because they were speaking of the red
zone as broadly applied by Knight Hawk and did not understand that MSHA was
referring only to the zone around the continuous miner. Based on the context in
which the miners’ statements were made and the training materials and posters,
the Judge found that most, if not all, of the miners’ statements to MSHA referred
to the red zone of a continuous miner. In addition, because the miners’
statements indicated that red zone policy v iolations were not uncommon at the mine,
the Judge inferred that at least a portion of the reported violations occurred
in the red zone of a continuous miner. Nonetheless, she stated that her
findings would be the same under either usage of the term “red zone.” Id .

The Judge found
that although Knight Hawk provided some training on red zone dangers, the
failure to enforce its own policies by disciplining errant miners rendered the
training and supervision of those miners meaningless. She concluded that “the
mine was highly negligent in its training, supervision, and discipline
regarding red zone violations,” and the training, therefore, did not mitigate
Knight Hawk’s negligence. Id . at 638.

In affirming the
Secretary’s unwarrantable failure determination, the Judge found that while
it is not clear how long Chamness was in the red zone, the duration of the
violation ended only because the miner was fatally injured by engaging in the
prohibited conduct. She stated that “[e]ven if this violation only existed for
a short time, red zone violations can result in serious consequences in a short
time and have been an ongoing issue at this mine since it opened in 2009.” 37 FMSHRC at 639 . 

The
Judge further found that although the operator took some steps to abate red
zone issues by providing training and weekly safety meetings, there was no
follow-through or enforcement, beyond counseling, in support of its policy
against entering red zones. Id .
at 642. She also determined that Knight Hawk was aware that greater compliance
efforts were necessary because MSHA inspectors routinely discussed red zone
hazards, and Knight Hawk’s management knew that MSHA placed great emphasis on the
topic. As support, the Judge pointed to MSHA’s recently published final rule,
which requires proximity detectors on continuous miners. 80 Fed. Reg. 2188 (Jan.
15, 2015) (codified at 30 C.F.R. § 75.1732). She also took official notice of MSHA’s
online publications addressing red zone hazards and safety. Id . at 641 .

Finally,
although the Judge stated that Knight Hawk abated the violation in good faith
and commended it for installing the proximity devices, she nonetheless found
the $70,000 proposed penalty to be appropriate in this case. She noted that the
operator stipulated that the penalty would not affect its ability to continue
in business, and that the gravity, negligence, and history of violations were
addressed previously in her decision. Id . at 645 . The Judge also
acknowledged the operator’s commendable violation history for the previous 15
months but did not make express findings in her penalty analysis. Id . at
640, 645.

II.

Disposition  

A.     Definition of
“Red Zone”

Knight Hawk
argues that during the investigative interviews, the miners who testified to
seeing other employees in the red zone were not referring to the danger zone of
the continuous miner as defined by MSHA, but to the danger zone of other mobile
equipment as applied under the operator’s broad red zone policy. [11] It
maintains that MSHA should have informed the miners who were interviewed during
its investigation that MSHA’s definition of red zone was limited to the
continuous miner. It further argues that this alleged confusion about what
constituted a red zone led the Judge to conclude incorrectly that it was highly
negligent and had engaged in an unwarrantable failure to comply.

We reject this
argument and conclude that substantial evidence supports the Judge’s finding
“that most, if not all, of the discussion of the red zone during the
investigation, related to the red zone . . . [of] the continuous miner.” [12] 37 FMSHRC
at 637.

Although support
for Knight Hawk’s position can be found in Pasquino’s statement to
investigators describing seeing miners in the red zone of various pieces of mobile
equipment (KHC Ex. R at 5; Tr. 63-64), the miners were being questioned in the
context of an investigation about a miner who had just been killed in the red
zone of a continuous miner. William Kendrick, an experienced continuous miner
operator of 12 years and the miner who helped train Chamness, testified that he
knew that when asked about the red zone, the investigative team was referring
to the continuous miner. Tr. 178, 180. He also indicated that when discussing
fatalities and red zone violations at training, the information provided to the
miners concerned continuous mining machines. Tr. 173. Similarly, Safety
Director Jankousky testified that he knew the investigators were referring to a
continuous miner when they were discussing the red zone even though he believed
the other miners did not. Tr. 245. He also stated that the miners are briefed
on the roof control plan and that they understand that red zone in the roof
control plan refers to the continuous miner. Tr. 247.

