Secretary of Labor v. Musser Engineering, Inc., and PBS Coals, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

The case followed the Quecreek Mine inundation, in which nine miners were trapped for 77 hours after mine workings broke into a flooded abandoned mine. The Commission unanimously affirmed that PBS Coals violated the mine-mapping standard by failing to maintain an accurate map of adjacent workings and upheld the S&S designation. A majority also upheld the finding that PBS was grossly negligent because it relied on an undated, uncertified map despite the risk posed by the flooded mine. The Commission vacated PBS's $55,000 penalty and remanded for findings on business size and ability to continue in business because earlier stipulations assumed a $5,000 penalty. A majority vacated the citation against Musser Engineering, concluding that its state permit map work was too attenuated from preparation and submission of the federal mine map, although the Commission agreed Musser qualified as an operator under the Mine Act. Separate opinions disagreed over Musser's liability and PBS's negligence.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1200
• Outcome: PBS's S&S violation and gross-negligence finding were affirmed, its penalty was vacated and remanded, and Musser's citation was vacated.
• Key point: A mine operator is strictly liable for an inaccurate map of adjacent workings, but an engineering contractor needs sufficient control over the regulated map to be liable for that violation.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

October 28, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MUSSER ENGINEERING, INC., and PBS COALS, INC.

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Docket No. PENN 2004-152

A.C. No. 36-08746-2647

Docket No. PENN 2004-158

A.C. No. 36-08746-26477

BEFORE: Jordan, Chairman; Duffy and Cohen, Commissioners

DECISION

BY: Cohen, Commissioner

This consolidated civil penalty proceeding, arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), involves citations
issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) against
PBS Coals, Inc. (“PBS”) and Musser Engineering, Inc. (“Musser”). The citations were the result
of a July 2002 near-fatal, 77-hour entrapment of nine miners at the Quecreek No. 1 Mine.

In
response to cross motions for summary decision, Chief Administrative Law Judge Robert J.
Lesnick affirmed the citations against PBS and Musser and ordered a hearing on proposed
penalties. 28 FMSHRC 699, 718-19 (Jul. 2006) (ALJ).

In a subsequent decision, the Chief
Judge concluded that Musser and PBS acted in a grossly negligent manner, determined that the
violations were significant and substantial (“S&S”), and imposed the maximum penalties
allowed by the Mine Act. 30 FMSHRC 1087, 1095-96 (Nov. 2008) (ALJ). PBS and Musser
filed petitions to review the judge’s decisions, and the Commission granted both petitions. For
the reasons that follow, we affirm, in part, and vacate and remand, in part, the judge’s decisions.

I.

Factual and Procedural Background

A.        The Mine Inundation

Beginning in 2001, Black Wolf Coal Company, Inc. (“Black Wolf”) operated the
Quecreek No. 1 Mine, an underground coal mine in Somerset County, Pennsylvania.
28 FMSHRC at 700-01; Stip. 23. Black Wolf employed 61 miners, 55 of whom worked
underground. 28 FMSHRC at 700-01; Stip. 24. The mains, which consisted of seven entries,
were driven down dip (at a lower elevation level) from the portals, and coal was produced in the
1-Left and 2-Left sections. 28 FMSHRC at 701; Stips. 16, 18. Mining was conducted by use of
remote-controlled continuous mining machines that loaded coal directly into electrically operated
shuttle cars, which carried the coal to a conveyor belt for transport out of the mine. Stip. 19.

On July 24, 2002, at 8:45 p.m., miners working in the 1-Left section broke through the
working face into the room of an abandoned coal mine known as the Harrison No. 2 Mine.
28 FMSHRC at 701. The breakthrough resulted in a serious inundation of water from the
Harrison No. 2 Mine, which was located up dip (at a higher elevation) from the Quecreek No. 1
Mine. Id. Nine miners were able to escape by wading through chest-high water and changing
their route several times when they encountered impassable areas, while nine other miners were
trapped underground. Id.; Tr. 393. Although the trapped miners retreated to the highest possible
elevation and attempted to build a barricade against the rising water, the flooding reached a
height of four feet at their last refuge point. Tr. 395-96. In addition to the hazard of drowning,
the trapped miners suffered hypothermia and difficulty breathing as a result of low oxygen
content in the atmosphere. Tr. 397. The nine miners wrote last notes to their loved ones, which
they placed in a waterproof container, and tied themselves together so that when they were at last
overtaken by the water, they would be found together. Tr. 396. The nine trapped miners were
ultimately rescued, following dramatic rescue efforts over a four-day period. 28 FMSHRC
at 701.

B.        Events Leading to the Permitting of the Quecreek Mine

Prior to the opening of a mine in Pennsylvania, a mine operator must apply for permits
from state and federal authorities. Id. For the Quecreek No. 1 Mine, beginning in 1994, the
Double C Coal Company (“Double C”) initiated the application process with the Pennsylvania
Department of Environmental Protection (DEP). Id. PBS subsequently acquired the Quecreek
Mine No. 1 from Double C

and contracted with Musser to prepare a permit application for
submission to DEP. Id.

Pennsylvania state law requires that operators must survey the workings of their mines
and create accurate maps of their mines with accurate boundaries of adjoining mines. Id. at 702;
Stip. 34. In addition, an engineer must certify the map. 28 FMSHRC at 702. There were a total
of four abandoned coal mines around the Quecreek permit area, including Harrison No. 2 Mine.
Tr. 249. The Harrison No. 2 Mine was located in the same coal seam and immediately up dip
from the Quecreek No. 1 Mine boundary. 28 FMSHRC at 702. Part of Musser’s work in
preparing the permit application was researching and showing the location of these abandoned
mine works adjacent to the planned Quecreek No. 1 Mine. 28 FMSHRC at 701-02; Stip. 12.

Prior to the closing of the Harrison No. 2 Mine, which began operating in 1913, Consol
Energy, Inc. (“Consol”) had purchased the mine’s coal reserves. 28 FMSHRC at 702; Stip. 28.
Consol leased the coal reserves to Saxman Coal and Coke Company (“Saxman”), which operated
the mine. 28 FMSHRC at 702; Stip. 48. Saxman provided updated mine maps of the Harrison
No. 2 Mine to Consol on a biannual basis. 28 FMSHRC at 702. When the mine was closed in
1963, Saxman was required to supply a final mine map to the state of Pennsylvania. Id. After
the mine was closed, it was abandoned and sealed and became flooded. Id. Consequently,
during the state permitting process for the Quecreek No. 1 Mine, the Harrison No. 2 Mine could
not be surveyed. Id. These circumstances led both Musser and PBS to conduct searches for
maps of the Harrison No. 2 Mine. Id.

Although records indicated that the superintendent of the Harrison No. 2 Mine supplied
final mine closing information and a final mine map to state authorities, the DEP did not have a
final mine map in its archives when the Quecreek No. 1 Mine was planned and permitted. Id. at

703. Indeed, none of the four abandoned mines surrounding the Quecreek mine had final
     certified maps that were used in preparing the permit application for Quecreek. Tr. 249. Musser
     and PBS tried over a multi-year period to locate maps of the Harrison No. 2 Mine through visits
     to state and federal governmental offices and by contacting individuals connected to the mine.
     28 FMSHRC at 702-03. For instance, PBS and Musser located a map of the Harrison No. 2
     Mine at the Department of Interior’s Office of Surface Mining (“OSM”) office in Greentree,
     Pennsylvania (“the Greentree map”). Id. at 703. The Greentree map was not dated nor marked
     final, but it was the most current map of the mine that could be located at the state or federal
     mine map repositories. Id.; see Gov’t Ex. 9; Stips 63, 64, and Jt. Ex. 3-4 (these copies of the
     Greentree map are dated; the original copy that Musser and PBS obtained is not).

In addition, PBS personnel reviewed maps at an MSHA district office and two DEP
offices. Stips. 59, 60. Musser employees also retrieved maps from DEP offices. Stip. 61. Many
of the maps that PBS and Musser uncovered were older ones and not useful for drawing the final
boundaries of the Harrison No. 2 Mine on the Quecreek No. 1 Mine permit application maps.
28 FMSHRC at 703.

Musser contacted Consol because it had owned the coal reserves at the Harrison No. 2
Mine. Musser expected that Consol would have had accurate maps of the coal removed from the
mine for purposes of checking its royalties. Id. A Consol employee at its facility in Library,
Pennsylvania, located a map of the Harrison No. 2 Mine and provided a copy to Musser. Id.;
Stip. 65. The map proved to be inaccurate because it showed coal reserves that had been mined.
30 FMSHRC at 1089; Tr. 44-46. Musser and PBS subsequently obtained a second map from
Consol. 30 FMSHRC at 1089; 28 FMSHRC at 703. This map was neither dated, certified by an
engineer, nor marked final. Id. This second Consol map showed the most extensive workings of
the Harrison No. 2 Mine of any map located and was accepted as the final map. Id.

Musser, with the concurrence of PBS, used the second Consol map, Gov’t Ex. 3, to draw
in the boundaries of the Harrison No. 2 Mine on the Quecreek permit map. 30 FMSHRC at
1089; 28 FMSHRC at 703. The Harrison No. 2 Mine boundary on the permit map determined
the extent of the development of the Quecreek No. 1 Mine, the limit of which was a 200-foot
“hydraulic” barrier when there was an unsurveyed adjacent mine. 30 FMSHRC at 1089; 28
FMSHRC at 715; Tr. 653. Musser engineer Ed Secor certified the permit map. 28 FMSHRC at
703; see Gov’t Ex. 5.

