Secretary of Labor v. Mach Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA found extensive loose-coal accumulations along Mach Mining's 3,500-foot slope belt, including six locations where coal contacted the belt or rollers. The mine's examination book said only that the slope belt needed cleaning and that work was in progress. The Commission affirmed both the accumulation violation and the examination-record violation as significant and substantial and highly negligent. It held that the generic notation did not adequately identify the nature and locations of the most hazardous conditions, while Mach's longstanding washback problem and prior accumulation violations showed that stronger compliance efforts were needed. Acting Chairman William Althen agreed with affirming the accumulation citation but would have vacated the recordkeeping citation because he believed the notation satisfied the standard and Mach lacked fair notice of a duty to list hazardous sub-locations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.400 and 75.363(b)
• Outcome: Both violations were affirmed as S&S and the result of high negligence.
• Key point: A broad notation that a long belt needs cleaning may be inadequate when it does not identify discrete locations where accumulations contact ignition sources and require priority attention.

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)                    

:        

:        

v.                                              

:         Docket No. LAKE 2014-0746

:        

MACH MINING, LLC                                   

:        

BEFORE: Althen, Acting

Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

BY: Jordan, Young, and Cohen,

Commissioners

This

proceeding, which arises under the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq.

(2012) (“Mine Act” or “Act”), involves two citations issued to Mach Mining, LLC,

by the Secretary of Labor’s Mine Safety and Health Administration (“MSHA”). The

first citation alleges that the operator violated 30 C.F.R. § 75.400 because

loose coal had accumulated along the side of the slope coal belt. The second

citation alleges that Mach failed to record the nature and location of the

hazardous conditions along the slope coal belt in the mine’s examination book

as required by 30 C.F.R. § 75.363(b).

After a hearing

on the citations, the Judge issued a written decision affirming both violations [1]

and finding that the violations were significant and substantial (“S&S”) [2]

and the result of Mach’s high negligence. 38 FMSHRC 2229 (Aug. 2016) (ALJ).  

Mach filed a

petition to review the Judge’s decision, which we granted. On review, Mach

contends that the Judge erred in affirming the S&S and high negligence

designations associated with the violation of section 75.400. Mach also asserts

that the Judge erred in finding a violation of section 75.363(b) and that it

lacked notice of the Secretary’s interpretation of that safety standard. In

addition, Mach maintains that the Judge erred in finding the violation of section

75.363(b) to be S&S and the result of high negligence. For the reasons that

follow, we affirm the decision of the Judge.

I.

Factual and Procedural Background

The citations

were issued at the Mach Number One Mine, an underground coal mine located in Illinois.

The citations concern the approximately 3,500 foot beltline known as the “slope

coal belt,” which runs down into the mine between a 12-foot wide travelway and

a four-foot wide walkway. The conveyor belt itself is about seven feet wide.  

On

July 14, 2014, sometime after 8:00 a.m., MSHA Inspector Bernard Reynolds and a

Mach foreman, Guy Webster, started to drive down the travelway to conduct a

regular quarterly inspection. Almost immediately upon their entrance, a miner

approached the truck and informed Webster of hazardous conditions near the

slope belt. Inspector Reynolds left the vehicle and walked to the belt, where

he saw extensive accumulations of coal. He decided to walk the length of the

belt to check for additional problems. Along the way, he documented his

observations, noting that coal was generally more prevalent on the far side of

the belt (along the walkway). [3]

He observed six discrete locations where coal had piled in extensive enough

quantities to contact the belt and its component parts. These six locations totaled

about 105 feet of beltline and involved 14 rollers contacting coal. Tr. 99-100.

Based

on the quantity of coal he observed, Inspector Reynolds believed that the

accumulations had existed for several shifts. He also noted where a misaligned

portion of the belt had cut about one-eighth of an inch into a steel beam

supporting the roof. The damage suggested that the belt had been misaligned for

several shifts. Tr. 78-79. Although Reynolds witnessed approximately six miners

shoveling coal at the top of the belt, the areas where he had seen coal in

contact with the belt were not being addressed at the time of the inspection.

Inspector

Reynolds issued Citation No. 8450924 alleging a violation of 30 C.F.R.      §

75.400, which provides that “loose coal, and other combustible materials, shall

be cleaned up and not be permitted to accumulate . . . .” Reynolds designated

the violation as S&S and resulting from high negligence. After the issuance

of the citation, a total of 27 miners were dispatched to address the beltline. Tr.

107-08. 

When

Inspector Reynolds returned to the surface, he reviewed the mine’s examination

book, including the examiner’s records for each belt. Inspector Reynolds considered

the most recent notation for the slope coal belt — “needs cleaned - work in

progress” — to be insufficient to address the nature and location of the hazardous

conditions that he recently observed. Accordingly, he issued Citation No.

8450926, alleging a violation of the examination recording requirements of 30 C.F.R.

§ 75.363(b). Reynolds designated the citation as S&S and resulting from

high negligence.

Earlier that

morning, at around 6:00 a.m., David Adams had performed an examination for Mach

while driving up the travelway in a vehicle. He testified that he observed some

coal accumulated along both sides of the belt, but did not observe any coal in contact

with the belt or its components. Adams noted that the panel being mined at the

time was very wet. As a result, water would often accumulate on the belt,

causing a large quantity of coal to spill off both sides in a short period of

time — a phenomenon he referred to as “washback.” [4]

Tr. 227.  He wrote the subject recording in the examination book, and testified

that the entire belt needed to be cleaned. The mine manager, Shane Rorer,

testified that he too drove the travelway earlier that morning, around 7:15

a.m., and did not observe coal in contact with the belt. Tr. 340-42. 

II.

Disposition

A.    

Citation

No. 8450924 (The Accumulations Violation)

The Significant and

Substantial Designation

a.      

Commission Case Law

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. Sec’y of Labor , 861

F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

Under the Commission’s Mathies test, it is the

contribution of the violation at issue to the cause and effect of a hazard that

must be significant and substantial. U.S. Steel Mining Co ., 6 FMSHRC

1834, 1836 (Aug. 1984). In evaluating that contribution, it is assumed that

normal mining operations will continue. See U.S. Steel Mining Co ., 6

FMSHRC 1573, 1574-75 (July 1984); see also U.S. Steel Mining Co ., 7

FMSHRC 1125, 1130 (Aug. 1985). The second step of Mathies 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. Newtown Energy, Inc ., 38 FMSHRC 2033, 2037-38 (Aug.

2016). [5]

In cases that involve violations which may

contribute to the hazard of an ignition or explosion, the likelihood of an

injury resulting depends on the existence of a “confluence of factors” that

could trigger the ignition or explosion. McCoy Elkhorn Coal Corp ., 36

FMSHRC 1987, 1992 (Aug. 2014). Factors include any potential ignition sources,

the presence or potential for presence of methane, float coal dust

accumulations, loose coal or other ignitable substance, and the types of

equipment operating in the area. See Utah Power & Light Co., Mining Div ., 

12 FMSHRC 965, 971 (May 1990); Texasgulf , 10 FMSHRC 498, 501-03 (Apr.

1988).

b.      

The Judge’s Decision

The

Judge concluded that the Secretary had demonstrated that a confluence of

factors was present and thus the accumulations violation was S&S. Specifically,

the Judge found that the second step of Mathies was satisfied in that the

violation contributed to the hazard of a belt fire. [6] Coal was in contact with

the belt and rollers in numerous locations, which was an ignition source. 38

FMSHRC at 2242. Furthermore, three of the bottom roller brackets were hot to

the touch. Id . The Judge recognized that wet coal remains a danger

because frictional heat sources, like the rollers rolling in coal and the “frozen”

rollers at issue, can cause the coal to dry out. 38 FMSHRC at 2242 (citing Consolidation

Coal Co. , 35 FMSHRC 2326, 2329-30 (Aug. 2013) (citations omitted)); Tr. 60.

In addition, the mine was on a five-day spot inspection because of the mine’s

excessive liberation of methane and, therefore, accumulations in contact with

the belt represented a “dangerous combination that was reasonably likely to

cause an ignition.” 38 FMSHRC at 2243.

The

Judge further concluded that a belt fire was reasonably likely to result in

serious injuries such as smoke inhalation or burns. The Judge rejected the

operator’s claim that its redundant and required safety measures would prevent

any serious injury. See Buck Creek Coal v. FMSHRC , 52 F.3d 133,

136 (7th Cir. 1995) (treating redundant mandatory safety protections as a

defense to S&S findings would lead to the anomalous result that every

protection would have to be nonfunctional before a S&S finding could be

made).  

c.       