Additionally, Knight
Hawk agents present for the interviews not only failed to inform MSHA of any suspected
confusion, but neglected to inform investigators that the company used the term
“red zone” more broadly at the Prairie Eagle South Mine. Tr. 245-46. While the
operator’s representatives asserted they were barred from actively participating
in the interviews, there is no evidence that they were prohibited from speaking
with investigators before or after the interviews were completed. Knight Hawk did
not call the five rank-and-file miners interviewed by MSHA as witnesses at the
hearing to rebut MSHA’s assertion that the miners understood red zone to mean
the pinch point area of a continuous miner. [13]

Lastly, any misunderstanding
about the definition of red zone was the direct result of Knight Hawk’s actions,
not the Secretary’s. The operator chose to use the term “red zone” more
broadly, even though it knew that MSHA only applied the term to the danger zone
around energized continuous miners. Mine Superintendent Winters acknowledged
that MSHA’s definition of red zone is widely understood in the mining industry,
and Jankousky stated that under MSHA regulations, the only equipment defined as
having a red zone is the continuous miner. [14]
Tr. 102; 235-37.

In addition, the Commission has
recognized that “‘[r]ed zone’ issues involve procedures regarding the avoidance
of a zone around a continuous miner , intended to address the hazards of
moving equipment.” Prairie State Generating Co., 35 FMSHRC 1985, 1987
n.4 (July 2013) (emphasis added); see also Kennedy v. Joy Techs., Inc. ,
269 F. App’x 302, 306 (4th Cir. 2008) (acknowledging red zone as being within
the “turning radius of the [continuous] mining machine”). As the only
party having knowledge of the dueling “red zone” definitions and the party who
implemented the broad policy, it was incumbent upon Knight Hawk to ensure that
miners understood what red zone meant for purposes of the MSHA investigation. 

B.      The Relevance of
Similar Danger Zone Violations

Knight Hawk contends
that because its roof control plan only prohibits miners from entering the “red
zone” of a continuous miner, evidence of miners entering the danger zone of other
equipment is irrelevant to whether the operator, in this instance, was highly
negligent and whether there was an unwarrantable failure to comply with section
75.220(a). We disagree.

Because we are
not bound by MSHA’s Part 100 definitions, the Commission and its Judges employ a
traditional negligence analysis in support of an independent determination on
the issue. [15]
Mach Mining, LLC v. Sec’y of Labor , 809 F.3d 1259, 1264 (D.C. Cir. 2016)
(citing Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015)). Under this
analysis, “an operator is negligent if it fails to meet the requisite standard
of care—a standard of care that is high under the Mine Act.” 37 FMSHRC at 1702.
Considerations include “what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulations.” Id .;
see generally U.S. Steel Corp ., 6 FMSHRC 1908, 1910 (Aug. 1984) .

In the instant
case, the record demonstrates that prior to becoming Chamness’ supervisor,
Pasquino personally observed Chamness on three occasions enter the danger zone of
a shuttle car, a ramcar/scoop, and a roof bolter. After becoming foreman,
Pasquino witnessed Chamness enter the danger zone of a ramcar, after which he counseled
Chamness on the importance of staying out of pinch point areas. Despite this
counseling, five months later, Pasquino again observed Chamness standing in the
danger zone of a roof bolting machine while working as a roof bolter.