On February 28, 1998, the permit application for the Quecreek No. 1 Mine was submitted
to the DEP. 28 FMSHRC at 701. During the DEP review of the application, DEP staff members
conducted their own search for mine maps to confirm the accuracy of the mine map submitted
with the application. Stip. 64. The most current map of the Harrison No. 2 Mine that could be
located at the state and federal repositories was the Greentree map. Id. Based on the application
prepared by Musser and submitted by PBS, including the mine map with the Harrison No. 2
Mine boundaries as reflected in the second Consol map, the DEP issued a permit for the
Quecreek No. 1 Mine on March 13, 1999. 28 FMSHRC at 701; Stip. 73.

Once Musser engineer Secor certified the state permit map, all further maps created
during the permitting process accepted the information (such as the boundary of the Harrison No.
2 Mine) on the prior sealed maps as complete. Stip. 87. The Musser permit map, including the
placement of the Harrison No. 2 Mine and the established 200-foot hydraulic barrier, was used as
the basis for maps submitted to MSHA, including the mine map required under 30 C.F.R.
§ 75.1200. 30 FMSHRC at 1089; Tr. 591-97.

C.        The MSHA Investigation and Subsequent Citations

After the breakthrough from the Quecreek Mine into the Harrison No. 2 Mine, MSHA
conducted a search for Harrison mine maps. Stip. 77. It was determined that the second Consol
map, upon which Musser had relied in drawing on the permit map the boundaries of the Harrison
No. 2 Mine, was not a final map and showed mining only through approximately 1961, while
mining operations had continued through 1963. Stip. 67.

During MSHA’s investigation, it was also ascertained that the Greentree map of the
Harrison No. 2 Mine that appeared to be the most recent map filed with state or federal
authorities prior to its closing, was actually a map from 1957. Stip. 78. Due to a filing error at
OSM, a portion of the map that had a date of 1957 on it was not supplied to PBS and Musser
when they obtained the Greentree map. 28 FMSHRC at 703. See Stips. 63, 78-81.

In determining whether the operator of the Harrison No. 2 Mine complied with state law
in submitting a final mine map,

MSHA identified John Kimmel as the superintendent and
engineer for Saxman at the Harrison Mine. 28 FMSHRC at 703. Records indicated that Kimmel
had submitted final mine maps for other mines in the area when they closed. Id. However, the
Commonwealth of Pennsylvania had no record of a final mine map for the Harrison No. 2 Mine.
Id.

In August 2002, MSHA discovered a final mine map at a museum, the Windber Coal
Heritage Center. Id. at 703-04. MSHA investigators traveled to the museum and went to the
museum’s attic to examine old un-cataloged maps. Stip. 86. The family of a deceased
Pennsylvania mine inspector, C.H. Maize, who had inspected the Harrison No. 2 Mine, had
donated a map in his possession to the museum in June 2002. Stip. 84. The map was not
available to the public prior to July 24, 2002, the date of the Quecreek inundation. Stip. 86.
A note on the outside of the map indicated that it was the “final” mine map, and it had a date of
1964. Stip. 82. This map (“the Windber map”) was the final mine map presented by Saxman to
the state, and it was signed and dated by state inspector Maize. Stips. 82, 86; PBS Ex. 19.
However, the Windber map was not certified by a surveyor or engineer, as required by state law,
and the map did not show mining in the room at the Harrison No. 2 Mine where the breakthrough
from the Quecreek No. 1 Mine had occurred. 28 FMSHRC at 704. MSHA investigators never
located a final certified map of the Harrison No. 2 Mine nor any map that showed mining in the
Harrison No. 2 Mine where the actual breakthrough occurred. Id.

A second mine map that was identical to the Windber map was located after the
conclusion of MSHA’s investigation. This map was found in the storage area in an attorney’s
office at Consol. Stips. 99, 102. The box containing the map was marked with the name of an
environmental matter under investigation by the U. S. Environmental Protection Agency.
Stip. 102. The map was not cataloged and had been placed in the storage area in the mid-1990’s.
Stips. 101-02. During a review of the stored boxes for possible donation to an educational
institution, documents relating to Quecreek were discovered, and MSHA was contacted.
Stips. 103-04. In July 2004, MSHA examined the contents of the box and located a map
identical to the Windber map, along with a letter from state inspector Maize reminding Saxman
of its obligation under state law to supply a final mine map 60 days after mine closure.
Stips. 105-07.

At the completion of its investigation, on August 12, 2003, MSHA issued citations to
Black Wolf, Musser, and PBS that charged each with violating 30 C.F.R. § 75.1200. That
section provides:

The operator of a coal mine shall have in a fireproof repository
located in an area on the surface of the mine chosen by the mine
operator to minimize the danger of destruction by fire or other
hazard, an accurate and up-to-date map of such mine drawn on
scale. Such map shall show:

(a) The active workings;

(b) All pillared, worked out, and abandoned areas, except as
provided in this section;

(c) Entries and aircourses with the direction of airflow
indicated by arrows;

(d) Contour lines of all elevations;

(e) Elevations of all main and cross or side entries;

(f) Dip of the coalbed;

(g) Escapeways;

(h) Adjacent mine workings within 1,000 feet;

(i) Mines above or below;

(j) Water pools above; and

(k) Either producing or abandoned oil and gas wells located
within 500 feet of such mine and any underground area of such
mine; and

(l) Such other information as the Secretary may require.
Such map shall identify those areas of the mine which have been
pillared, worked out, or abandoned, which are inaccessible or
cannot be entered safely and on which no information is available.

30 C.F.R. § 75.1200 (emphases added).

In substantially similar citations, MSHA charged Musser and PBS with violating the
standard because the workings of the Harrison No. 2 Mine “were not accurately and completely
shown on the mine map.” The citations further specified that the operator’s mine map showed
the Harrison No. 2 Mine to be 450 feet away from where the breakthrough occurred and “the
primary cause of the accident was the use of an undated and uncertified mine map of the
Harrison No. 2 Mine that did not show the complete and final mine workings.” The citations
further stated that Musser and PBS had improperly relied on the second Consol map as the most
up-to-date map even though it was not dated or represented as a final map. Finally, the citations
stated that, even though the Windber map would not have been available to Musser, “other
information . . . would indicate that the boundaries used were questionable.” The citations
specified that the violations were S&S; that the gravity of the violations was high; and that PBS
and Musser were moderately negligent. Docket Nos. PENN 2004-152 and PENN 2004-158,
Pets. for Assessment of Civ. Pen. (Exs. A, citations dated Aug. 12, 2003). The Secretary
proposed penalties of $5,000 each against PBS and Musser. Id.

PBS and Musser filed notices of contests, and the case was assigned to the Chief Judge.
In response to motions for summary decision from the Secretary, PBS, and Musser, the judge, on
July 21, 2006, issued a decision addressing whether PBS and Musser violated section 75.1200.

With regard to PBS, the judge noted that the Mine Act is a strict liability statute and that
the language of the regulation is clear. 28 FMSHRC at 706. Among other things, section
75.1200 requires an operator to show on a mine map adjacent mine workings that are within
1000 feet. Id. at 707. The judge found that the mine map at the Quecreek No. 1 Mine did not
accurately show the workings of the abandoned Harrison No. 2 Mine. Id. Therefore, the judge
concluded that PBS violated the standard when it depicted inaccurate boundaries of the
abandoned mine on the map. Id. at 707-08. The judge did not address PBS’s degree of
negligence nor the appropriateness of the proposed penalty because of outstanding questions of
material fact that could only be resolved following a hearing. Thus, he denied summary decision
on those issues. Id. at 709-11.

In response to Musser’s argument that it was not an operator subject to the jurisdiction of
the Mine Act, the judge held that Musser was an independent contractor providing engineering
services to the mine that were more than de minimis. Id. at 711-14. The judge concluded that
Musser violated section 75.1200 because it was in a position to prevent the errors on the mine
map submitted to MSHA in that “Musser created, certified, and sealed the permit map, on which
the section 75.1200 map was based.” Id. at 714-16. On the issue of Musser’s negligence, the
judge concluded, as he had with PBS, that he could not determine the degree of Musser’s
negligence or the penalty assessment without a hearing.

Id. at 716-18.

Following a hearing, the judge issued a second decision on November 3, 2008, addressing
the degree of negligence of PBS and Musser in committing the violations, whether the violations
were S&S, and the amount of penalties. 30 FMSHRC at 1087. With regard to negligence, the
judge concluded that PBS and Musser acted in “a grossly negligent manner.” Id. at 1092-94.
The judge reasoned that PBS and Musser were aware that they had received contradictory maps
from Consol, that final certified maps are rarely available, and that the Harrison No. 2 Mine was
at a higher elevation and full of water. Id. Rather than take additional precautions such as
placing a notation on the mine map indicating uncertainty about the boundaries, PBS and Musser
chose instead “to play Russian roulette with the lives of miners.” Id. at 1093-94. The judge also
concluded that the violations were S&S, noting in particular that the death of the nine miners was
a near certainty but for a dramatic rescue. Id. at 1095. Finally, in addressing the proposed
penalties, the judge found that the violations were “of the utmost gravity,” id. at 1091-92, and he
imposed the maximum penalty of $55,000 against PBS and Musser. Id. at 1095.

II.