Analysis

On review, Mach

contends that the Judge’s decision lacks the support of substantial evidence

and that the Judge’s analysis regarding the confluence of factors is flawed. For

the reasons that follow, we conclude that the Judge’s decision is supported by

substantial evidence [7]

and that Mach’s other arguments lack merit.

We find that the record is sufficient to demonstrate

that the coal accumulations here substantially contributed to the hazard of a

belt fire and reasonably serious injuries. [8]

It is undisputed that the coal that accumulated around the beltline was

extensive at the time of the inspection and was in contact with the belt and 14

rollers at six locations, totaling 105 feet of beltline. Three of the rollers

contacting coal were hot to the touch. The Judge credited Inspector Reynolds’

testimony that an ignition would likely result if the accumulations were left

unabated and in contact with ignition sources. The likelihood of an ignition

was compounded because the mine had a history of methane liberation. Although

the coal was wet at the time of inspection, friction through contact with the

beltline can cause wet coal to dry. Tr. 70, 100. In fact, the inspector

testified that he observed visible coal dust in the air in at least one

location (around the 1000-foot mark), which indicated that the coal was fairly

dry there. At least six miners were working along the slope belt at the time of

the inspection, and would be at risk of injuries associated with a belt fire

such as smoke inhalation or burns.

We also reject Mach’s contentions that the Judge’s

analysis was otherwise flawed. For instance, Mach argues that the Judge failed

to consider that the loose coal was intermixed with a large amount of rock and,

therefore, it was unlikely that the coal would ignite. However, Mach previously

did not contest that the material that fell from the beltline was combustible

and thus prohibited from accumulating in active workings. M. Post-Hearing Br.

at 15. Therefore, Mach has conceded that although the coal was mixed with some

rock, it was capable of igniting in conditions which could propagate a fire or

explosion.  

Mach further argues that because the coal that was

present was wet, the likelihood of a fire was further reduced. Yet, the

Commission has long held that “wet coal accumulations pose a significant danger

in underground coal mines.” Consolidation Coal Co ., 35 FMSHRC at 2329-30;

Black Diamond Coal Mining Co. , 7 FMSHRC 1117, 1120-21 (Aug. 1985)

(rejecting the argument that wet coal does not pose a dangerous combustible

risk because wet coal can dry out and fuel or propagate a fire or explosion). Accordingly,

wet coal accumulations in the presence of ignition sources may be found to be a

S&S violation. See Mid-Continent Res. Inc ., 16 FMSHRC 1226, 1230-32

(June 1994) (affirming a S&S determination and holding that “accumulations

of damp or wet coal, if not cleaned up, can dry out and ignite”). Mach has

ignored this established Commission jurisprudence in its argument that the

Judge erred. We find that the Judge’s analysis was consistent with the

Commission’s approach to wet coal accumulations. [9]

Mach also contends that the Judge erred when he failed

to assume that the conditions

would be soon addressed because miners were shoveling

in the area. We disagree. An S&S determination must be made at the time the

citation is issued “without any assumptions as to abatement”' and in the

context of “continued normal mining operations.” Paramont Coal Co ., 37

FMSRHC 981, 985 (May 2015); U.S. Steel Mining Co ., 6 FMSHRC at 1574.

We recognize

that a violation of section 75.400 may not contribute to the hazard of a belt

fire if active abatement of those accumulations is underway. See generally

Knox Creek Coal Co. v. Sec’y of Labor , 811 F.3d 148, 165-66 (4th Cir. 2016).

However, the evidence in this case clearly establishes that the miners

shoveling the belt at the time of the inspection were but a small fraction of the

manpower required to effectively abate the violation. No more than ten miners

were shoveling the belt when the inspector arrived. It took 27 miners up to

three days to completely abate the violative conditions. 38 FMSHRC at 2249

(citing Sec’y Ex. 2). Therefore, the miners shoveling the belt at the time of

the inspection would not and could not have abated the violation on their own. Given

the paucity of the efforts underway at the time of the inspection, as compared

to the abatement efforts ultimately required, substantial evidence supports the

Judge’s finding.

Mach maintains that due to the location of the

accumulations and the strength of the

ventilation system, smoke from a belt fire would be carried

out of the mine and miners would not be exposed to the associated hazards. This

argument has no merit. The slope coal belt is proximate to a designated

escapeway. Therefore, in the event of a fire, miners working along the slope

coal belt or exiting via that escapeway would be exposed to smoke.

Finally, Mach

asserts that the Judge’s finding that the mine’s history of methane

liberation compounded the risk of ignition is not

supported by substantial evidence. We conclude that the recurrent five day spot

inspections conducted by MSHA pursuant to 30 U.S.C. § 813(i) [10]

support a finding that the mine is at heightened risk for dangerous methane

liberation.

Accordingly, for the aforementioned

reasons, we affirm the Judge’s decision that the violation was S&S.

High Negligence

a.      

Commission Case Law

The

Commission evaluates the degree of negligence associated with a violation using

“a

traditional negligence analysis.” Mach Mining, LLC

v. Sec’y of Labor , 809 F.3d 1259, 1264 (D.C. Cir. 2016) (citation

omitted). The operator has a duty of care to avoid violations of mandatory

standards, and the failure to do so can lead to a finding of negligence when a

violation occurs. A.H. Smith Stone Co ., 5 FMSHRC 13, 15 (Jan. 1983). To

determine whether an operator has met its duty of care, the Commission

considers what actions a reasonably prudent person who is familiar with the

mining industry and the protective purpose of the regulation would have taken

under the same circumstances. Brody Mining, LLC , 37 FMSHRC 1687, 1702

(Aug. 2015). High negligence “suggests an aggravated lack of care that is more

than ordinary negligence” and “an operator’s intentional violation constitutes

high negligence for penalty purposes.” Topper Coal Co ., 20 FMSHRC 344,

350 (Apr. 1998) (internal quotation omitted).

b.      

The Judge’s Decision

The Judge concluded that Mach was highly

negligent. Mach “failed to address serious and largely self-imposed

accumulations hazards that developed over the course of several shifts.” 38

FMSHRC at 2245. The Judge credited Inspector Reynolds’ testimony that the

extent of the accumulations should have led mine examiners and managers to

recognize and ameliorate the problem. Id . at 2244.

The Judge determined that Mach failed to take adequate

measures to keep the area clear. The crew of miners assigned to shovel the belt

was clearly insufficient. Furthermore, Mach was using the belt to dewater the

mining face and, as a result, coal frequently washed off the steeply inclined

slope coal belt. Despite the foreseeability of these “washbacks,” Mach failed

to take actions that were consistent with those of a reasonably prudent mine

operator to address the situation. Mach finally installed an adequate

dewatering system about two months after the issuance of the subject citation. The

Judge characterized this action as “belated,” as Mach was aware of “washbacks”

along the slope belt since at least 2011. See Mach Mining, LLC , 33

FMSHRC 763, 769 (Mar. 2011) (ALJ). Furthermore, in the 15 months preceding the

issuance of the present citation, Mach had a history of 58 violations of

section 75.400. Sec’y Ex. 1. The Judge noted that the mine received yet another

section 75.400 citation for the slope belt only two weeks later (July 28). 38

FMSHRC at 2244. Based on the totality of the circumstances the Judge concluded

that Mach did not take measures consistent with those of a reasonably prudent

mine operator.

c.       

Analysis

We conclude that the Judge’s high negligence

determination is supported by substantial evidence. The operator had actual

notice of a longstanding condition that produced violative and potentially hazardous

accumulations, and failed to take appropriate actions. [11]

Although Mach

maintains that the Judge erred in concluding that the accumulations had been

present for several shifts, we find that the Judge appropriately exercised his

discretion in crediting the testimony of the inspector. 38 FMSHRC at 2246. [12]

In part, the Judge relied on the depth of the cut into the steel beam to corroborate

the inspector’s likely timeline of the conditions. The Judge credited the

testimony of Inspector Reynolds, corroborated by Mach foreman Webster, that it

would take at least 24 hours for the rubber belt rubbing into the steel I-beam

to cause a cut into the steel of one-eighth of an inch. Id . at 2233-34

n.10, 2246.  While Mach argues that the overwhelming majority of the coal

accumulations occurred after 7:15 a.m. (the time when the mine manager last

drove the travelway), we, like the Judge, find it unlikely that such extensive

amounts of coal would have accumulated over the next hour, just prior to the

arrival of an MSHA inspector.