Of course, due
to MSHA’s definition of the red zone, these incursions into danger zones other
than a continuous mining machine did not violate section 75.220(a). Nonetheless,
they are highly relevant to whether Knight Hawk’s actions were reasonable and
prudent under the circumstances. Specifically, from the perspective of Knight
Hawk’s training and disciplining of miners, the previous instances evidenced a
common carelessness with the violative conduct – entering the danger zone of mobile
equipment – that ultimately led to Chamness’ death. On five occasions before
his fatal accident, Chamness was in direct violation of Knight Hawk’s red zone
policy – a policy that equally encompassed the red zone of the continuous miner.
Indeed, according to the witnesses, many miners violated Knight Hawk’s red zone
policy without facing any discipline.

It is laudable
when an operator goes beyond regulatory requirements in its safety program. However,
when it does so and then utterly fails to enforce those policies, the actual lesson
to the miners may well be, as it apparently and tragically was here, that the
policies are not important and that entry into pinch point areas is not a
matter of particular concern to the operator. A safety policy mimicking a
mandatory standard that is not enforced creates a dangerous situation. Here,
Chamness’ sixth incursion into a danger zone was fatal.

The prior
occurrences are also relevant to the unwarrantable failure analysis. As set
forth in detail below, such events are directly relevant to many of the unwarrantable
failure factors. Because the “unwarrantable failure” clause directs decision
makers to consider the cause of the violation, the statute’s language permits
an interpretation that considers mine conditions beyond the violation itself,
including conditions that do not themselves violate mine safety and health
standards. Sec’y of Labor v. Jim Walter Res., Inc. , 111 F.3d 913,
919-20 (D.C. Cir. 1997); see also Jim Walter Res., Inc ., 21
FMSHRC 740, 742 (July 1999); Rock of Ages Corp. v. Sec’y of Labor , 170
F.3d 148, 157 (2d Cir. 1999).

Congress
intended a broad reading of “unwarrantable failure,” to accomplish the Act’s
purpose of protecting miners from health and safety hazards. See Jim
Walter , 111 F.3d. at 920, citing S. Rep. No. 95–181, at 31–32 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Res., Leg. Hist. of the Federal
Mine Safety and Health Act of 1977 , at 619-20 (1978). Accordingly, the Judge
properly considered prior violations of Knight Hawk’s red zone policy in her negligence
and unwarrantable failure analyses.

C.     Negligence

High negligence
“suggests an aggravated lack of care that is more than ordinary negligence.” Brody
Mining, 37 FMSHRC at 1703 (quoting Topper Coal, 20 FMSHRC at 350). A
Commission Judge “is not limited to an evaluation of allegedly ‘mitigating’
circumstances” and should consider the “totality of the circumstances
holistically.” Id. For that reason, high negligence may be found, in
spite of mitigating circumstances . . .” Id. at 1702–03.

We have held
that the negligence of a rank-and-file miner cannot be attributed to the mine
operator for civil penalty purposes. Western Fuel-Utah, Inc. , 10 FMSHRC 256,
262  (Mar. 1988). Instead,
the Commission looks to the operator’s actual or constructive knowledge of the
violative condition or practice and its supervision, training, and disciplining
of its employees to determine if the operator has taken reasonable steps
necessary to prevent the rank-and-file miner’s violative conduct. See, e.g.,
Southern Ohio Coal Co. , 4 FMSHRC 1459, 1464 (Aug. 1982).

Knight Hawk’s red
zone policy effectively treated all pinch point areas as having
equal degrees of danger and care required. As such, it was imperative that the
operator consistently enforce its policy through proper discipline,
supervision, and training. Substantial evidence supports the Judge’s finding
that this did not occur. 37 FMSHRC at 638.

When asked to
explain the company’s policy for dealing with miners who violate the red zone
policy, Pasquino stated: “One, you talk to him; two, you discipline him; and,
three, you discharge.” Tr. 213. He described it as a “zero tolerance” policy. Tr.

213. However, after personally witnessing Chamness violate the red zone policy
     on five separate occasions, including twice as Chamness’ foreman, Pasquino never
     progressed beyond verbal counselling. He did not order supplemental training or
     closer supervision of Chamness’ work. He also failed to follow Knight Hawk’s
     safety policy, which required that “any deviation from standards and
     procedures, as well as any unsafe condition should be immediately reported to
     your immediate supervisor. The supervisor will then report it to the Safety
     Director.” KHC
     Ex. I at 272.