Disposition

PBS challenges the judge’s reading of section 75.1200 in finding a violation because the
judge’s decision requires PBS to comply with the “impossible” requirement of producing an
accurate map with the boundaries of the abandoned and sealed Harrison No. 2 Mine when there
was no complete final mine map available from any source. PBS Br. at 15-16. PBS argues that
the judge’s reading of the standard misinterpreted section 75.1200 to mandate “accurate and up-to-date” information about the abandoned Harrison No. 2 Mine when the regulation only requires
such information about the operator’s own mine. Id. at 16-17. PBS also contends that the
judge’s reading of the standard is inconsistent with the regulatory scheme. Id. at 18-20. In
support of its position, PBS also notes that the Secretary’s regulation for ventilation plan maps,
30 C.F.R. § 75.372(c) (which may be satisfied by a mine map prepared under section 75.1200),
requires boundaries of only “known” mine workings, which is consistent with Pennsylvania
regulations. PBS Reply Br. at 5. PBS further argues that the judge erred when he required PBS
to annotate the mine map to indicate uncertainty about the boundaries of the adjacent abandoned
mine. PBS Br. at 19-25; PBS Reply Br. at 7-9. PBS states that it was not aware of such a
requirement under section 75.1200 and therefore lacked notice. PBS Br. at 25-26; PBS Reply Br.
at 9. PBS takes issue with the judge’s finding that PBS’s level of negligence was very high or
“gross,” noting that the Secretary only alleged that the level of negligence was “moderate.”
PBS Br. at 26-31. PBS also asserts that the violation was not S&S. Id. at 31-33. Finally, PBS
contends that the judge’s increase in the Secretary’s proposed penalty was improper and that he
failed to provide an adequate explanation for departing from the proposed amount. Id. at 33-34.

Musser initially argues that it is not an “operator” within the meaning of the Mine Act
and therefore that MSHA has no jurisdiction over it. M. Br. at 6-15; M. Reply Br. at 8-12.
Musser contends that a mine must exist before Mine Act jurisdiction attaches, and that Quecreek
No. 1 Mine was not in existence at the time Musser performed services. M. Br. at 7-11. Musser
further argues that it did not violate section 75.1200 because it never created any map of the
Quecreek No. 1 Mine, M. Reply Br. at 6-7, and never certified the section 75.1200 map nor
submitted it to MSHA. M. Br. at 16-17. Musser asserts that it played no role in making sure an
up-to-date map was kept at the mine, M. Br. at 16, and that it could not have met the
requirements of section 75.1200 because there was no “mine” in existence at the time it prepared
the state permit map. M. Reply Br. at 6-7. Musser challenges the judge’s S&S determination
because he failed to correctly apply the test set forth in Mathies Coal Co., 6 FMSHRC 1 (Jan.
1984). M. Br. at 17-18. Musser asserts that the judge’s finding that Musser acted in a grossly
negligent manner is contrary to the record evidence, clearly erroneous, and that the judge ignored
mitigating factors in his determination. Id. at 19-25. Musser further challenges the judge’s
negligence holding because it was based on Musser’s failure to place a warning or notation on
the state permit map, when such a disclaimer would have been inappropriate. M. Br. at 21-22;
M. Reply Br. at 2-3. Musser finally argues that the Commission should reverse the judge’s
penalty assessment because he failed to properly consider whether the increased penalty was
appropriate to Musser’s size and whether it would affect its ability to continue in business.
M. Br. at 25-26.

In response, the Secretary argues that Musser failed to raise either before the judge or in
its PDR that it was not covered by the Mine Act. S. Br. at 12-13, 15-16. The Secretary further
argues that Musser provided sufficient services to the Quecreek mine to be an “independent
contractor” under the Act. Id. at 14-18. With regard to the regulatory requirement to provide an
accurate mine map showing adjacent mine workings, the Secretary argues that the standard is
plain and that Musser and PBS violated it when they failed to show the correct boundaries of the
Harrison No. 2 Mine. Id. at 18-20. In response to Musser’s and PBS’s argument that they did
not have adequate notice of the standard’s requirements, the Secretary asserts that a reasonably
prudent operator would have understood that a mine map that indicates there were no
immediately adjacent workings, when in fact, that information was unknown, is not “accurate.”
Id. at 24-25. The Secretary argues that the judge’s S&S determination is correct under Mathies.
Id. at 26-30. The Secretary states that the judge’s finding of gross negligence is supported legally
and factually. Id. at 30-39. In the assessment of penalties against Musser and PBS, the Secretary
states that a remand to the judge for a further analysis of the penalties and two of the penalty
criteria in section 110(i), size of business and ability to continue in business, is necessary. Id.
at 41-42.

A.        Musser’s Status as an Operator/Independent Contractor under the Mine Act

Section 3(d) of the Mine Act expanded the definition of “operator” in the Coal Act, and
defines “operator” as “any owner, lessee, or other person who operates, controls, or supervises a
coal or other mine or any independent contractor performing services or construction at such
mine.” 30 U.S.C. § 802(d). The phrase “independent contractor” is not defined in the Mine Act,
but MSHA regulations define it as an entity that “contracts to perform services . . . at a mine.”
30 C.F.R. § 45.2(c). The Secretary cited Musser as an operator based on the independent
contractor clause of section 3(d).

Musser challenges MSHA’s authority to issue it a citation under the Mine Act. M. Br.
at 6-17. It essentially argues that before there can be jurisdiction over it, there must, pursuant to
section 3(d), be a “mine” in existence from which minerals are being extracted, and that in this
case, the actions for which it was cited occurred years before there was a mine. Id. at 6-9 & n.4.
Musser additionally argues that MSHA lacked jurisdiction to issue the citation because its work
was not performed at the prospective mine site, and hence, was not “at such mine” within the
meaning of 30 U.S.C. § 802(d).

Initially, we disagree with the Secretary that Musser has not adequately preserved the
issue for review. In its petition for discretionary review, Musser identifies the first issue for
review in the following words, “There is no Mine Act jurisdiction.” M. PDR at 6. Musser states
in its petition that it is not an “operator,” which includes “any independent contractor performing
services,” within the meaning of section 3(d) of the Act. Id. Musser’s identification and
treatment of the issue in its PDR largely parallels the judge’s discussion of the issue that he titled,
“Musser - Jurisdiction” in his first decision. 28 FMSHRC at 711. In any event, Musser’s
arguments regarding its status as an operator and independent contractor under section 3(d) are
clearly related to those presented to the judge, M. Reply Br. on Mot. for Sum. Dec. at 1-5, and
can be considered by the Commission. See Rock of Ages Corp., 20 FMSHRC 106, 115 n.11
(Feb. 1998), aff’d in part on other grounds, 170 F.3d 148 (2nd Cir. 1999) (addressing
unwarrantable failure findings not specifically raised in a PDR because the arguments were
sufficiently related to the negligence issue in the PDR); Keystone Coal Mining Corp., 16
FMSHRC 6, 10-11 n.7 (Jan. 1994) (holding that the arguments raised on review were sufficiently
related to those presented to the judge, as they enlarged the initial contention to the judge by
presenting an additional rationale).

In finding that Musser was an “independent contractor performing services . . . at [a]
mine” under section 3(d), the judge relied on Otis Elevator Co. v. Secretary of Labor, 921 F.2d
1285, 1290 (D.C. Cir. 1990), Joy Technologies, Inc. v. Secretary of Labor, 99 F.3d 991, 999-1000
(10th Cir. 1996), and Northern Illinois Steel Supply Co. v. Secretary of Labor, 294 F.3d 844, 848-49 (7th Cir. 2002), which hold in effect that section 3(d) covers any independent contractor
performing more than de minimis services at a mine. See 28 FMSHRC at 712-14. The judge’s
analysis of this issue is correct.

First, clearly Musser was an independent contractor which performed engineering services
for PBS in connection with the Quecreek No. 1 Mine. It prepared the original permit application
including the maps that were an integral part of securing a mining permit from state and federal
authorities. Stips. 11, 12. Once Musser engineer Secor certified the state permit application map
that indicated the boundaries of the Harrison No. 2 Mine, all future mine maps, including mine
maps submitted to MSHA, were prepared using that map as the “base map.” 30 FMSHRC at
1089. Substantial evidence supports the judge on this point.

Tr. 59-60, 194, 335, 377-82.

The next inquiry is whether Musser was performing services “at a mine.” Relying on the
Commission’s decision in Paul v. P.B.-K.B.B., Inc., 7 FMSHRC 1784 (Nov. 1985), aff’d, 812
F.2d 717, 720 (D.C. Cir. 1987), Musser argues, M. Br. at 7-8, that there can be no Mine Act
jurisdiction if there is no mine in existence. In Paul, the Commission dismissed a section 105(c)
discrimination complaint because the individual was not working at a “mine,” and was involved
in design and exploratory activity that was “simply too far removed from what reasonably can be
regarded as mining activity in order to qualify for Mine Act coverage.” 7 FMSHRC at 1788.

However, Musser’s argument ignores an essential provision of the Mine Act that is
applicable in this proceeding. Section 3(h)(1) of the Act defines “mine” as including “lands . . . or
other property . . . used in, or to be used in, or resulting from, the work of extracting such minerals
from their natural deposits.” 30 U.S.C. § 803(h)(1) (emphases added).

The significant
distinction between Paul and this case is that in Paul, the engineer was preparing designs to
explore the feasibility of storage of nuclear waste in shafts constructed in underground salt
formations, but no prospective mine site was involved. Further, in Paul, “[t]he design never left
the drawing board. It was never implemented.” 7 FMSHRC at 1787. Thus, the “mine” was
wholly conceptual in nature. As the D.C. Circuit noted, “[c]onceptual designs do not endanger
lives or property; any hazards they pose, prior at least to their final approval or the initial stages of
their implementation, are purely hypothetical. The Act was not designed to regulate ideas.”
812 F.2d at 720.

Here, in contrast, the site for the mine had been selected, and Musser’s work was in
relation to that specific site. The Quecreek No. 1 Mine was located at that site. Thus, we
conclude that the absence of a mine from which minerals were being extracted at the time of
Musser’s work is not dispositive of Musser’s status as an independent contractor. See 7
FMSHRC at 1785, 1788.

Musser’s second argument as to jurisdiction is that its work was not actually performed at
the prospective mine site. In response, the Secretary argues that the words “at such mine” are
applicable if the services related to the mine site even if Musser performed them somewhere else.
S. Br. at 15-17. The words “at such mine” in section 3(d) are ambiguous, and we conclude that
the Secretary’s interpretation is reasonable and thus entitled to deference under the Chevron II
standard. Chevron U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837, 842-44 (1984).