Mach also

argues that the Judge erred in relying on a prior decision, Mach Mining, LLC ,

33 FMSHRC 763 (Mar. 2011) (ALJ), to establish that the operator was on notice

that the slope belt was prone to accumulated coal as a result of “washbacks.” We

disagree. The prior case involved almost the exact same factual circumstances:

At the same mine the slope coal belt had been running in accumulations which occurred

as a result of “washbacks.” The operator was aware of the “washback” issue at

this mine.

Mach also asserts

that the Judge failed to explain how any of the noted prior citations placed

Mach on notice that greater efforts were necessary for compliance. We conclude

that 58 violations in a 15-month period is enough to put a reasonable mine

operator on notice that greater efforts to comply with the standard were

required.

Mach argues

that the Judge erred in concluding that only about six miners were shoveling

the belt at the time of the inspection. Mach asserts that in addition to the

five to seven miners who Reynolds saw shoveling near the top of the slope belt,

Reynolds also encountered another miner at the 570 foot mark. Additionally,

Webster saw another two or three miners at 2700 to 2900 feet, and another two

or three miners at the bottom. PDR at 3, 27; Tr. 289. But even if there were

more than six miners shoveling along the belt at the time of the inspection,

none of these miners (except possibly for one at 570 feet) were shoveling in

the six separate locations — the most hazardous locations — where Reynolds

encountered 14 rollers turning in coal. Tr. 69-89, 100. In any event, the

number of miners who Mach had shoveling at the time of the inspection was

grossly inadequate given that it took 27 miners up to three days to completely

clean up the accumulations. Tr. 107-08; Sec’y Ex. 2.

Mach additionally

contends that the Judge erred in finding that a reasonably prudent mine

operator would have installed an alternative dewatering system earlier. We

conclude that the Judge’s determination is grounded in the facts and is

reasonable. The slope coal belt had experienced problems with coal

accumulations caused by “washbacks” since at least 2011. The panel currently

being mined was particularly wet. Parker Phipps, the general manager, testified

that the existing dewatering system was insufficient to control the water,

which was constantly transferred to the belt. Tr. 385. Mach maintains that it

would have been unsafe and impractical to shut the longwall down to install a

new dewatering system. Yet, Phipps himself testified that a new dewatering system

was installed over a long weekend (while the longwall was shut down), and that

the new system virtually eliminated the “washback” problem. Tr. 389.  

Mach asserts

that the Judge erred when he considered that the mine received an additional

citation alleging a violation of section 75.400 for the slope coal belt two

weeks later (July 28) as part of his negligence analysis. We agree with Mach on

this point. The July 28 citation is irrelevant for purposes of the operator’s

negligence on July 14. While a history of violations of a safety standard can

place an operator on notice that a greater effort at compliance is necessary ( see

Big Ridge , Inc ., 35 FMSHRC 1525, 1536 (Jun. 2013)), the Commission

does not consider the particular factual circumstances of a subsequently issued

citation when evaluating negligence for past conduct. On balance, however, we

consider this error to be harmless. The Judge’s erroneous consideration of the

July 28 citation does not detract from the weight of the other evidence.

Accordingly, we

affirm the Judge’s high negligence decision as supported by substantial

evidence. The water problems that contributed to the coal accumulations were foreseeable,

yet Mach took inadequate measures to ensure that the requirements of section

75.400 were complied with.

B.     

Citation

No. 8450926 (The

On-Shift Recording Violation)

The Violation

The

Judge ruled that Mach failed to comply with the recording requirements of

section 75.363(b) [13]

which provides that the operator must identify “the nature and location of the

hazardous condition . . . .” 38 FMSHRC at 2249. The Judge concluded that Adams’

recording — “slope [belt] - needs cleaned - work in progress” — failed to convey

the nature of the hazardous conditions that were present, such as accumulations

contacting a potential ignition source like the beltline, and their respective

locations. Id . at 2247. The Judge also concluded that Adams’ vague

notation undermined the purpose of the safety standard, which includes the

right of miners to review examination books to discover the nature and location

of underground hazards. Id . at 2250.

Mach

contends that its recording complied with the standard. It maintains that there

is no additional requirement in the language of the standard requiring any

degree of specificity.

We

categorically reject this argument and agree with the Judge that Mach violated

the standard. Section 75.363(b) requires an examiner to record “the nature and

location of the hazardous condition[s].” At a minimum, the examination notation

at issue — “slope [belt] - needs cleaned - work in progress” — fails to comply

with the standard’s mandate to state the “nature” of the hazards and where

these hazards are located along the beltline.

There is no reference

in the examination book to the multiple locations where coal was contacting

ignition sources. Over the 3,500 feet of the slope belt, extensive

accumulations of coal were in contact with the belt in six separate locations

for a total distance of 105 feet, which included 14 rollers, three of which

were hot to the touch. It is well established that coal in contact with an

ignition source is a particularly serious hazard. In addition, the belt was

misaligned and was contacting a steel I-beam. 38 FMSHRC 2233-34, 2242. There is

no mention of this hazard in the report.

The mine examiner’s attempt to account for these

conditions, which included particular and localized hazards, was to summarily

write that the slope belt “needs cleaned” in the examination book. This generic

notation communicates nothing regarding the locations of the ignition hazards, and

provides no useful information about the hazard except that it involved coal, especially

considering that the slope belt suffered known frequent problems with coal

spillage. This examination record failed to meet the “reasonably prudent miner”

test.

The Commission has consistently applied this test to

broadly worded standards. See U.S. Steel Mining Co ., 27 FMSHRC 435, 439

(May 2005). In fact, we recently used it to determine the adequacy of a

workplace examination. Sunbelt Rentals, Inc ., 38 FMSHRC 1619

(Jul. 2016). In Sunbelt Rentals , we held that an examination performed

pursuant to 30 C.F.R. § 56.18002(a) (the workplace examination standard for

metal and nonmetal mines) [14]

must be adequate, and it must identify conditions which may adversely affect

safety and health that a reasonably prudent

competent

examiner would recognize. Id . at 1627. [15]

In the case before us, the “nature” of the hazardous condition and the

“location” must be recorded in such a way that those who read the examination

record will know how and where to address the problem. [16]

As the Judge noted, the inspector testified that the “slope

[belt] - needs cleaned – work in progress” notation was deficient because the slope

belt needed cleaning every shift. 38 FMSHRC at 2247, citing Tr. 117. Indeed,

when the inspector reviewed the examination books for the month preceding his

inspection, he found that the same notation of “slope [belts] needs cleaned,

cleaning in progress” (and nothing more) appeared for 81 of the 90 preceding examinations.

Tr. 121, 124; R. Ex. 2. Moreover, the insufficiency of this recording is

evidenced by the fact that none of the miners who were actively working to

address the accumulations at the time of the inspection were addressing

locations where the beltline was contacting coal. [17]  

38 FMSHRC at 2247.

MSHA has recognized

that “[a] record of all hazards found, as well as the required corrective

action, serves as a history of the types of conditions that can be expected in

the mine. When the records are properly completed and reviewed, mine management

can use them to determine if the same hazardous conditions are recurring and if

the corrective action being taken is effective.” Safety Standards for Underground

Coal Mine Ventilation , 61 Fed. Reg. 9764, 9803 (Mar. 11, 1996). Thus, the

purpose of the standard is frustrated when, as here, the operator fails to

include any identifying details in a recording, because the record created

cannot help identify and correct reoccurring or chronic problems. [18]

Moreover, as the Judge pointed out, and

other

Commission Judges have also recognized, [19]

one of the purposes of the standard is to enable miners to know of dangerous

conditions before they go underground. 

We recognize that in other circumstances the

specificity with which a reasonably prudent miner would record the nature of a

hazardous condition and its location pursuant to this standard may vary based

on context.  Here, however, the recording is so vague that it omits information

needed to properly identify the nature and location of the hazardous

conditions. Regarding Mach’s “fair notice” argument, any reasonably prudent

miner would understand that the notation in question does not adequately

identify the “nature and location of the hazardous conditions.” See Ideal

Cement Co ., 12 FMSRHC 2409, 2416 (Nov. 1990) (In determining whether a

safety standard provides adequate notice, the Commission generally applies an

objective standard, asking “whether a reasonably prudent person familiar with

the mining industry and the protective purposes of the standard would have

recognized the specific prohibition or requirement of the standard.”). Accordingly,

we affirm the Judge’s finding of a violation.  