Even though
entering the danger zone of mobile
equipment was undoubtedly a deviation from company safety standards, Pasquino
testified that he “just didn’t feel like it was necessary to report it” because
he “thought it was unintentional.” [16] Tr. 207-08,

210. This was woefully inadequate. A miner’s repeated violation of the
     company’s red zone policy would have caused a reasonably prudent foreman under
     similar circumstances to take more stringent disciplinary action to address the
     problem or, at least, report the occurrences to mine management. See Black
     Beauty Coal Co. v. FMSHRC , 703 F.3d 553, 561-62 (D.C. Cir. 2012) (affirming
     high negligence determination, in part, because miner failed to alert
     management of potential hazard). Being subjected to disciplinary action might
     have impressed upon Chamness the severity of his actions and served as a
     deterrent for breaching the red zone of a continuous miner.

Further, as the
Judge also noted, “Knight Hawk’s alleged expanded view of the red zone may
[have] in fact, dilute[d] the need for extra caution in the red zone around the
continuous miner.” 37
FMSHRC at 638. Counsel
for Knight Hawk acknowledged that the operator adjusted its training after this
accident to refer only to areas around continuous miners as “Red Zones” and to
indicate that areas around other pieces of equipment are considered “danger
zones.” Tr. 24. The failure to distinguish hindered rather than advanced
the goal of the mandatory standard to keep miners out of the highly lethal red
zone of the continuous mining machine .

Moreover,
although the miners were trained to stay out of the danger zone of mobile
equipment, they often did not obey the training, and when miners were found in violation, they
were not disciplined beyond verbal counseling. Therefore, even though Knight
Hawk trained its miners in red zone dangers during new miner training,
experienced miner training, annual refresher training, and weekly safety talks,
the company failed to enforce the training. The Judge appropriately declined to
weigh the training as a mitigating factor. [17]

Knight Hawk
further maintains that punishing it for its expanded red zone rule, which was designed
to provide added protection for miners, creates a bad policy and will deter
operators from enacting additional safety measures for fear of it being used
against them. We disagree. As noted above, an expanded application of the term
“red zone,” standing alone, is an improvement to any underground mine’s safety
plan. However, the Commission cannot ignore the flaws in an operator’s “heightened”
safety policy. Knight Hawk’s broadly applicable but unenforced red zone policy appears
to have worked, albeit unintentionally, in a manner contrary to MSHA’s red zone
provision because it diminished the level of caution required when in the red
zone of a continuous miner.

Accordingly, considering the
totality of the circumstances, the actions that a reasonably prudent foreman
familiar with the mining industry would have taken under these circumstances, the
relevant facts of this case, and the protective purpose of MSHA’s red zone
standard, we conclude that the substantial evidence supports the Judge’s finding
of high negligence.

D.     Unwarrantable
Failure

Unwarrantable
failure is aggravated conduct constituting more than ordinary negligence. Emery
Mining Corp. , 9 FMSHRC 1997, 2001 (Dec. 1987). It 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 considering all of 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
Manalapan Mining Co ., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co. ,
31 FMSHRC 1346, 1351 -57 ( Dec. 2009).

The Judge’s
determination of unwarrantable failure is amply supported by these criteria.        
37
FMSHRC at 640; see
also Consolidation Coal Co. , 22 FMSHRC 328, 331 (Mar. 2000). Knight Hawk
conceded that the violation posed a high degree of danger, and that the
violation should have been obvious to Chamness. KHC Post H. Br. at 25.