Even without according deference to the Secretary’s interpretation of the words “at such
mine,” there is substantial evidence to support the finding that Musser’s work was performed, in
part, at the mine site. This conclusion is supported by Musser’s time records contained in Musser
Exhibit 4. These time records indicate repeated visits to the mine site for work related to the
permitting process, including surveying, field investigations, and water sampling. See M. Ex. 4.
These types of visits were acknowledged by Musser’s counsel at oral argument. Oral Arg. Tr. 44-45. Moreover, the services performed by Musser, which determine whether it is subject to MSHA
jurisdiction include all of the work performed by Musser in connection with submitting the permit
application to the Pennsylvania Department of Environmental Protection in 1998. This work was
much more extensive than just the work of locating the boundaries of the Harrison No. 2 Mine
and placing them on the Module 19.2 permit map. The specific work relating to the Harrison
Mine boundaries is the only work relevant to the citation in this case, but it is the totality of the
work Musser performed in preparing the permit application which must be considered on the
jurisdiction issue.

Our examination of Musser’s activities does not end here. We must determine whether its
contact was so infrequent or de minimis that it would be difficult to conclude that services were
being performed. Northern Illinois, 294 F.3d at 848-49. Musser’s engineering services for
RoxCoal, PBS, and Black Wolf were extensive in time and substantial in content. Musser’s time
records reflect work on a monthly, weekly, or more frequent basis, throughout 1992 to 1999.
See M. Ex. 4. As the judge found, 28 FMSHRC at 714, Musser’s activities included “engineering
support, mapping, and surveying services” that were performed to meet the operational needs of
the mine. Substantial evidence supports the judge in this regard. Accordingly, the services
provided by Musser were not de minimis, unlike the contractor in Northern Illinois.

Finally, in considering the role of Musser in the pre-extraction, operational activities at the
Quecreek mine, it is consistent with the purposes of the Mine Act to conclude that Musser is an
operator. As the Commission has noted, Congress’ inclusion of language in section 3(d) to
include independent contractors under the definition of “operator” represents an intentional
expansion in the coverage of the statutory term. Bulk Transp. Services, Inc., 13 FMSHRC 1354,
1357 (Sept. 1991). Moreover, according to the Senate Report, “[I]t is the Committee’s intention
that what is considered to be a mine and to be regulated under this Act be given the broadest
possibl[e] interpretation.” S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on
Labor Comm. on Human Res., Legislative History of the Federal Mine Safety & Health Act of
1977, at 602 (1978). Indeed, if we did not find coverage of Musser under the Act, we would reach
the anomalous result that a mine owner performing the same work as an independent contractor
would be covered, but the contractor would not.

B.        Whether Section 75.1200 Was Violated

PBS and Musser were cited for violating section 75.1200, 30 C.F.R. § 75.1200. Section
75.1200 is a standard that has its origin in, and closely tracks, section 312 of the Mine Act, which
provides that “[t]he operator of a coal mine shall have . . . an accurate and up-to-date map” that
shows “adjacent mine workings within one thousand feet.” 30 U.S.C. § 872.

1.         Liability of PBS

In agreement with the judge, we conclude that the language of section 312 of the Mine Act
and the regulation, 30 C.F.R. § 75.1200, is clear in requiring a coal mine operator to maintain an
“accurate” mine map showing adjacent mine workings, including abandoned workings within
1000 feet. The judge correctly determined that PBS violated 30 C.F.R. § 75.1200. PBS violated
the standard’s requirement of an accurate map because, as the judge pointed out, “[t]o say that the
operator’s map was inaccurate would be an understatement. If the operator’s map were accurate,
the Harrison No. 2 Mine workings would not have been intersected because the Harrison No. 2
Mine really would have been approximately 450 feet away, as indicated on the operator’s map.”

28 FMSHRC at 706. Accordingly, as the judge noted, if the Quecreek mine map had been
“accurate,” no breakthrough would have occurred. Id.

PBS raises a number of defenses regarding this liability issue. First, PBS argues that
section 75.1200’s requirement for an “accurate” mine map only applies to the mine “being
mapped and operated.” PBS Br. at 16-17. It asserts that the regulation does not require an
“accurate and up-to-date map” of the adjacent workings (in this case, of the Harrison No. 2 Mine).
We reject this contention, as the framework and language of the standard are clear that it does.

Quoting section 312(a) of the Act, the regulation states: “The operator of a coal mine shall have in
a fireproof repository located in an area on the surface of the mine chosen by the mine operator to
minimize the danger of destruction by fire or other hazard, an accurate and up-to-date map of
such mine drawn on scale.” 30 C.F.R. § 75.1200 (emphasis added). The regulation goes on to
state, “[s]uch map shall show” and then enumerates specific items which must be shown.
Id. (emphasis added). Of the 12 items listed, eight (the first seven and the last) refer to the
operator’s mine, while the other four items, including “(h) Adjacent mine workings within 1,000
feet,” do not refer to the operator’s mine. PBS’s assertion that the requirement of accuracy of the
mine map applies to the eight specified items relating to the operator’s mine but not to the
remaining four items has no basis in the statutory or regulatory language, which makes no such
distinction. PBS’s argument contravenes the well-known principle that a statutory or regulatory
provision must be construed “as a whole, giving comprehensive, harmonious treatment to all
provisions.” Morton Int’l, Inc., 18 FMSHRC 533, 536 (Apr. 1996). Certainly, it would trivialize
the requirement of an accurate mine map to carve out an exception for the boundaries of adjacent
mines.

Moreover, the legislative history of the Coal Act, which, as mentioned previously,
contains the predecessor provision to section 312 of the Mine Act, makes clear that the
requirement of an accurate mine map applies to workings adjacent to the mine. As stated in the
Senate Report, “[r]ecent inundation accidents . . . point up the need for the accurate mapping of
mines. Active mines often cut through into adjacent mines, or worked[-]out and abandoned areas
of the same mine, because of the lack of maps or because of inaccurate maps.” S. Rep. 91-411,
at 82 (1969), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Part I Legislative
History of the Federal Coal Mine Health and Safety Act of 1969, at 208 (1975). Hence, the
operator’s argument that the regulation does not require “accurate” mapping of the adjacent mine
workings within 1,000 feet is groundless.

PBS also challenges the judge’s finding of a violation because the judge’s reading of the
regulation “requires what is impossible,” as no final complete mine map of the Harrison No. 2
Mine was available, and because it was impossible to survey the abandoned and flooded mine.
PBS Br. at 15-16.

In support of its argument, PBS cites four cases – Rock of Ages Corp., 20 FMSHRC 106,
122 (Feb. 1998); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993); Dantran, Inc.
v. Department of Labor, 171 F.3d 58, 65 (1st Cir. 1999); and Walker Stone Co. v. Secretary of
Labor, 156 F.3d 1076, 1082 (10th Cir. 1998). However, none of these cases stand for the
proposition advanced by PBS. Rather, they stand for the principle that a statute or regulation may
not be construed so as to lead to absurd results.

In any event, PBS’s argument that the citation in this case required it to do the
“impossible” because the precise location of the Harrison No. 2 Mine workings was unknown
ignores the precept that “operators may be held liable for violations of mandatory safety
[standards] under the Mine Act even if they did not have knowledge of facts giving rise to the
violation.” S. Br. at 20, citing Rock of Ages Corp. v. Sec’y of Labor, 170 F.3d 148, 156 (2nd Cir.
1999); see also Stillwater Mining Co. v. FMSHRC, 142 F.3d 1179, 1183-84 (9th Cir. 1998). As
noted by the Second Circuit, this is consistent with the purpose of the Mine Act because it
encourages “greater vigilance” and avoids creating an incentive for operators “to avoid gaining
knowledge.” Rock of Ages, 170 F.3d at 155.

Because the Mine Act is a strict liability statute, an operator is liable if a violation of a
mandatory safety standard occurs, regardless of the level of fault. Spartan Mining Co., 30
FMSHRC 699, 706 (Aug. 2008); Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov. 1986), aff’d, 868
F.2d 1195 (10th Cir. 1989). In Asarco, the Commission concluded that “the operator’s fault or
lack thereof, rather than being a determinant of liability, is a factor to be considered in assessing a
civil penalty.” Id. at 1636. Thus, because the standard requires that the operator maintain an
“accurate and up-to-date map,” it follows that if the mine map fails to meet these requirements,
the operator has violated the standard, regardless of whether it did everything possible to locate an
accurate historical map of adjacent mine workings.

We also reject PBS’s assertion that the judge’s interpretation of the regulation (requiring
an operator to accurately depict the workings of an abandoned adjacent mine even if it is not
possible for the operator to survey the abandoned mine) is inconsistent with the regulatory
scheme. PBS Br. at 18-19. PBS first relies on 30 C.F.R. § 75.1200-2, which addresses the
surveying of mine property. PBS reasons that this standard equates the accuracy of a mine map
with the accuracy of an operator’s survey methods. Id. However, references to the methodology
of surveying in other MSHA regulations do not vitiate the plain language of section 75.1200(h),
which requires an “accurate and up-to-date map” of adjacent mine workings within 1,000 feet.

PBS also relies on borehole regulations (30 C.F.R. § 75.388) that, according to PBS, have
more stringent requirements in areas of a mine not shown by surveys. PBS contends that the
different requirements involving the drilling of boreholes in advance of mining

recognize that some adjacent mines cannot be accurately mapped, and so build in a 200-foot borehole drilling
requirement as a replacement for accurate mapping. Id. at 19. However, the requirement for
boreholes in advance of mining when the working place approaches to within 200 feet of any
mine workings of an adjacent mine located in the same coal bed (unless the mine workings have
been preshift examined), 30 C.F.R. § 75.388(a)(3), does not displace the requirement for an
accurate map of adjacent mine workings within 1,000 feet. Rather, this is an additional safety
precaution which provides additional protection from breakthroughs.