Significant

and Substantial

The Judge

concluded that the violation was appropriately designated as S&S. Specifically,

he found that the recording violation contributed to the hazard of a fire

occurring because miners would be unaware of the nature and location of the hazardous

conditions, and if an ignition resulted there would be a reasonable likelihood

that miners would suffer serious injuries such as smoke inhalation and burns. 38

FMSHRC at 2249-50. We conclude that this finding is supported by substantial

evidence.   

The first

step of the Mathies test is met, as we affirm the Judge’s finding of a

violation. As to the second step, the Judge found that the failure to properly

record the slope belt accumulations contributed to the discrete safety hazard

that management and miners would be unaware of the nature and location of the

ignition hazards, and they would not be able to immediately address the accumulations

most likely to result in ignition. Id . at 2249; Tr. 129-30. It is

undisputed that at the time of the inspection, miners were shoveling where

ignition hazards were not present, constituting substantial evidence supporting

the Judge’s finding. The third and fourth steps of the Mathies test are

met for the same reasons described supra with regard to the accumulations

violation. 

On review,

Mach argues that the Judge’s underlying factual findings regarding the

conditions on the beltline lack the support of substantial evidence. We

disagree. The Judge credited the testimony of Inspector Reynolds to support his

findings. 38 FMSHRC at 2246. After hearing from all the witnesses and studying

the record evidence, he found that the conditions that the inspector observed were

present at the time of Adams’ morning examination. As stated, supra , the

Commission recognizes that a Judge’s credibility determination is entitled to

great weight and may not be overturned lightly. We see no compelling reason to

disturb the credibility determinations of the Judge on this point.

Mach presents

other allegations of error by the Judge, similar to those we rejected in our

analysis of the S&S nature of the accumulations violation, none of which is

compelling. For instance, Mach maintains that the Judge erred by failing to

account for the dampness of the coal accumulations, the relatively low recovery

rate, and its active abatement efforts. For the reasons previously articulated,

we believe that these arguments lack merit.

High Negligence

The Judge

concluded that Mach exhibited a high degree of negligence. He reiterated that

the extensive accumulations were present for multiple shifts and found that

Adams’ decision to perform an examination while driving likely precluded Adams

from observing coal that had accumulated on the walkway. The Judge further found

that Adams’ practice of supplementing his written record of examination in

personal meetings with mine managers did not alter his duty to comply with the

plain requirements of the safety standard. [20]

38 FMSHRC at 2250.

Mach asserts

that the Judge erred in his negligence analysis. First, Mach maintains that it

was error for the Judge to consider Adams’ use of a vehicle during the

examination as exacerbating its negligence. We disagree. The Judge simply

inferred that performing an examination from the travelway, while driving, made

it more difficult to observe coal that accumulated along the walkway. The

inference is based in fact. Inspector Reynolds walked the belt and noted that

the majority of the accumulations he observed were on the far side of the belt.

In contrast, Adams testified that he did not observe any coal contacting the

belt or rollers when he drove up the travelway earlier that morning. It was

reasonable for the Judge to infer that the difference in their observations was,

at least in part, the result of differences in examination methods. Nothing in

the Judge’s decision suggests that the use of a vehicle during a belt

examination is impermissible to the extent that an examiner is able to observe

and record hazardous conditions that are present. In this case, though, the

operator should have at least ensured that a closer examination was made in

areas more prone to accumulations, especially in light of what the operator

acknowledged as an ongoing problem with “washback.” See Tr. 227, 290,

300, 304, 391.

In addition,

Mach asserts that the Judge erred by comingling the requirement to perform an on-shift

examination (30 C.F.R. § 75.362(a)(1)) with the more precise recording

requirements of section 75.363(b). He did not. The more specific requirements

of an examination are not designed to be read in isolation from the more

general requirements of an examination; instead they should be read as “interconnected

provisions.” See Jim Walter Res., Inc ., 28 FMSHRC 579, 602 n.28 (Aug.

2006) (citation omitted). We recognize that in this case, the failure to

properly record a hazardous condition may have arisen from the inadequacy of

the required on-shift examination. Nevertheless, the issuing inspector acted within

his discretion when he chose to charge Mach with a violation of the more

specific safety standard, section 75.363(b), as opposed to a more general

requirement.

Mach further

contends that the Judge erred by comparing the more substantive notations for

the July 9 and July 10 examinations to the July 14 record because no evidence

was elicited as to the conditions that were actually present on those days. [21]

We agree that the relevance of the previous examination records, taken alone,

is somewhat limited. The mere record of a previous examination does not provide

the necessary context by which to judge whether the operator acted with a

reasonable degree of prudence in making that recording. Yet, the prior

recordings do in fact list locations of hazardous conditions, indicating that

Mach understood that it was required to provide some additional detail as to

the location of accumulations when making a record. Moreover, the more specific

recordings of conditions on the slope belt just a few days earlier should have

prompted Adams to more closely inspect those areas for recurring or ongoing

problems during his examination.  

In summation,

we conclude that the complete failure to document extensive accumulations that

were in contact with the belt and its moving parts, combined with the failure

to document that the belt was misaligned, supports a high negligence

determination.     

III.

Conclusion

We hereby affirm

the decision of the Judge in all respects. The violation of section 75.400

cited in Citation No. 8450924 is affirmed as S&S and the result of high

negligence. The violation of section 75.363(b) cited in Citation No. 8450926 is

upheld and affirmed as S&S and the result of high negligence.

/s/

Mary Lu Jordan

Mary

Lu Jordan, Commissioner

/s/

Michael G. Young

Michael

G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert

F. Cohen, Jr., Commissioner

Acting Chairman Althen, concurring in

part and dissenting in part,

I concur with my colleagues in affirming

the violation identified in Citation No. 8450924 as exhibiting high negligence and

as being significant and substantial. With respect to Citation No. 8450926, I

would find that the pre-shift examination report complied with the requirements

of section 75.363(b). Therefore, I would vacate that citation.

Citation No. 8450924

The operator conceded that a violative

accumulation of mined material existed along the entire slope belt operating in

the main entryway to the mine — that is, an entry 26 feet wide and 10 feet high

with a paved roadway for vehicular traffic. Testimony established that due to

the problems created by the flow of water, cleaning mined material that washed

along the beltline was an ongoing, everyday activity with contract labor

employed to perform that task. [22]

From an S&S perspective, the case

rests upon the reasonably likely effect of the violation under normal mining

conditions. [23]

Normal mining conditions at that time were belt transportation of mined

material of 55% rock and 45% coal, a continuing flow of substantial water on

the belt, cleaning actions at the top and at one other point along the belt,

and rubbing of the mined material on at least 14 rollers and 105 feet of belt

until the already initiated abatement reached those areas. [24]

Operator witnesses testified that with a

continual flow of water the accumulation was too damp/wet to ignite — one

witness testified colorfully that “[w]ith all due respect, sir, if you could

have seen how wet this material was, you couldn't light it with a blow torch,

let alone let it rub with the belt rub and have a hazard.” Tr. 317. The

inspector testified that the material was a soupy mess saying, “This case is

water and rock and coal all souped together, you know, [] they’re traveling

together.” Tr. 169. However, the inspector identified short but distinct areas

where the mined material was touching the belt and/or rollers. He also

testified that frictional heat of a belt or roller on the accumulation could

cause the material to dry and ignite. Although he did not test the temperature

of the rollers, he said some rollers were warm or hot. He agreed the materials

were at least damp and 55% rock. Nonetheless, he believed that sufficient

drying could occur before abatement to create an ignition hazard.

The Judge accepted the inspector’s

testimony. Thus, he found an ignition reasonably likely because frictional

rubbing could dry the accumulated material. The substantial evidence test is

not what the trial judge could have found or what an appellate judge would have

found, but whether there is sufficient relevant evidence that a reasonable mind

would accept as adequate to support the Judge’s conclusion. Here, the Judge

credited the inspector’s evaluation of the effect of continual rubbing of the

material. This meets the substantial evidence standard. I, therefore, must

concur in affirming the Judge’s significant and substantial determination. [25]

Citation No. 8450926

MSHA Inspector Reynolds cited the operator

for a violation of 30 C.F.R. 75.363(b) for an alleged failure to make a record

of a hazardous condition. The standard is brief, plain, and unambiguous. In

relevant part, section 75.363(b) requires, “A record shall be made of any

hazardous condition and any violation of the nine mandatory health or safety

standards found by the mine examiner.” I agree with my colleagues that the

standard requires that the record identify the nature of a hazard found by the

examiner and its location. Simply stated, when an examiner sees a hazard, he

must report what the hazard is and where it is located so that management and

miners are alerted and may address and abate it. That is exactly what the

examiner did here. Therefore, I respectfully dissent.