As to the length
of time the violative condition existed, the brief duration of a violative
condition is not a mitigating factor and does not militate against a finding of
unwarrantable failure if the hazardous condition is “readily distinguishable
from other types of violations” due to the “high degree of danger” it poses and
its “obvious nature.” Midwest Material Co. , 19 FMSHRC 30, 36 (Jan. 1997).
As the Judge found, it is unclear how long the decedent was in the red zone
prior to the fatal accident. However, standing in the “red zone” of a
continuous miner for any length of time will at all times pose an
unacceptably high risk of death to the person standing there. We agree with the
Judge that the duration of the violation ended at that time only because Chamness
was fatally injured while engaging in the prohibited conduct of standing in the
red zone. See 37 FMSHRC at 639, relying on Midwest Material , 19 FMSHRC
at 36 (finding that “the hazardous condition existed for a brief period of time
only because it culminated in the collapse of the boom on [the miner],
resulting in his death.”).

Regarding
notice of the violative condition, Chamness had demonstrated a propensity
for placing himself in harm’s way of mobile equipment. The prior acts of
indiscriminately violating danger zones under Knight Hawk’s red zone policy placed
Pasquino on notice that there was a likelihood that Chamness would enter the pinch
point areas of other equipment, including a continuous miner. Under Commission
case law, simply knowing that a miner might take a dangerous action can
support a conclusion that the miner needs additional supervision. A.H. Smith
Stone Co ., 5
FMSHRC 13, 15-16 (Jan. 1983); see also Spartan Mining Co. , 30 FMSHRC
699, 710 (Aug. 2008).

The
operator’s prior abatement efforts were insufficient under the circumstances. Although
Knight Hawk trained its miners, hung safety posters, and expanded its red zone policy
in an effort to increase safety, the company’s efforts in discouraging danger
zone intrusions fell far short of what was required, especially after learning of
Chamness’ propensity for endangering himself. Pasquino, as the first line
supervisor, failed to implement any meaningful disciplinary or corrective
measures aimed at discouraging the decedent from entering red zones.

It
is worth noting that Chamness’ behavior and Pasquino’s inadequate concern for repeated
danger zone
infractions were reflected in the indifference displayed by Knight Hawk’s upper
management. In particular, Safety Director Winters testified that if he saw a
miner enter the red zone on two separate occasions seven months apart, he would
only verbally reprimand him and “ maybe ” bring it to the attention of the
mine superintendent. Tr. 155 (emphasis added). He further stated that if a
miner was found in the red zone five times over four years, it would not raise
flags in his mind. Tr. 148-49, 162.

The
operator’s disciplinary approach reflects this attitude. In particular, MSHA
Investigator Wilcox testified that the accident investigation uncovered no
evidence that disciplinary action had been taken against any miner found in
violation of Knight Hawk’s red zone policy. Tr. 50, 53-54. This is further
supported by the testimony of Pasquino, who stated that in his two-and-a-half
years as foreman at Knight Hawk, he had never disciplined a miner for violating
a safety standard, and the testimony of Mine Superintendent Winters and Safety
Director Jankousky, who each confirmed that no employee had ever been
disciplined for being in the red zone, and that no red zone violations were ever
reported to management. Tr.
211-12.

With
regard to whether the operator was on notice that greater efforts were needed, there
is no evidence that MSHA had previously warned the operator of problems with
red zone compliance at the Prairie Eagle South Mine. It was improper for the
Judge to rely on MSHA’s online publications, such as the Rules to Live By,
aimed at encouraging red zone safety industry-wide as specific evidence that
Knight Hawk was on notice that greater efforts were necessary at its mine. Generally
available MSHA publications do not supply the specific notice contemplated by
this factor. MSHA’s emphasis on the seriousness of red zone violations does
not, by itself, establish that a particular operator was on notice that greater
efforts were necessary at its mine. See Dawes Rigging & Crane Rental ,
36 FMSHRC 3075, 3080-81
n.5
(Dec. 2014) (“we examine the operator’s [individual] history of violations,
warnings from inspectors, and other forms of specific warnings to determine if
the operator has been placed on notice of a persistent unsafe condition or
practice at its mine”) . [18]

Nevertheless,
Knight Hawk was on notice that miners repeatedly walked unsafely in danger zones
in violation of its red zone policy, which included the red zone of the
continuous miner as described in its roof control plan. Compare with Dawes Rigging , 36 FMSHRC at 3081 (noting
that operator was not alerted in any other way that employees engaging in
prohibited conduct represented an ongoing problem requiring corrective
measures).