The fact that section
75.388(a)(1) requires borehole drilling when the working place approaches to within 50 feet of an
area “located in the mine as shown by surveys that are certified by a registered engineer or
registered surveyor” is irrelevant. This provision relates to mining coming close to an already-mined area within the operator’s mine rather than an adjacent mine.

PBS also contends that under MSHA’s regulations governing ventilation maps, 30 C.F.R.
§ 75.372(b)(3), an operator need only show “known” mine workings in the same seam and that
Pennsylvania state law only requires “known workings of . . . abandoned, underground or surface
mines,” on permit application maps, 25 Pa. Code. § 89.154(a)(4). PBS Reply Br. at 5. PBS notes
that pursuant to C.F.R. § 75.372(c), MSHA accepts a mine map prepared under 30 C.F.R.
§ 75.1200 as fulfilling the requirements of a ventilation map under 30 C.F.R. § 75.372(b). Id.
However, neither section 75.372(b)(3) nor the Pennsylvania environmental statute supplants the
plain language requirements of section 75.1200(h). PBS appears to accept the premise that the
language of 30 C.F.R. § 75.372(b)(3), with its reference to “known mine workings,” is less
stringent than 30 C.F.R. § 75.1200(h), which omits the word “known.” The fact that the Secretary
accepts the more rigorous provision of section 75.1200 as satisfying section 75.372(b)(3) can in
no way be interpreted to imply the inverse – that the Secretary intended to accept a watered-down
version of a section 75.1200 mine map to satisfy section 75.1200. If anything, comparison of
section 75.1200 with section 75.372 supports the judge’s conclusion that the plain meaning of
section 75.1200 requires an accurate depiction of adjacent mine workings within 1,000 feet.

Additionally, PBS takes issue with the judge’s findings that the Quecreek Mine map
would have been “accurate” within the meaning of section 75.1200 if it had been drafted so as to
show uncertainty regarding the location of workings in the Harrison No. 2 Mine. 28 FMSHRC
at 707. PBS argues that it had no notice of a requirement that, when the precise boundaries of an
adjacent mine are uncertain, it must show the uncertainty on its mine map by using dotted lines or
other form of disclaimer. PBS Br. at 20-26. However, we need not reach the issue of whether a
mine map depicting an uncertain area becomes “accurate” if it shows the uncertainty. As stated
supra, the plain meaning of section 75.1200 is that a mine map’s depiction of the workings of an
adjacent mine within 1,000 feet must be accurate.

An operator in the position of PBS in this case – recognizing the existence of an
abandoned mine up dip of its proposed mine, but uncertain of the boundaries of the abandoned
mine because of the lack of a final, dated, and certified map of the abandoned mine – is not
without means to operate its mine legally and safely. The Mine Act envisions situations in which
an operator is permitted to deviate from a standard’s requirements, if adequate alternative
precautions are implemented. Section 101(c) of the Mine Act authorizes the Secretary to modify
the application of any mandatory safety standard to a particular mine if she finds that “an
alternative method of achieving the result of such standard exists which will at all times guarantee
no less than the same measure of protection afforded the miners of such mine by such standard.”
30 U.S.C. § 811(c). An operator in the situation of PBS in this case may petition the Secretary,
pursuant to section 101(c), to modify the strict application of 30 C.F.R. § 75.1200. In the petition,
the operator could explain what steps it would put in place, in other words, what “alternative
method” it is proposing to implement, so that miners would have the same level of protection as is
afforded by compliance with the standard. Thus, in the absence of a final, dated certified map of
an adjacent mine, the operator could propose procedures such as horizontal drilling at the face in
advance of the mining, as suggested by Black Wolf President David Rebuck, Tr. 280-81, and
MSHA expert Stanley Michalek, Tr. 429.

Hence, we reject PBS’s defenses and conclude that it violated section 75.1200 when it
failed to maintain an accurate mine map.

2.         Liability of Musser

Musser appeals the judge’s conclusion that it violated 30 C.F.R. § 75.1200 by preparing
the Pennsylvania DEP environmental permit application for the Quecreek No. 1 Mine, including a
map showing the location of abandoned mine workings adjacent to the planned mine.
28 FMSHRC at 714-16. In his decision finding Musser liable, the Judge reasoned that the Musser
environmental permit map, including the location of the Harrison No. 2 Mine, was used as a basis
for the maps required to be prepared under 30 C.F.R. § 75.1200; that the Mine Act is a strict
liability statute; that the Secretary has wide discretion to proceed against an owner-operator, its
contractor, or both; and that Musser was in a position to prevent the errors on the section 75.1200
map submitted to MSHA. Id.

Musser argues that it never certified or submitted a map to MSHA under section 75.1200.
M. Br. at 16. Musser further contends that its certification of the maps submitted to the
Pennsylvania DEP was guided solely by state requirements under which it appropriately certified
the maps and boundaries. Id. at 16-17. At its essence, Musser’s primary argument is that its state
environmental permit work was too attenuated to the map preparation and submission required
under section 75.1200 for Musser to be held responsible. In response, the Secretary argues that
section 75.1200 has no words that would limit its application to an operator involved with
preparing or certifying maps for MSHA, and thus Musser committed a violation because it
prepared the state permit map upon which the section 75.1200 map was based. S. Br. at 23.

Previously, Chairman Jordan and Commissioner Cohen found that Musser’s services as an
independent contractor at the mine justified the judge’s conclusion that Musser was an “operator”
of the mine pursuant to section 3(d) of the Mine Act, 30 U.S.C. § 802(d). However, the fact that
Musser was an “operator,” together with the fact that Musser prepared the Pennsylvania
environmental map, is not sufficient to justify the conclusion that Musser is liable for a violation
of section 75.1200. As we noted in Joy Technologies, Inc., 17 FMSHRC 1303, 1309 (Aug. 1995),
aff’d, 99 F.3d 991 (10th Cir. 1996), an independent contractor will not be held responsible for a
violation where it exercised no control. As recently stated by the D.C. Circuit in Secretary
of Labor v. National Cement Co. of California, 573 F.3d 788, 795 (D.C. Cir. 2009), “strict
liability means liability without fault. . . . . It does not mean liability for things that occur outside
one’s control or supervision.”

The citation issued to Musser states that the information it supplied “was used by PBS to
show the Harrison No. 2 boundary on the map required by 30 C.F.R. § 75.1200 for the Quecreek
No. 1 Mine.” Stip. 96. Section 104(a) of the Mine Act limits citations to an operator that has
“violated” the Act or any mandatory standard. 30 U.S.C. § 814(a). The liability of Musser in this
case is a very close question. The issue is whether an engineering firm which produced a map
under a state environmental permit statute is liable for a violation under the Mine Act when
information on the state map was carried over to the section 75.1200 mine map, and was
erroneous. If Musser had itself participated in the actual preparation of the section 75.1200 mine
map, we would have no problem in upholding the violation. But the issue presented by Musser’s
involvement in the inundation at the Quecreek No. 1 Mine is a matter of first impression.

We conclude that the company’s preparation of the Pennsylvania environmental permit
map was too attenuated a circumstance to justify imposition of liability for the erroneous mine
map under 30 C.F.R.§ 75.1200, even though the location and boundaries of the Harrison No. 2
Mine were identical on both maps. Musser was not involved with the preparation or submission
of the section 75.1200 mine map to MSHA. It had no direct control over the submission of the
map to MSHA.

As noted supra at 17, the Pennsylvania environmental statute under which the permit
application was submitted differs from 30 C.F.R. § 75.1200, in that it only requires “[t]he location
and extent of known workings of active, inactive or abandoned, underground or surface mines” to
be shown on permit application maps. 25 Pa. Code § 89.154(a)(4) (emphasis added). Thus, it
would appear that Musser may have been in compliance with the Pennsylvania statute under
which it prepared the permit map, since the mine workings in the Harrison No. 2 Mine which
were erroneously placed on the permit map were not “known” from any map which Musser was
able to locate. It would be anomalous to hold that Musser violated a statute under which it did not
prepare the map when it arguably complied with the statute which was applicable to the map it did
prepare.

Moreover, although Musser engineer Secor was the person who certified the Pennsylvania
environmental permit map, PBS was fully involved in the process of producing it. PBS vice-president Joseph Gallo testified that he “approved” the boundary lines for the Harrison No. 2
Mine that appeared on the state permit map. Tr. 247. Clearly, PBS knew what Musser knew with
regard to the boundaries of the Harrison No. 2 Mine at the time of submission of the state permit
map. Tr. 144-46. Both Gallo and PBS chief mining engineer John Yonkoske testified that PBS
then continued to search for maps of adjacent mines after Musser submitted the state
environmental permit application. Tr. 189-92, 227, 235-36, 321-22. Thus, in preparing the
section 75.1200 mine map, PBS concluded independently from Musser that the location and
boundaries of the Harrison No. 2 Mine were correctly placed.

The judge rested his conclusion that Musser was liable on the finding:

Musser was in a position to prevent the errors on the section
75.1200 map because Musser created, certified, and sealed the
permit map, on which the section 75.1200 map was based. Musser
knew that even though its map would not specifically be submitted
to MSHA for the requirements of section 75.1200, the research and
plotting of the Harrison No. 2 Mine and the hydraulic barrier line
would be used in creating future maps of the Quecreek No. 1 Mine.
By sealing the permit map, Musser verified the map’s accuracy.

28 FMSHRC at 716. Essentially, this is a conclusion based on the concept of foreseeability. The
argument is that because it was foreseeable that the location and boundaries of the Harrison No. 2
Mine placed on the permit map would then be placed on the section 75.1200 mine map (a
conclusion with which we do not disagree), Musser committed a violation under the Mine Act
because of the inaccuracy of the mine map.