I need not extensively discuss the plain

meaning rule. In recent years, circuit courts have had several occasions to

explain the plain meaning standard to the Commission. CalPortland Co. v.

FMSHRC , 839 F.3d 1153, 1162 (D.C. Cir. 2016) (“[A]n agency has no power to

‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous

statutory terms.” (quoting Util. Air Regulatory Grp. v. EPA , 134 S. Ct.

2427, 2445 (2014)); Performance Coal Co. , 642 F.3d 234, 239 (D.C.

Cir. 2011) (“[T]he language Congress selected [is] plain, clear, and simple and

we refuse to muddy it by finding ambiguity where none exists.”); Vulcan

Constr. Materials, L.P. v. FMSHRC , 700 F.3d 297, 309 (7th Cir. 2012)

(“[T]he unambiguous language of the statute requires that temporary

reinstatement end when the Secretary’s involvement ends.”).

The present controversy, therefore, is

actually quite limited. Did the examiner violate section 75.363(b) by reporting

a hazardous accumulation of mined material located along the entire beltline

without finding and noting sub-locations of particular accumulations along that

beltline? Stated differently, did the examiner fail to report the nature and

location of an accumulations hazard that extended the length of the beltline by

not including a subset report specifying specific locations within that one

hazard/violation that, after hearing, caused the one violation to be S&S? [26]

Although idiomatically terse, Adams’

record clearly communicated a systemic problem that everyone in the mine

already knew — that mined material was washing from the belt and accumulating

along the beltline. This was a hazard that had to be abated along the length of

the belt. The report fulfilled the standard by telling miners and mine

management the nature and location of the hazard requiring abatement.

As the examiner and a mine supervisor

testified, although the washback and spillage of material along the beltline

was a particular problem on the day of the violation due to the resumption of

longwall mining after a weekend shutdown, such accumulations had been a

constant and well-known problem. Tr. 228, 252, 284. Moreover, the report is for

the “slope” — that is, observations affecting the slope without any

limitations, the entire slope. Thus, the report of a need to clean material is

an indication of accumulations along the entire slope. Further, the “needs

cleaned” together with “work in progress” (a reference to miners already

shoveling the accumulations) demonstrates that the examiner’s record identified

that accumulations of mined material along the belt needed to be and were being

cleaned. R. Ex. 1.

Indeed,

my colleagues admit that the record did report the nature of an accumulation of

mined material (the hazard) and its location — along the slope belt. Slip op.

at 12 n.17. In sum, all Commissioners

agree that the examiner communicated to management and miners at this mine the

presence of a hazard of accumulated mined material located along the entire

beltline. Thus, they virtually concede

the record complied with the plain and literal language of the standard.

The only case cited by the majority is Sunbelt

Rentals, Inc. , 38 FMSHRC 1619 (Jul. 2016). That case is wholly inapposite. In

fact, that case strengthens the plain meaning of the standard involved in this

case. The Sunbelt standard did not involve the record of an examination

but rather the competence of the examiner. 30 C.F.R. § 56.18002 is in

the standards governing metal and nonmetal mines and is the only general

provision on examinations of workplaces in those regulations, which are far

briefer and less inclusive than the regulations governing underground coal

mines. Part 56 is 56 pages long in the paperback printed copy of the Code of

Federal Regulations as compared to the 183 pages in Part 75 governing

underground coal mines.

Section 56.18002(a) requires that “[a] competent person designated by the

operator shall examine each working place at least once each shift for

conditions which may adversely affect safety or health. The operator shall

promptly initiate appropriate action to correct such conditions.” In Sunbelt ,

the administrative law judge held that

the requirement for a “competent” examiner did not imply that the examination

even had to be “adequate.” Thus, the ALJ interpreted the examination standard

in the regulations to permit inadequate examinations. The Commission rejected

that notion and held that an examination by a competent examiner had to

identify “conditions which may adversely affect safety and health.” Id.

at 1627.

Absent the Commission reading, which

itself is rather vague and only implies an obligation to note a location, there

would have been no general standard requiring any level of adequacy. In Sunbelt ,

the Commission interpreted an otherwise ambiguous and effectively meaningless

standard in a manner that gave it form and content, albeit less form and

content than section 75.363. Here, my colleagues go in an opposite direction:

they take a plain, clear, and meaningful standard and misinterpret it creating

ambiguity and uncertainty. The Sunbelt decision is far different from

imposing a policy directive to dissect a clear and compliant hazard report in

order to find that it fails to note or delineate one hazard or different

hazards within a group of hazards. [27]

Here, a long-existing regulation fully and

plainly expresses the requirement of the standard. The record in this case

fully informed management of the hazard and its location. It was then

management’s job to provide for abatement in a suitable manner. With a

continuing water flow, management needed to clean the entire belt and believed

they could do so safely with the belt operational. MSHA subsequently allowed

the belt to run throughout the abatement period.

Based upon the sui generis facts of this

case, my colleagues find a violation in a failure to report specific locations

within one reported accumulation hazard. The outcome of this one case is not so

much a problem as the confusion and dissonance created for other cases by the

imposition of a new rule without a basis for judging its fulfillment. Thus, the

majority would create a new rule, albeit sharply limited by the exceptional

facts of this case, in which reporting the nature and location of a hazard is

not compliant with section 75.363(b). [28]

In their view, the clearly understandable record of an accumulation hazard and

its location is not sufficient unless the examiner reports any particular

places (or presumably particular hazards) where an inspector asserts the

examiner should have observed greater or lesser danger, to some unknown and

unarticulated extent, within the reported hazard(s).

The problem for the majority’s analysis is

that the examiner did precisely what the standard requires. We may frame the

dispute between my colleagues and myself by reviewing the citation issued by

the inspector for the violation of section 75.400. The citation stated as

follows:

Loose coal was allowed to accumulate in excessive

amounts along the slope belt, from approximately 100 feet below the slope

collar to the bottom. These accumulations were in continuous windows along both

sides of the belt (the majority of instances were along the back side of the

belt), which ranged from 4” to 30” deep & from 16” to 72” wide, and

occasionally up to the full width of the belt. Additionally, the accumulations

were in contact with the moving belt and bottom rollers at the following

approximate locations: 570’ station; 1100’ station; 1900’ station; 2100’

station; 2200’ station; 2300’ station.

Sec’y Ex. 5.

In the context of this mine and the known

ongoing flooding problem due to the longwall, the examiner’s report notified

the operator and miners of the conditions cited in the first two sentences of

the citation. As understood by everyone at the mine and the majority, he

reported the nature and location of the hazard cited by the inspector — an

accumulation of mined material along the entire beltline.

The majority’s complaint is the failure of

the examiner to add language similar to the language the inspector added in the

fourth sentence of the citation — that is, the examiner did not expressly

identify discrete areas in which he should have seen mined material touching

the belt or rollers.

The plain words of the standard, our case

law, or the sound adjudication of the standard do not create a duty for an

examiner to break out certain areas of one hazard by the degree of danger or to

prioritize among a number of reported hazards by the degree of danger. Examiners

regularly note multiple separate hazards on one examination report. Some may be

S&S and others of far lesser danger.

Nothing in the standard requires the

examiner to identify a hazard that he might think is S&S, to opine on a

particular hazard within a group, or to opine on where abatement must start. An

examiner’s identification of a hazard is notice to miners but, importantly, it

also is notice to mine management of a hazard that management must address and

abate. It is not the examiner’s duty to prioritize abatement for management. In

fact, it is easy to see that in some circumstances, an effort by an examiner to

set abatement priorities actually might redound to the detriment of an overall

abatement effort because the examiner may not know the actual danger or

imminence of harm created among different hazards. The majority takes a unique

case and suggests an unworkable and potentially dangerous standard.

This is a textbook example of the maxim

“hard cases make bad law.” The majority looks at an unusual, to say the least, circumstance

of a 3,500-foot long accumulation. All agree that in this specific case, had

the examiner actually seen the beltline or rollers on the mined material, it

would have been beneficial for him to have reported such places in addition to

the hazard of the accumulations. Indeed, the examiner testified that if he had

seen mined material touching a belt he would have reported it. Tr. 230. That is

not the question. The question for us is a legal one: What does the standard

require? Based on a desire to advance safety, my colleagues interpret the

standard in a novel and unwarranted manner to impose a new obligation created

by them and not found in the language of the standard or in past enforcement activities.