We
conclude that Knight Hawk acted with aggravated lack of reasonable care in the
administration of its broader red zone policy, and nothing in the record suggests
that the operator employed a greater degree of care for the continuous miner. Accordingly,
substantial evidence supports the Judge’s determination that the violation was
the result of Knight Hawk’s unwarrantable failure to comply with the terms of
its roof control plan, as required under section 75.220(a)(1). 37 FMSHRC at
644.

E.      Penalty

Administrative
Law Judges are accorded broad discretion in assessing civil penalties under the
Mine Act. Westmoreland Coal Co ., 8 FMSHRC 491, 492 (Apr. 1986). A Judge’s
penalty assessment is reviewed under an abuse of discretion standard. Douglas
R. Rushford Trucking , 22 FMSHRC 598, 601(May 2000) (citing U.S.
Steel Corp ., 6 FMSHRC 1423, 1432 (June 1984)); Mid-Continent Res., Inc .,
16 FMSHRC 1218, 1222 (June 1994). In assessing civil monetary penalties, Section
110(i) of the Act requires that the Commission consider the six statutory
penalty criteria:

[1] the operator’s history of previous violations,
[2] the appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the effect on the
operator’s ability to continue in business, [5] the gravity of the violation, and
[6] the demonstrated good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.

30 U.S.C. §
820(i).

The
Judge discussed her findings related to five of the penalty criteria. She was
clearly aware of the operator’s history of previous violations, but she did not
make express findings regarding this history in the context of her discussion
of the assessed penalty. 37 FMSHRC at 640, 645. Although we could remand these
proceedings to the Judge to make the required findings, we see no need to do so
here. The Commission has held that although a Judge is charged with finding
facts on each of the penalty criteria in the first instance, findings may be
entered by the Commission on review based on undisputed record evidence. See
Sellersburg , 736 F.2d at 1153; 29 C.F.R. § 2700.30(a). Therefore, in the interest
of judicial economy, b ased on the
undisputed record evidence, we find that of the 36 violations issued to Knight
Hawk in the previous 15 months, only one citation was for a violation of its
roof control plan and only two citations were S&S.

The
operator’s safety record weighs in favor of a penalty less than the $70,000
maximum. However, the Judge’s findings regarding the other criteria support her
penalty assessment. [19]
In particular, the gravity of the violation was found to be S&S and was
undisputed. Additionally, a reading of the Judge’s entire opinion indicates
that significant weight was given to the operator’s negligence, the high degree
of danger posed by miners entering danger zones and Knight Hawk’s complete failure
to enforce its policy. We
have recognized that in assessing a civil penalty, a Judge is not required to
assign equal weight to each of the penalty assessment criteria. Rather, “[j]udges
have discretion to assign different weight to the various factors, according to
the circumstances of the case.” Lopke Quarries, Inc. , 23 FMSHRC 705, 713
(July 2001) (citing Thunder Basin Coal Co. , 19 FMSHRC 1495, 1503 (Sept.
1997)). Indeed, the Commission has held that Judges have not abused their
discretion by more heavily weighing gravity and negligence than the other
penalty criteria. Signal Peak Energy , LLC, 37 FMSHRC 470, 485 (Mar.
2015); Lopke Quarries, Inc. , 23 FMSHRC at 713.

Accordingly,
based on a reading of the Judge’s entire opinion and the undisputed facts, we
conclude that the Judge did not abuse her discretion in reaching her penalty
determination.

III.

Conclusion

For
the reasons set forth herein, we conclude that substantial evidence supports
the Judge’s findings that the violation was a result of the operator’s high
negligence and was due to its unwarrantable failure to comply. We also affirm
the Judge’s penalty assessment of $70,000. Accordingly, the Judge’s decision is
affirmed.