The concept of foreseeability of injury as a basis for finding negligence has long been an
integral part of Anglo-American tort law. See W. Page Keeton et al., Prosser and Keeton on
Torts, § 43, at 280 (5th ed. 1984) (“Prosser”). However, tort law is inherently different from the
law of governmental regulation. Tort law

is directed toward the compensation of individuals, rather than the
public, for losses which they have suffered within the scope of their
legally recognized interests generally . . . .

The law of torts, then, is concerned with the allocation of
losses arising out of human activities . . . . The purpose of the law
of torts is to adjust these losses, and to afford compensation for
injuries sustained by one person as the result of the conduct of
another.

Id., § 1, at 5-6. In contrast, the concepts underlying governmental regulation such as the Mine Act
do not include allocation of losses or compensation to a person injured by the actions of another.

Penalties under the Mine Act are payable to the public via payment to the federal government.
Whether or not a penalty is imposed under the Mine Act (although not the amount of the penalty)
is determined by whether the operator committed a violation of the Act, which is a matter of strict
liability. Section 110(a) is specific in this regard: “The operator of a coal or other mine in which
a violation occurs . . . shall be assessed a civil penalty . . . .” 30 U.S.C. § 820(a). The issue of
negligence is not part of the analysis of whether or not a violation of the Act occurred under
section 110(a).

The rationale for strict liability under the Mine Act is that “it is a common
regulatory practice to impose a kind of strict liability on the employer as an incentive for him to
take all practicable measures to ensure the workers’ safety.” Allied Products Co. v. FMSHRC,
666 F.2d 890, 893 (5th Cir. 1982).

Consequently, the foreseeability of the potential injury caused by an operator’s conduct is
rarely, if ever, a factor in determining whether a strict liability penalty is assessed under section
110(a). Rather, the issue in Mine Act litigation is usually whether an operator or its contractor is
subject to a statutory or regulatory provision, and if so, whether there was compliance with the
applicable legal mandate. Indeed, the Commission has emphatically rejected a proposed
“unforeseeable employee misconduct exception” to the principle of liability without fault,
declaring that “[s]uch an exception . . . would vitiate the underlying principle.” Western
Fuels-Utah Inc., 10 FMSHRC 256, 261 (Mar. 1988). If unforeseeable conduct may not be used as
a defense to liability under the Mine Act, then conversely, the foreseeability of injury caused by an
actor’s conduct should not generally be relevant to establish liability.

We have found very few precedents from other areas of federal administrative law.
However, it is instructive to compare two cases, both of which involve the liability of an
engineering firm under the Clean Water Act, 33 U.S.C. § 1251 et seq. Section 404 of the Clean
Water Act, 33 U.S.C. § 1344, provides that a person or other entity must obtain a permit from the
Army Corps of Engineers for the discharge of dredged or fill material into navigable waters of the
United States, except in certain specified situations. Civil liability under the statute is predicated
on either (1) performance, or (2) responsibility for or control over the performance of the work.
See United States v. Bd. of Trustees of Florida Keys Community College, 531 F. Supp. 267, 274
(S.D. Fla. 1981). Thus, an engineering firm can face liability under the Clean Water Act if it has
responsibility for, or control over, the performance of work which violates the Clean Water Act,
even if it performs none of the work itself. Accordingly, an engineering firm’s liability under the
Clean Water Act predicated on “control” is similar to the concepts of control and liability under
the Mine Act, as discussed previously in reference to Joy Technologies and National Cement.

In United States v. Weisman, 489 F. Supp. 1331 (M.D. Fla. 1980), an engineering firm was
held liable for the violation of 33 U.S.C. § 1344 when it designed a new roadway, submitted
permit applications to the Corps of Engineers, and wrote the Corps again in response to denial of
the permit. The engineering firm became liable under the Clean Water Act when the owner of the
property constructed the roadway despite not having a permit. In contrast, in United States
v. Sargent County Water Resource District, 876 F. Supp. 1081 (D. N.D. 1992), an engineering
firm was found not liable under 33 U.S.C. § 1344 in connection with a project to clean silt out of
a ditch through wetlands. The engineering company provided drawings to Sargent County
showing the pre-existing depth of the ditch, placed depth stakes in some areas of the ditch, and
placed centerline stakes in the ditch, but did not apply for any permits. The Court found the
engineering firm not liable under the Clean Water Act because the firm’s work was too attenuated
from potential violations arising from the construction work performed on the ditch. Id. at 1088-89. In the present case, Musser’s actions are more akin to those of the engineering firm in Sargent
County than to the engineering firm in Weisman, particularly in that Musser did not prepare the
section 75.1200 mine map.

In sum, we conclude that Musser’s role in preparing a “base” map that PBS used in
preparing the section 75.1200 mine map was insufficient to bring it within the parameters of the
specific standard involved in this case. Thus, we conclude that Musser did not violate section
75.1200.

C.        S&S

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co.,

3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the
Commission further explained:

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

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

The judge addressed the S&S designation of the citations in his second decision.
30 FMSHRC at 1094-95. He found that, with regard to the first two elements of Mathies, the
standard had been violated when an inaccurate mine map was produced, and that the violations
directly contributed to the very dangerous inundation at Quecreek when the breakthrough
occurred. Id. at 1095. With regard to the third and fourth Mathies criteria, the judge found that,
as a consequence of the inaccurate mine map, 18 miners were placed in peril of their lives and
nine miners were trapped for three days and four nights before being dramatically rescued. Id.
We conclude that substantial evidence fully supports the judge’s S&S determination; indeed, most
of the evidence concerning the Mathies elements is undisputed.

PBS alleges that the judge did not address the third Mathies criterion. PBS also contends
that to demonstrate that the event was “reasonably likely,” the Secretary was required to produce
evidence of other mines that relied on abandoned mine maps that were not final and the number of
times this resulted in a breakthrough and injuries, and that the Secretary failed to produce such
evidence. PBS. Br. at 32. In making these arguments, PBS fails to distinguish between the words
“violation” and “hazard” in the Mathies test.

The second element in Mathies requires consideration of whether a discrete safety hazard
– that is, a measure of danger to safety – is contributed to by the violation. There is no
requirement of “reasonable likelihood.” The third element is whether there is a reasonable
likelihood that the hazard contributed to will result in an injury.

As applied to this case, the “violation” is the failure to have an accurate map. The
“hazard” is the danger of breakthrough to an adjacent mine and resulting inundation. PBS
concedes that the judge properly found that the hazard – the danger of breakthrough – was
contributed to by the mapping failure. But in turning to the third element, PBS conflates
“violation” with “hazard.” PBS argues that there must be a reasonable likelihood that the
violation will cause injury. However, that is not the test. The test under the third element is
whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., the
danger of breakthrough and resulting inundation, will cause injury. The Secretary need not prove
a reasonable likelihood that the violation itself will cause injury, as PBS argues.

The Secretary presented evidence regarding the likelihood of injury as a result of the
hazard through the testimony of her expert witness, Stanley Michalek. He testified that miners
who broke through into a flooded adjacent mine would face numerous dangers of injury:
drowning, blocked escapeways, disrupted ventilation, entrapment, hypothermia, air with low
oxygen or high noxious gas levels, and roof falls. Tr. 389-91. The testimony constitutes
substantial evidence supporting the judge’s conclusion that the Secretary proved the third Mathies
element.

In addition to confusing the concept of a “violation” versus a “hazard” in the Mathies test,
PBS’s challenge to the judge’s finding of S&S contains another significant flaw. In asserting that
the Secretary was required to produce “an analysis . . . of situations where mining was conducted
without a final map . . . and the number of times that resulted in a breakthrough and the number of
times that resulted in injuries,” PBS Br. at 32, PBS misstates the Secretary’s evidentiary burden.
Indeed, in arguing that testimony regarding the likelihood of fatal injuries was “a theoretical
possibility, not actual reality, which is insufficient for an S&S finding,” PBS ignores our previous
caselaw in this area. We have held that the absence of an injury-producing event when a cited
practice has occurred does not preclude a determination of S&S. See Elk Run Coal Co.,
27 FMSHRC 899, 906 (Dec. 2005) (judge erred in concluding that Secretary failed to carry her
evidence burden by not presenting evidence of roof falls or stress on the roof in defending her
S&S designation of a roof control plan violation); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC
853, 857 (June 1996) (operator’s assertions that it had no history of accidents and that equipment
had been driven for many months in cited condition is not dispositive of S&S determination).

Hence, the judge’s treatment of the S&S designation was legally correct and supported by
substantial evidence.

D.        Negligence

In setting the penalty, the judge concluded that PBS acted in “a grossly negligent manner.”
30 FMSHRC at 1094. His finding was based on PBS’s use of a map of the Harrison Mine that
was neither dated, final, nor certified, despite the obvious risk of catastrophe presented by the
flooded Harrison No. 2 Mine up dip from the Quecreek No. 1 Mine. Id. at 1093-94.

The
Commission must decide whether substantial evidence in the record supports this determination.
Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2163.

The issue of PBS’s negligence turns on the question of whether, in fulfilling its legal duty
to maintain an accurate mine map, it was reasonable for PBS to reproduce the second Consol map
on the section 75.1200 map as an accurate depiction of the extent of mining in the Harrison No. 2
Mine. We agree that PBS conducted a diligent search for a final map of the abandoned Harrison
No. 2 Mine, and that it used the best map available to it. 28 FMSHRC at 709; Stip. 55. However,
the fact that the second Consol map was the best map it could locate does not mean it was
reasonable for PBS to conclude that this map was a reliable indicator of the boundaries of the
Harrison No. 2 Mine.