One exceptional fact pattern should not lead to a skewed interpretation of a

general standard and certainly must not do so when the interpretation is

inconsistent with the plain terms of the standard. [29]

My colleagues essentially admit that a requirement

for identifying specific sub-locations or specific hazards within a group of

reported hazards would create ambiguities in the application and in enforcement

— that is, whether a particular location within a hazard or a particular hazard

within a group of hazards is sufficiently serious to require a subset record. Slip

op. at 13. This is one case. Perhaps the majority can gaze into a crystal ball

and foresee the full effect of its novel misinterpretation of this plain

standard in this narrow and atypical case. I cannot, other than to know that,

if applied, it will cause confusion, ambiguity, and errors, perhaps even

dangerous ones, in the prioritization and recording of hazards.

If MSHA, as the agency charged with

establishing safety policies, desires to mandate subset reports despite the

ambiguities such a rule would produce, MSHA may propose a mandatory standard. Such

a proposal would then be subject to public comment and refinement regarding the

workability and effect of such a standard. A blundering blunderbuss approach of

Commission rulemaking is not the proper or prudent means for rulemaking.

Here, the examiner did what the standard

requires. Based upon the plain language of section 75.363(b), the examination

report identified the nature of a hazard and its location.

I find

further difficulty with the majority’s rationale in this case. My colleagues

find that the mine examiner’s description of the accumulations as needing to be

cleaned to be insufficient under section 75.363(b), because it did not

explicitly identify locations where coal was touching the belt or rollers. Slip

op. at 10. They then go on to cite the regulatory preamble related to section

75.363(b) for MSHA’s recognition that “[a] record of all hazards found .

. . serves as a history of the types of conditions that can be expected in a

mine,” and conclude that “the purpose of the standard is frustrated when, as

here, the operator fails to include any identifying details in a recording.” Id .

at 12 (emphasis added) (alteration in original).

The Judge’s decision plainly explains why

the report did not mention the conditions the majority finds so important: the

mine examiner, Adams, did not observe the conditions. 38 FMSHRC at 2246. As the

preamble clearly states — not to mention the text of the standard itself — a

prerequisite to reporting a mine hazard with any degree of specificity

is to first observe the condition. Not surprisingly, the majority entirely

avoids explaining how Adams was to have reported on conditions he did not

observe. MSHA did not charge the operator with an inadequate inspection under

30 C.F.R. § 75.362. Instead, MSHA cited the operator for a violation it could not

have committed because no one disputes that the mine examiner did not “find”

the particular locations that are the gravamen of the majority decision. The

majority flees to the refuge of “reasonably prudent miner,” but even the most

prudent miner cannot report a hazard he did not see. Here, MSHA charged a

violation of a standard that, by its very terms, does not apply to the

examiner’s conduct. For that separate reason, the citation is invalid. [30]

Attempting to define the parameters of the reporting

requirement in a case where the examiner did not observe the specific points

the majority laments makes no sense on its face, and thus greatly undercuts any

precedent the majority may believe it is setting. For that reason and the plain

language of the standard, I cannot join in the majority opinion and dissent

from the finding of a violation.

I find it necessary to go even further. The majority

does not attempt to identify any discernable standard or set forth meaningful

guidance for when a mine examiner should report more than the nature and

location of a hazard. Instead, the majority waves its collective hand and says

only that any required specificity “may vary based on context.” Slip op. at 13.

The majority’s inability to articulate

the meaning of their decision serves to emphasize the importance of proposing a

clear standard, accepting public comments, and finalizing an understandable

standard.

Their comment that the meaning of the

decision is unclear demonstrates the lack of fair notice to this operator of a

purported obligation to report particular sub-locations within a hazard. The

issue of fair notice is determined under an objective standard of whether a

reasonably prudent person familiar with the mining industry and the protective

purposes of the standard would have recognized the specific prohibition or

requirement of the standard. Ideal Cement Co. , 12 FMSHRC 2409,

2416 (Nov. 1990); Hecla Ltd. , 38 FMSHRC 2117, 2121-26 (Aug.

2016).

In Hecla , the Commission considered

the imposition of a requirement for some sort of geomechanical testing. The

theory was novel: MSHA had never required such testing under the cited

standard. Although the Commission majority accepted the interpretation, it

found the operator lacked fair notice, stating:

Because the standard had consistently been applied in

a more limited fashion, we hold that a reasonably prudent person familiar with

the mining industry would not have known that the examination and testing

requirement in section 57.3401 might demand a geomechanical or engineering

analysis.

Hecla , 38 FMSHRC at 2125. [31]

The fair notice question here is whether a

reasonably prudent person familiar with the mining industry would have

recognized a requirement that a report identifying an accumulation hazard along

the entire length of a beltline had a regulatory obligation to go further and

specify particular sub-locations within the hazard that an MSHA inspector later

identifies as more serious. 

Nothing in the language of the standard,

MSHA advisories, or our case law suggests a requirement that a record that

identifies the nature and location of a hazard must go further and comment upon

particular sub-locations within the hazard. The language of the standard would

not give any clue as to how much more serious a sub-location would have to be

to require specific reporting. There is no reason why a reasonable person who reported

the nature and location of a hazard could know he/she was required to do more. Consequently,

I also disagree with and dissent from my colleagues’ finding regarding the fair

notice issue. I would find that the operator, in this case, did not have fair

notice of any requirement to note sub-locations within a hazard.

The majority itself does not discuss how

much “more hazardous” a sub-location must be to require separate reporting. Neither

I nor anyone else knows whether the majority decision for the reporting of

sub-locations is dependent upon the sub-locations being S&S as compared to

the remainder of the identified hazard. [32]

Whether a condition is S&S is more

complex than whether it is a hazard. The S&S determination requires an evaluation

of the four factors of Mathies / Newtown . The majority, for

example, does not consider the effect of a good faith objectively reasonable

belief that a particular sub-location was not S&S (or “more dangerous”)

upon an alleged section 75.363(b) violation for not identifying a sub-location

within a properly recorded hazard. (Of course, as noted above, obligations

under section 75.363(b) come into play only if an examiner sees a hazard.)

In the event of another set of highly

atypical facts, I do not see how other operators will have notice of the scope

of any obligation to go beyond the long-accepted scope of section 75.363(b) and

the examiner’s view of the hazard as he/she finds it. The majority decision

does not recognize or discuss that an operator’s mine examiner may well have an

objectively reasonable good faith belief that the particular location does not

create a significantly greater hazard than another location. Does such an

objectively reasonable belief constitute a defense to a violation alleging a

failure to identify some subset hazard within the legally reported hazard?

In this case, for example, significant

testimony supported the proposition that the violation was not reasonably

likely to cause a significant danger due to the composition of the material,

continuing flood of water, ongoing abatement, etc. Although the examiner

rightly said he would have reported any areas of rubbing as such rubbing is

undesirable from a safety and a maintenance standpoint, neither he nor other

miners thought the rubbing created a reasonable likelihood of ignition. There

certainly was sufficient evidence to support a finding that the operator had an

objectively reasonable belief that the accumulation was not reasonably likely

to ignite before the ongoing abatement reached the area. The majority’s

overzealous willingness to interpret a plain and effective substantive rule in

an overbroad manner, without a full discussion of the dimensions or

understanding of their decision, is deeply troubling.

Conclusion

In my view, the Commission makes a

policy-based decision to find an obligation not present in the plain words of

the standard and of which the operator did not have fair notice. Further, it

fails to define in a comprehensible manner the contours of this purported

obligation enforced through governmental fines. I respectfully dissent.

/s/

William I. Althen

William

I. Althen, Acting Chairman

[1]

Mach did not contest before the Judge that it

violated section 75.400. 

[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] Specifically, at 100 feet inby Inspector Reynolds

observed accumulations measuring about 12 inches deep. Tr. 65. At 200 feet, he

observed coal measuring approximately 14 inches deep and at 250 feet, about 16

inches. Tr. 66. At 570 feet, coal up to 30 inches deep was contacting three

idle rollers. Tr. 69-70, 72. From 650 feet to 1050 feet, accumulations were

eight to 20 inches deep. Tr. 79. In addition, there were three hot bottom

roller brackets. Tr. 74. At 1100 feet, about 50 feet of the belt and five

rollers were running in coal. Tr. 80. Reynolds testified that he saw dust in

the air near this location, which led him to believe that the area was fairly

dry. Tr. 82-84. From 1600 feet to approximately 2000 feet, 15 feet of belt and

two rollers were turning in coal. Tr. 87-88. From 2000 to 2200 feet, accumulations

up to 30 inches deep were contacting two rollers and ten feet of belt. Tr. 88. At

2300 feet, a roller and ten feet of belt were turning in accumulations. Tr. 89.