/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/ William I.
Althen

William I.
Althen, Commissioner

[1] Commissioner
Patrick K. Nakamura participated in the consideration of this matter, but his
term expired before issuance of this decision.

[2] 30 C.F.R. §
75.220(a)(1) states: “Each mine operator shall develop and follow a roof
control plan, approved by the District Manager, that is suitable to the
prevailing geological conditions, and the mining system to be used at the mine.
Additional measures shall be taken to protect persons if unusual hazards are
encountered.”

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

[4] According to
MSHA, the “red zone” is the pinch point area where any part of the continuous
mining machine can hit a miner during a move. Tr. 51; S. Br. at 3-4 n.2. It is
not a set position, but is relative to the location of the continuous miner as
the machine moves. See MSHA 2005 Summer Prop/Red Zone Special Safety
Initiative, Bulletin 3.  

[5] Knight Hawk’s
approved roof control plan states in pertinent part: “Safety Precautions for
Remote Control Mining: . . . No one shall be in the red-zone when continuous
miners are being trammed from place to place or being re-positioned in the
working place.” See Sec’y Exs. 1, 3 at 6.

[6] The S&S
terminology is also 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.”

[7] MSHA refers to
the danger zone or pinch point areas around other mobile equipment as “no go
zones.” S. Br. at 4; KHC Ex. H at 169-72, 176-81.

[8] Knight Hawk
representatives, including Mine Safety Director William Jankousky, were present
during the interviews but were not allowed to participate. Tr. 239, 245.

[9] Section 2.01 of
Knight Hawk’s safety policy states: “Knight Hawk . . . will not tolerate unsafe
practices or deviation from Knight Hawk, state or federal MSHA standards. . . .
[A]ny deviations from standards and procedures, as well as any unsafe condition
should be immediately reported to your immediate supervisor. The supervisor
will then report it to the Safety Director.” KHC Ex. I at 272.

[10] Knight Hawk was cited for a
red zone violation in 2009 when a continuous miner operator pinched his arm
doing a place change. In 2011, a miner intentionally trammed his continuous miner
toward a co-worker. In the first incident, the operator did not consider it a
red zone violation but issued the miner a letter of reprimand after MSHA cited
it for a red zone violation. In the second incident, Knight Hawk discharged the
employee. Tr. 122-29; KHC Ex. J; 37 FMSHRC at 635-36.

[11] For purposes of
this discussion and to avoid confusion, we hereafter use the terms “danger zone”
or “pinch point area” to generally refer to the dangerous area around all
mobile equipment at the Prairie Eagle South Mine. The term “red zone” refers
only to the pinch point area of a continuous mining machine, which is MSHA’s
interpretation of the term.

[12] When reviewing
a Judge’s factual determinations, the Commission is bound by the terms of the
Mine Act to apply the substantial evidence test. 30 U.S.C. §
823(d)(2)(A)(ii)(I); Jim
Walter Res., Inc .,
28 FMSHRC 983, 989 (Dec. 2006); DQ Fire & Explosion Consultants, Inc .,
36 FMSHRC 3090, 3095 (Dec. 2014); Mach Mining, LLC , 36 FMSHRC 1525,
1526-27 (June 2014); Topper Coal , 20 FMSHRC 344, 349 (Apr. 1998). “Substantial
evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support [the Judge’s] conclusion.” McCoy Elkhorn Coal Corp. ,
36 FMSHRC 1987, 1991 n.9 (Aug. 2014).

[13] The operator also
contends that the Judge improperly relied on vague and speculative hearsay
statements of the interviewed miners. However, h earsay evidence is admissible in
our proceedings so long as it is material and relevant. Mid-Continent Res.,
Inc ., 6 FMSHRC 1132, 1135-36 (May 1984); Richardson , 3 FMSHRC 8, 12
n.7 (Jan. 1981), aff’d on other grounds , 689 F.2d 632 (6th Cir.1982), cert.
denied , 461 U.S. 928 (1983). The statements by Knight Hawk employees to
investigators were clearly material and relevant to the issues being
considered. Thus, the Judge did not err in admitting and relying on the
testimony of Investigator Wilcox concerning what he was told by the five
rank-and-file miners during the investigation.