PBS assumed that the second Consol map of the Harrison No. 2 Mine was accurate. As
stated by Gallo, who was then the PBS vice-president for engineering, the second Consol map
contained the most extensive mine workings, and PBS “equate[d] extensive with correct and
accurate.” Tr. 186, 237. Similarly, Yonkoske, the PBS chief mining engineer, testified: “If
you’ve done everything possible to locate what you have, you plot that on your map, and that goes
as your mine line . . . .” Tr. 366. Thus, PBS equated “best map available” with “accurate map.”

The false assumption that the second Consol map was accurate lay at the heart of PBS’s
negligence. This map was not only undated, but uncertified and not marked as final. It was, as
MSHA expert witness Stanley Michalek testified, “simply a line drawing of some workings on a
property map.” Tr. 417, referring to Gov’t Ex. 4. By assuming that the second Consol map was
accurate, PBS assumed that no further mining had occurred at the Harrison Mine which could
impact the Quecreek Mine. PBS concluded that no further mining had occurred beyond the area
shown despite the fact that it did not know the date of the second Consol map.

Although PBS did not know the date of the map upon which it was relying, it did have
information in its possession which indicated the direction in which the mining had been
advancing prior to the preparation of the second Consol map. Michalek testified that if PBS had
compared the second Consol map with the Greentree map previously located, it would have
detected that the mining was progressing in a certain direction. By extrapolating from the most
recently known mining, PBS would have seen that additional mining occurring after the time that
the second Consol map was prepared likely would have been in the direction of the Quecreek
Mine it was planning. Tr. 417-429. Thus, “if mining had continued in the direction . . . shown, it
would have been pretty clear that . . . the possible additional workings, if they were present, would
have intersected the Quecreek Mine.” Tr. 428.

Witness Richard T. Stoltz, the MSHA Acting
Ventilation Division Chief, confirmed that comparison of the two maps showed the additional
mining on the second Consol map compared with the Greentree map. Tr. 830, 844-46, 862-66.

Because the second Consol map was undated, Michalek testified that PBS’s engineers had
a duty to assume that additional mining may have occurred, and that it would have been in the
direction of the planned Quecreek Mine. Tr. 428-29. As Michalek stated, prudent engineers
“could have conducted additional exploration to try to delineate the workings of the [Harrison]
Mine by vertical holes.” Tr. 429. They could have also set their “drill-in-advance barrier” further
back based on an extrapolation from previous mining at the Harrison Mine. Id. They could also
have “done long-hole drilling in advance of where their Mains were advancing.” Id.

However, there is no evidence that PBS performed the extrapolation of the direction of
possible additional mining based on maps in its possession as Michalek outlined. Tr. 483-85.
Nor, as Judge Lesnick noted, did PBS take any additional precautions. 30 FMSHRC at 1093.

PBS simply assumed that the second Consol map represented the final extent of the Harrison
Mine workings.

In making his negligence determination, the judge relied in part on the testimony of David
Lucas, the Musser engineer

who did the actual mapping of the Harrison Mine in consultation
with PBS engineers. 30 FMSHRC at 1093. Lucas testified that although the Consol map was the
best map PBS and Musser had, he did not consider it an accurate rendition of the Harrison No. 2
Mine, and was unsatisfied with it. Tr. 57-58. In fact, when asked if he had any reservations about
placing that boundary on the permit map, Lucas replied “always.” Tr. 56-57.

The judge also justifiably relied on the fact that before receiving from Consol the map they
relied on, PBS and Musser had received a different map from Consol in response to their request
for a map of the Harrison No. 2 Mine. Quoting the testimony of Michalek, the judge concluded:
“Having received two contradictory maps from Consol ought to have put the Respondents on
notice that all was not right, that ‘these guys [Consol] didn’t have their system down like they
used to.’ Tr. 458.” 30 FMSHRC at 1093 (alteration in original). The judge noted that Musser’s
expert witness, Hiram C. Riblett, “agreed that getting an unreliable map would raise doubts about
other maps received from the same source. Tr. 651-52.” Id.

However, PBS asserts that it was reasonable to rely on the second Consol map because it
had asked Consol for its best map, because Consol is a large and reputable mine operator with an
extensive collection of maps, because PBS had good experiences with Consol maps,

and
because Consol, as the lessor of the coal and collector of royalties from the mining, would have a
self-interest in having an accurate map of the Harrison No. 2 Mine workings. PBS Br. at 27-28;
Tr. 217-219. We agree that Consol, as lessor of the coal, certainly had a strong self-interest in
having, and indeed did have, accurate maps of the Harrison mine workings. But this strong self-interest became greatly reduced after Consol was no longer receiving royalties, which occurred
after the mine ceased operations in 1963. As witness Stoltz agreed, the fact that Consol had an
interest in keeping its maps accurate while it was receiving royalties does not mean that Consol
has a continuing interest in filing them well, storing them well, or organizing them well. Tr. 857.

The question is not whether Consol had an accurate map in the 1960’s, but whether it still
had such a map, catalogued for availability to Musser and PBS or some other entity, in the mid-1990’s, 30 years later. As it turned out, Consol did have an accurate map of the Harrison No. 2
Mine workings, but, as mentioned supra, this map (together with other mine-related documents
including correspondence) had been sent to one of its attorneys, who, many years earlier, had been
handling a request from the Environmental Protection Agency about mines that may have caused
discharges into the Casselman River. Stips. 99-107. The attorney had requested maps from the
Consol repository about such mines, which included the Harrison No. 2 Mine. Thus, the accurate
map was in one of six boxes in a storage room of the Consol Legal Department. Id.

This was exactly the type of problem that should have been anticipated in relying on
Consol not only to have a map, but to keep it catalogued for availability for 30 years. As Judge
Lesnick noted, PBS should have been aware that the Consol map cataloguing system was not
reliable in terms of a 30-year-old map when it received, in response to its first request for the map
of the Harrison No. 2 Mine workings, a map which proved to be incomplete, and Musser had to
go back to Consol a second time. 30 FMSHRC at 1093. Clearly, as Michalek testified, the
receipt of an incomplete map in response to the first request should have raised a “red flag”
regarding the reliability of Consol’s cataloguing system. Tr. 458.

In sum, for the reasons stated above, it was not reasonable for PBS to conclude that the
second Consol map, on which it based its section 75.1200 map, was an accurate indicator of the
boundaries of the Harrison No. 2 Mine.

In considering PBS’s degree of negligence, the judge correctly took into account the
significant risk posed by the abandoned Harrison Mine, as PBS knew that this mine was full of
water and updip from the proposed Quecreek mine. 30 FMSHRC at 1093. The judge properly
noted that “[t]he amount of care demanded by the standard of reasonable conduct must be in
proportion to the apparent risk. As the danger becomes greater the actor is required to exercise
caution commensurate with it.” Id., quoting Prosser § 34, at 208; see also A. H. Smith Stone Co.,
5 FMSHRC 13, 15 (Jan. 1983) (holding that “[a]n operator must address a situation presenting a
potential source of explosion, as here, with a degree of care commensurate with that danger”).  

The judge noted testimony indicating that PBS had placed its production agenda ahead of
concerns for safety. 30 FMSHRC at 1093. In this regard, Lucas

testified that he used the
Consol map because he “had no choice” after years of searching for an accurate map of the
Harrison No. 2 Mine. Tr. 58. He agreed that at the time, getting a permit “was the most
important thing.” Id. This is evidence from which the judge could properly find that PBS placed
its desire to open a mine ahead of concerns for the safety of the miners who would be working in
the mine. This evidence, together with the evidence showing the unreasonable basis for assuming
that the second Consol map – an undated, uncertified map which was nothing more than “a line
drawing of some workings on a property map,” Tr. 417 – truly represented the extent of mining at
the Harrison No. 2 Mine, especially after the first map provided by Consol had proven to be
inaccurate, and the failure to take any additional precautions, justifies the judge’s conclusion that
PBS chose “to play Russian Roulette with the lives of miners.” 30 FMSHRC at 1093-94.

PBS offered testimony that it was common in Somerset County, Pennsylvania for
boundaries of abandoned mines to be depicted on the basis of maps that were not final or certified
maps. Tr. 77, 218. It suggests that the standard of care it exercised conformed to the standard in
existence in the MSHA District 2 area or the Somerset County area. While the standard behavior
in that geographic area is a factor that may considered in determining negligence, it does not mean
that the “reasonable person” standard is limited to that area. See Bell v. Jones, 523 A.2d 982, 987-88 (D.C. 1987) (holding that “the standard of care by which the professional acts of surveyors are
measured is a national standard, not a local or regional one”); Prosser, § 32, at 187-88.

Furthermore, even if PBS was correct in suggesting that the proper standard of care was a
local one, and that local practice did not require final certified maps, this would not insulate it

from a negligence finding. As one commenter has explained:

[C]ustoms and usages themselves are many and various; some are
the result of careful thought and decision, while others arise from
the kind of inadvertence, carelessness, indifference, cost-paring and
corner-cutting that normally is associated with negligence. . . .

Even an entire industry, by adopting such careless methods
to save time, effort or money, cannot be permitted to set its own
uncontrolled standard. . . . And if the only test is to be what has
been done before, no industry or group will ever have any great
incentive to make progress in the direction of safety.

Prosser, § 33, at 194-95 (footnotes omitted).