At the bottom portion of the belt accumulations ranged up to 24 inches deep. Tr.

90.

[4]

Guy Webster likened the occurrence of a

“washback” to the occurrence of “a small tsunami.” Tr. 290, 300.

[5] Commissioners Jordan and Cohen reiterate their belief

that the proper standard of proof under Mathies Step 2 is an “at least somewhat

likely” standard. See Newtown, 38 FMSHRC at 2051-53 (Comm’rs Jordan and

Cohen concurring in part and dissenting in part). In contrast, Commissioner

Young believes that Newtown was correctly decided.

[6]

The Judge repeatedly stated that the Secretary

demonstrated that “the accumulations were reasonably likely to ignite” and,

accordingly, concluded that the violation contributed to the hazard of a belt

fire. 38 FMSHRC at 2242; see also id . at 2243 (“ignition would likely

result”) (“the reasonable likelihood of an ignition risk remained”). Accordingly,

his Mathies Step 2 analysis was consistent with Newtown , 38

FMSHRC at 2033.  

[7] The Commission requires that “[a] judge must analyze

and weigh the relevant testimony of record, make appropriate findings, and

explain the reasons for his decision.” Mid-Continent Res., Inc ., 16

FMSHRC 1218, 1222 (Jun. 1994). 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). “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)).

[8] Acting Chairman Althen joins the majority in

concluding that the Judge’s decision on S&S is supported by substantial

evidence.

[9] Further, some of the coal was indeed dry, as shown by

the inspector’s testimony that he saw coal dust in the air at the transfer

point of the belt. Tr. 81-85.

[10] “Whenever the Secretary finds that a coal . . . mine

liberates excessive quantities of methane . . . or that a methane or other gas

ignition or explosion has occurred in such mine which resulted in death or

serious injury at any time during the previous five years, or that there exists

in such mine some other especially hazardous condition, he shall provide a

minimum of one spot inspection by his authorized representative of all or part

of such mine during every five working days at irregular intervals.” 30 U.S.C.

§ 813(i).

[11] Acting Chairman Althen joins the majority in

affirming the decision of the Judge with respect to negligence.

[12] The Commission has recognized that a Judge’s

credibility determinations are entitled to great weight and may not be

overturned lightly. Farmer v. Island Creek Coal Co ., 14 FMSHRC 1537,

1541 (Sep. 1992); Penn Allegh Coal Co ., 3 FMSRHC 2767, 2770 (Dec. 1981).

[13] The standard states that:

A

record shall be made of any hazardous condition and any violation of the nine

mandatory health or safety standards found by the mine examiner . . . . The

record shall be made by the completion of the shift on which the hazardous

condition or violation of the nine mandatory health or safety standards is

found and shall include the nature and location of the hazardous condition

or violation and the corrective action taken . . . .

30 C.F.R. § 75.363(b) (emphasis added).

[14] 30 C.F.R. § 56.18002(a) provides that “[a] competent

person designated by the operator shall examine each working place at least

once each shift for conditions which may adversely affect safety or health. The

operator shall promptly initiate appropriate action to correct such

conditions.”

[15] In Sunbelt , we emphatically rejected the

notion that an “operator must only examine the workplace to a standard of care

slightly surpassing not conducting the examination at all.” 38 FMSHRC at 1625. Similarly,

we reject the operator’s argument here that its examination notation need only

slightly surpass not writing down anything at all.  

Our dissenting

colleague’s effort to distinguish Sunbelt is unavailing. Both cases

involve broadly worded examination standards which can be applied more

meaningfully by the use of the “reasonably prudent miner” test. Chairman

Althen’s attempt to distinguish Sunbelt stems from the fundamentally

different way in which he views the case before us. We apply the reasonably

prudent miner standard to provide clarification and guidance for the terms

“nature and location of the hazardous condition” — language we consider part of

a broadly worded standard. He finds section 75.363(b) “plain” and “clear,” and

consequently is satisfied that along the entire beltline” sufficiently defines

the location of the hazardous condition. Slip op. at 20.

Acting Chairman Althen

distinguishes Sunbelt in other ways, but we fail to find the differences

he identifies relevant to the question of whether the reasonably prudent miner

test should be applied. First, he asserts that the standard at issue in Sunbelt

did not involve the record of an examination. He states that it involved

the competence of the examiner. We read the case to involve the quality

of the examination. See Sunbelt Rentals , 38 FMSHRC at 1627, 1627 n.18. Despite

our colleague’s concerns, for the purpose of deciding whether the reasonably

prudent miner test is applicable to an examination standard, it doesn’t matter

whether the issue is the quality of the examination, the competence of the examination,

or the specificity of the examination report. See id. (relying on FMC

Wyoming Corp ., 11 FMSHRC 1622 (Sept. 1989), as a basis for the use of the

reasonably prudent miner test, even though the issue in FMC Wyoming was

the competence of the examiner rather than the quality of the examination). Rather,

all of these concepts are found in examination standards that are, in our view,

“drafted in general terms in order to be broadly adaptable to the varying

circumstances of a mine.” Id. , (quoting FMC Wyoming Corp ., 11

FMSHRC at 1629). It is therefore appropriate to apply the reasonably prudent

miner test to all of them.

The similarity between

the standard at issue in Sunbelt and the standard in this case also

overrides the other distinction Acting Chairman Althen identifies (that the Sunbelt

standard governed metal and nonmetal mines while the standard here involves an

underground mine, which is the subject of more numerous regulations).

[16] The dissent contends that construing the standard as

we have “will cause confusion, ambiguity, and errors, perhaps even dangerous

ones, in the prioritization and recording of hazards.’” Slip op. at 23. However,

the standard requires that examiners note the “location” of hazards. Furthermore,

we believe the “dangerous errors” our colleague fears are less likely to be

made when an examiner notes the location of hazards than when — as here — the

examiner ignores mention of six hazardous areas over a 3,500 foot belt line,

resulting in the clean-up crew not prioritizing the areas of greatest hazards.

[17] We understand that “needs cleaned” is a reference to

the presence of coal accumulations. However, like the inspector, we conclude

that merely reporting the presence of coal accumulations was insufficiently

descriptive to comply with the safety standard’s reporting requirements in this

instance. See Tr. 140-41. This is especially true in light of the

context here: The belt being referenced was nearly two-thirds of a mile long. Slip

op. at 2. The inspector noted six discreet locations where the accumulations

had grown so deep that they were in contact with the belt and its components

along 105 feet of beltline. Id . at 2, 5. Further, Mach had been aware

for years — since 2011 — that the belt was prone to “washbacks” that created a

chronic accumulations problem. Id . at 7.

We agree that in some

contexts, “needs cleaned” might be an adequate description. But the area in

question here is so large, and the nature of the accumulations so dangerous in

certain discreet locations, that the rote invocation “needs cleaned” is

practically meaningless. The ineffectiveness of this communication is evinced

by the fact that the operator did nothing to indicate that it was prioritizing

the clean-up of accumulations that posed the greatest threat, i.e., there was

no plan in place to comprehensively address a problem that was only abated by

more than a score of miners working over three days.  

[18] We note the marked difference between the location

written in this examination notation (“slope [belt]”) and the locations

described in the July 9 and July 10 examinations (“rollers from 3 to 8” and “7A

flowthrough”). R. Ex. 2.

[19] See, e.g ., Rosebud Mining Co ., 34

FMSHRC 2734, 2755-56 (Oct. 2012) (ALJ Andrews) (“The Secretary argues that the

[recording] violation is S&S because . . . miners were exposed to potential

hazards that would have been discovered by examinations; that oncoming shifts

rely on examination books to prepare for hazards . . . . The designation of

S&S was found correct . . . . The miners were not alerted in advance, and

were unnecessarily exposed to danger.”); Big Ridge, Inc ., 33 FMSHRC 689,

713 (Mar. 2011) (ALJ Miller) (“[M]iners rely on the preshift examiner to look

for hazardous conditions prior to their entry into the mine. Relying upon an

inadequate examination may engender a false sense of security and cause the

miners to pay less attention to their surroundings as they travel the

roadway.”); Consolidation Coal Co ., 21 FMSHRC 1404, 1408 (Dec. 1999)

(ALJ Melick) (“By not reporting the hazardous accumulations of coal in the

preshift book, the miners on the day shift were not placed on notice of these

hazardous conditions . . . .).