[14] In the MSHA
slides used by Knight Hawk in its training, MSHA refers to the dangerous area
around various pieces of mobile equipment, including the continuous miner, as
“no go zones” (KHC Ex. H at 169-72, 176-81), but the term “red zone” only
appears on slides depicting a continuous miner. KHC Ex. H at 173-75; Tr.
141-47; contra Tr. 111-13.

[15] Part 100
regulations apply only to the proposal of penalties by MSHA and not to
the assessment of penalties by the Commission. Brody Mining, LLC ,
37 FMSHRC 1687, 1701-02 (Aug. 2015); Jim Walter Res. Inc. , 36 FMSHRC
1972, 1975 n.4 (Aug. 2014); Sellersburg Stone Co. v. FMSHRC , 736 F.2d 1147,
1151-52
(7th
Cir. 1984)
(“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties
. . . we find no basis upon which to conclude that [MSHA’s Part 100 penalty
regulations] also govern the Commission.”).

[16] Prohibited red
zone violations can be intentional or result from inattentiveness, i.e., “just
forgetting where you are at in relation to [a] machine.” Tr. 52-53, 84. To
avoid red zone dangers, MSHA requires that continuous miners remain
non-operational when miners are within the pivot point or the turning radius of
the machine. See MSHA 2005 Summer Prop/Red Zone, Bulletin 3.

[17] It was reasonable
for the Judge to infer that at least a portion of the violations witnessed by
miners occurred in the red zone of a continuous miner. 37 FMSHRC at 637-38. The Commission
has held that “‘the substantial evidence standard may be met by reasonable
inferences drawn from indirect evidence’ . . . ‘provided they are inherently
reasonable and there is a logical and rational connection between the evidentiary
facts and the ultimate fact inferred.’” Consolidation Coal Co ., 20
FMSHRC 315, 320 n.4 (Apr. 1998) (citing Mid-Continent Res., Inc. , 6
FMSHRC 1132, 1138 (May 1984)). Here, s ix miners told investigators that they
had seen miners in red zones, and Pasquino acknowledged having found himself in
the red zone as well. The statements were made during the course of an
investigation regarding a miner who had just died from walking in the red zone
of the continuous miner. In addition, none of the miners indicated that their
statements excluded the red zone of a continuous miner.

[18] We do observe,
however, that Judges may take o fficial notice of the existence or truth of a fact
or other extra-record information that is not the subject of testimony but is
commonly known, or can safely be assumed, to be true. See McCormick on
Evidence, 3rd Ed. §§ 329, 330 at 923-927, 1028-1032; Fed. R. Evid. 201; Union
Oil Co. of California , 11 FMSHRC 289, 300 n.8 (Mar. 1989). The Commission
may take judicial notice of MSHA’s public documents. Brody Mining, LLC ,
36 FMSHRC 2027, 2030 n.4 (Aug. 2014), citing Jim Walter Res., Inc. , 7
FMSHRC 1348, 1355 n.7 (Sept. 1985).

[19] While Judges
have broad discretion in assessing penalties, Commissioners Young and Althen
question whether the maximum penalty imposed here conforms to the Commission’s
requirement that Judges fully explain their reasoning. In addition to the
operator’s history of violations, which appeared to reflect a commendable
general safety record, the operator appears not to have been credited at all
for its good-faith abatement, which was acknowledged by the Judge. Both factors
are expressly required to be considered by Section 110(i). In establishing
maximum penalties under the Act, Congress clearly was aware of the duty it had
imposed on the Commission to consider these factors, yet the maximum penalty
was imposed here despite their obvious mitigation. A Judge may properly find
that mitigating factors are outweighed by other considerations, but the Judge’s
failure to expressly explain how they were in this case is troubling.