[20]

As part of its negligence argument, Mach

attempts to demonstrate that the Judge failed

to consider mitigating circumstances justifying a

lower degree of negligence in accordance with the Secretary’s Part 100

definitions. See, e.g ., 30 C.F.R. § 100.3(d) (“High negligence — The

operator knew or should have known of the violative condition or practice, and

there are no mitigating circumstances.”). However, the Commission is not bound

by the Secretary’s Part 100 definitions of degrees of negligence. Brody

Mining, LLC , 37 FMSHRC 1687, 1701-03 (Aug. 2015); Mach Mining, LLC

v. Sec’y of Labor , 809 F.3d 1259, 1264 (D.C. Cir. 2016) (The Commission

evaluates the degree of negligence using “a traditional negligence analysis.”).

Accordingly, the Judge may assess negligence as “high” despite a demonstration

of some mitigating circumstances. Id .

[21] As previously mentioned, a July 9 day shift entry

reads: “Need to clean under rollers from 3 to 8” and a July 10 examination

record for a belt reads: “Need to clean 7A flowthrough.”

[22] I concur in the finding of high negligence. Although

the operator was addressing the problem of substantial accumulations along the

slope belt, the accumulations were a known and ongoing problem. The operator

did not devote sufficient efforts to prevent significant accumulations along

the entire 3,500-foot belt on the morning of the citation.

[23] Although the Commission’s standard of S&S

determinations is not an issue in this case, in footnote 5 Commissioners Jordan

and Cohen express continuing dissent from the Commission’s decision in Newtown

Energy, Inc. , 38 FMSHRC 2033 (Aug. 2016). In Newtown Energy , the

Commission announced an authoritative and binding rule for making S&S

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

(2) based upon the particular facts surrounding the violation, is there 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, is the occurrence of that hazard reasonably likely

to result in an injury; and (4) is any resultant injury reasonably likely to be

reasonably serious. Id. at 2038-39. This standard, which resolved

confusion that had arisen regarding the relationship between steps two and

three of the venerable Mathies standard, now governs all S&S

determinations.

[24] Although MSHA cited the conditions as S&S, it did

not require a shutdown of the belt during abatement.

[25] The majority finds that “58 violations in a 15-month

period is enough to put a reasonable mine operator on notice that greater

efforts to comply with the standard were required.” Slip op. at 8. According to

MSHA records introduced as Sec’y Ex. 2, 58 citations for violation of section

75.400 at the subject mine became final in the months between December 12, 2012

and July 28, 2014. According to other MSHA records, in the calendar year in

which this accumulation violation occurred (2014), the Mach No. 1 mine produced

6,482,276 tons of underground coal that was about 1.8% of the total underground

coal production in 2014 of 354,709,128 tons. Compare data from

MSHA, Mine Data Retrieval System , https://arlweb.msha.gov/drs/drshome.htm (Jan. 17, 2018) with MSHA, Coal

Production ,

https://www.msha.gov/sites/default/files/Data_Reports/DEC_15_2016_Historical_MIWQ_Employment_and_Production.pdf (page three) (Jan. 17, 2018).

In

2014, MSHA issued 4,938 citations for violations of section 75.400. MSHA, Most

Frequently Cited Standards by Mine Type ,

https://arlweb.msha.gov/stats/top20viols/ top20home.asp (Jan. 9, 2018). Fifty-eight

violations is 1.2% of 4,938. Although the periods do not match exactly, it is

clear that this mine was doing better than average. I note this fact to express

my doubts regarding the usefulness of raw numbers standing alone in MSHA

adjudications. Perhaps it is understandable for general circulation newspapers

that may be unfamiliar with the intensity of inspections and vast number of

citations issued annually to castigate operators based upon raw numbers of

violations. It is another thing for knowledgeable persons to use raw numbers to

draw important and perhaps outcome-determinative conclusions. I disagree with

use of an unexamined raw number of violations without consideration of the

mine’s size, its history of violations relative to industrywide performance,

and many other circumstances surrounding the previous violations that may be

gleaned from the regulatory record.

[26] The Judge did not base his decision on a purported

failure to report a purported 1/8 inch cut in a support beam.

[27] In an attempt to bolster their one citation to Sunbelt ,

my colleagues assert that the operator, and presumably by reference this

dissent, argues that the examination record need only surpass not writing down

anything. Slip op. at 11 n.15. Obviously, that is incorrect. To comply with

section 75.363(b) an examiner must do exactly what the standard requires —

namely, write down any hazardous condition he finds. That is what the examiner

did here. Starting with their incorrect premise, the majority then posits a

false symmetry between the standard at issue in Sunbelt ( 30 C.F.R. § 56.18002(a) ) and the standard at issue here, 30 C.F.R. § 75.363(b). In Sunbelt ,

the administrative law judge found that an examination by a “competent”

examiner did not require that the examination even be “adequate.” 38 FMSHRC at

1619. Effectively, that meant the requirement for a “competent” examiner had no

meaning. The Commission’s decision gave meaning to an otherwise empty standard,

but that decision does not inform this

decision. Section 75.363(b) is plain, requiring that “[a] record shall be made

of any hazardous condition . . . found by the mine examiner.” There is no similarity

between the two standards regarding ambiguity or correcting the nugatory

interpretation of the competent examiner standard in Sunbelt . The

majority does not stop with that incorrect assertion but goes on to state that

section 75.363(b) must be broadly adaptable to varying circumstances in the

mine. Slip op. at 11 n.15. They find no settled meaning to this decades-old

standard and, to them, its meaning may vary from circumstance to circumstance. This

further illustrates the confusion and mischief that would result from the

attachment of any importance to the majority’s erroneous and sui generis

interpretation in this case.

[28] Due to the unique facts of this case, the majority’s

opinion appears to be one of those occasional decisions that, at first glance

appears possibly significant, but that is so wholly an outlier as to fade

quickly from memory. It is a letter written on the wet sand of an ocean

shoreline. Seen for a moment, then swept away by tide and time.

[29]

The majority’s desire to enhance safety is

understandable but inconsistent with the duty to apply the words of a standard

as they are written rather than as we might wish they were written for purposes

of a particular case. Perhaps judicial restraint is even more difficult in

safety cases than in cases in which courts have been constrained to permit

grossly repugnant activities such as the protests at funerals for slain service

members or KKK marches through American cities. Nonetheless, we should remain

mindful of and faithful to the words of the inestimable Justice Cardozo:

The

judge, even when he is free, is still not wholly free. He is not to innovate at

pleasure. He is not a knight-errant, roaming at will in pursuit of his own

ideal of beauty or of goodness. He is to draw his inspiration from consecrated

principles. He is not to yield to spasmodic sentiment, to vague and unregulated

benevolence. He is to exercise a discretion informed by tradition, methodized

by analogy, disciplined by system, and subordinated to “the primordial

necessity of order in the social life.” Wide enough in all conscience is the

field of discretion that remains.

Benjamin

N. Cardozo, The Nature of the Judicial Process 141 (1921).

[30] The Judge concluded that during his examination Adams

should have seen at least the contact between the misaligned belt and

the steel I-beam. 38 FMSHRC at 2246. If the Secretary established that, it may

have constituted a violation of separate standards, sections 75.362(a) and (b)

(requiring that an examiner “check for hazardous conditions,” including “along

each belt conveyor haulageway where a belt conveyor is operated” and for

“accumulations of combustible materials”). The inspector, however, did not cite

the operator for an inadequate examination and the Secretary did not present

any issue under sections 75.362(a) and (b). Finally, section 75.363(a) is not

just a specific restatement of section 75.362(a) as my colleagues suggest. Slip

op. at 15. It is a different section with a distinct and different duty. Surely,

failure to report a found hazard is different from not finding the hazard in

the first place. The inspector cited the wrong standard because he faults the

examiner for not reporting “found” conditions that the examiner actually did

not find. The Judge and majority assume that, despite the ongoing dynamics of a

continuously flooding running belt, the conditions must have existed in the

same locations and to the same extent as when the examiner passed through the

area hours ahead of the inspector. However, what the inspector saw sheds no

light on what the examiner actually found. Because the Judge did not discredit

the examiner’s testimony that he did not find any instances of a rubbing belt

or rollers, there is no basis to find a violation of section 75.363(b).

[31]

Hecla

is another case where sui generis facts resulted in a strained, policy-driven

interpretation. At least there, however, the majority recognized that the

operator did not have fair notice that the Commission could arrive at the

strained interpretation it adopted.

[32] I assume that if the Judge in this case had found the

separate locations did not make the section 75.400 violation S&S, he would

not, or at least should not, have found a violation for not separately

reporting such places. However, I readily admit this is an assumption, and the

majority, having decided to create a new, ambiguous, factually limited policy

out of whole cloth, may disagree.