In arguing that substantial evidence does not support the judge’s negligence finding, PBS
asserts that the judge did not consider all of the relevant evidence. In addition to the arguments
already discussed, PBS contends that the judge “ignore[d] the fact that mining was over 200 feet
from the start of the [section 75.388(a)(3)] barrier and that Black Wolf was going to cease mining
in that direction well before the barrier.” PBS Br. at 27. This claim has no validity. Mining
stopped over 200 feet from the barrier because it intersected the old workings of the Harrison No.
2 Mine, which were 450 feet from where PBS believed them to be. Tr. 293-94; Stip. 97. Thus,
PBS stopped mining 250 feet from the barrier only because of the near-tragedy which gave rise to
this case. Moreover, the assertion that “Black Wolf was going to cease mining in that direction
well before the barrier” is not only unsupported by any reference to the record, but devoid of any
support in the record. Black Wolf President David Rebuck testified that the company “kept the
boundary, permit boundary line further than 200 feet from the position of the abandoned mines.”
Tr. 293. However, neither Rebuck nor any other witness testified that Black Wolf was going to
“cease mining in that direction well before the barrier.”

PBS also contends that the judge “failed to discuss the extent and nature of PBS’s search
for maps in his finding of negligence.” PBS Br. at 30. However, the judge clearly was aware of
the extensive search for maps by PBS and Musser. The judge distinguished between the search
for maps, and how PBS used the maps it found. In its use of the maps, the judge “f[ou]nd the
record in this matter replete with instances of PBS . . . failing to act conservatively and to err on
the side of safety.” 30 FMSHRC at 1093. The fact that the judge drew different conclusions from
those articulated by PBS in his review of the entire record does not mean that he failed to consider
the evidence.

PBS also argues that “[t]here is always some uncertainty about the location of inaccessible
workings of all abandoned mines,” and this uncertainty is accounted for by the requirement of “a
200 foot barrier rather than a 50 foot one” in section 75.388. PBS Br. at 30-31. This argument
does not undermine the judge’s negligence finding. The 200-foot-barrier requirement would have
applied, rather than a 50-foot barrier, unless the adjacent Harrison mine workings could have been
preshifted. 30 C.F.R. § 75.388(a)(3). In other words, this margin of safety is required even when
there is not the uncertainty that was present here. Moreover, the argument ignores the reality that
compliance with section 75.388 does not ensure that an operator which has an unreliable mine
map will avoid a catastrophic breakthrough into adjacent abandoned workings. That reality is
demonstrated by this case.

Hence, the record leads us to conclude that substantial evidence supports the judge’s
determination that PBS acted in a grossly negligent manner.

E.        Civil Penalties

At the time of trial, the Secretary had proposed penalties of $5,000 against PBS and
Musser. In her main brief before the judge, the Secretary specifically referred to the proposed
$5,000 penalty, which she considered a “minimum penalty,” and the stipulations and trial
exhibits, noted infra, in support of the proposed penalty. S. Tr. Br. at 31-32. It was not until the
Secretary filed her post-trial reply brief that she requested the judge “to assess a penalty of
$55,000 for each of these mine operators,” S. Tr. Reply Br. at 22, which he did.

On review, PBS argues that the judge failed to explain why his $55,000 penalty
determination substantially diverged from the amount originally proposed by the Secretary.
PBS Br. at 33-34. PBS also contends that the stipulations on which the judge relied applied to the
proposed penalty, not to the maximum penalty he imposed. Id. at 33.

In her brief, the Secretary asserts that the judge sufficiently explained why he assessed
penalties higher than the Secretary initially proposed. She relies on his statements that the
violations “were of the utmost gravity,” S. Br. at 41, quoting 30 FMSHRC at 1092. She also
relies on his finding that PBS acted in “a grossly negligent manner.” S. Br. at 41, citing 30
FMSHRC at 1094. However, the Secretary acknowledges that the judge’s penalty criteria analysis
was inadequate with regard to whether the $55,000 penalty was appropriate to the size of the
operator’s businesses and whether the proposed penalties would affect the operator’s ability to
continue in business. S. Br. at 41-42. She notes that the stipulations agreed to by PBS on these
penalty criteria were entered into assuming that the penalties would be $5,000. Id. at 41-42.

It is well-established that the Commission’s judges are accorded broad discretion in
assessing civil penalties under the Mine Act. Cantera Green, 22 FMSHRC 616, 620 (May 2000).
In determining the amount of the penalty, neither the judge nor the Commission is restricted by a
penalty recommended by the Secretary. Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983),
aff’d, 736 F.2d 1147 (7th Cir. 1984). However, such discretion is not unbounded and must reflect
proper consideration of the penalty criteria set forth in section 110(i) and the deterrent purposes of
the Act. Cantera Green, 22 FMSHRC at 620.

The Commission in Sellersburg, 5 FMSHRC at 293, explained that “[w]hen . . . it is
determined that penalties are appropriate which substantially diverge from those originally
proposed, it behooves the Commission and its judges to provide a sufficient explanation of the
bases underlying the penalties assessed by the Commission.” See also Dolese Bros. Co.,
16 FMSHRC 689, 695 (Apr. 1994) (“adequate findings are critical when a judge assesses a
penalty that significantly departs from that proposed by the Secretary”). In Cantera Green, the
Commission clarified that “[w]hile the findings and explanations relating to a penalty assessment
do not have to be exhaustive, they must at least provide the Commission with a basis for
determining whether the judge complied with the requirement to consider and make findings
concerning the section 110(i) penalty criteria.”

22 FMSHRC at 621.

We reject PBS’s contention that the judge failed to adequately explain the significant
departure from the Secretary’s initial proposed penalty. The judge relied primarily on the gravity
of the violation and PBS’s gross negligence to increase the proposed penalties from $5,000, which
was proposed by the Secretary, to $55,000, the maximum penalty allowed under the Secretary’s
regulations at the time of the violations. 30 FMSHRC at 1088, 1091-92, 1095. The Commission
held in Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001), that a judge did not abuse his
discretion by weighing the factors of negligence and gravity more heavily than the other four
statutory criteria. Also, the Commission has recently held that it is appropriate for a judge to raise
a penalty “significantly” based on his findings of extreme gravity and unwarrantable failure.
Spartan Mining, 30 FMSHRC at 725. Similarly, the judge was justified in emphasizing the
factors of gravity and negligence in this case.

However, we agree that a remand for further consideration of two penalty criteria is
necessary. In the judge’s initial discussion of the penalty criteria, he relied on a set of stipulations
that were admitted at trial, Gov’t Trial Stip. No. 1, and two exhibits that showed Musser’s and
PBS’s history of violations and production, Gov’t Ex. 1 and 2. The stipulations stated that the
proposed penalties “will not affect the ability . . . to remain in business;” that each of the
violations was abated in good faith; that the government exhibits referred to above accurately set
forth the operators’ production and history of violations;

and that those exhibits could be used in
determining the penalty assessments. Gov’t Trial Stip. No. 1, at 1. In finding that the $55,000
penalty was appropriate considering the size of PBS’s business and its ability to stay in business,
the judge erroneously based his conclusion on the stipulations, which were entered into on the
basis that the penalty would be $5,000. It is apparent that, given the judge’s substantial increase
in penalties for PBS, he did not give PBS an adequate opportunity to address the two criteria once
the proposed penalty was increased.

Accordingly, we vacate the judge’s penalty determination with regard to PBS. We remand
the case to the judge for the purpose of making findings concerning these two statutory criteria
based on the assumption that the penalty is $55,000, and for the purpose of assessing a penalty
based on the statutory criteria of section 110(i) of the Act.

---

Robert F. Cohen, Jr., Commissioner

Chairman Jordan, concurring in part and dissenting in part:

I join Commissioners Duffy and Cohen in affirming the judge’s determination that PBS
Coals, Inc. (“PBS”) violated 30 C.F.R. § 75.1200, and that the violation was significant and
substantial. I also join Commissioner Cohen’s opinion affirming the judge’s finding that PBS
acted in a “grossly negligent manner,” and in the section of his opinion vacating the judge’s
penalty determination with regard to PBS and remanding it to the judge.

Regarding the liability of Musser, I join Commissioner Cohen’s opinion holding that in
this case Musser was properly cited as an operator based on its status as an independent contractor
at the mine.

However, I dissent from my colleagues’ conclusion that substantial evidence does
not support the judge’s determination that Musser can be held liable for the violation of section
75.1200. I would find Musser liable and uphold the judge’s negligence finding.

Commissioner Cohen and I have determined that Musser can reasonably be considered an
operator by virtue of the services it performed as an independent contractor, in connection with
the issuance of the permit allowing mining at the Quecreek mine. Moreover, all three
Commissioners hearing the appeal of this case agree with the judge’s determination that the mine
map retained at the Quecreek mine did not accurately depict “[a]djacent mine workings within
1,000 feet,” as required by section 75.1200. Section 110(a) of the Mine Act states: “The operator
of a coal or other mine in which a violation occurs . . . shall be assessed a civil penalty . . . .”

30 U.S.C. § 820(a)(1). This provision has been construed as imposing strict liability, regardless of
fault, against the operator of a mine in which a violation occurs. A literal application of the
statute, therefore, would appear to support the imposition of a penalty against Musser. Musser is
an operator of the Quecreek mine; a violation occurred in that mine; the Act imposes strict
liability against an operator of a mine in which a violation occurs. Accordingly, Musser can be
held liable for the violation of section 75.1200.

Musser’s status as an operator, however, is that of “an independent contractor performing
services at the mine.” The fact that an independent contractor is considered an operator of a mine
does not necessarily mean that the contractor can exert control over the entire mine, or even over
the activities or area involved in the violation. A contractor is sometimes hired to perform a
particular skilled activity that is limited to a certain area of the mine. A contractor hired solely to
sink a shaft, for instance, would presumably have no control over how another contractor
constructed the preparation plant. Although the Mine Act imposes strict liability, Commissioner
Cohen is rightly mindful of the D.C. Circuit’s observation that “strict liability means liability
without fault. It does not mean liability for things that occur outside one’s control or
supervision.” Sec’y of Labor v. Nat’l Cement Co. of California, 573 F.3d 788, 795 (D.C. Cir.
2009) (citations omitted). Commissioner Duffy also properly notes Commission precedent
invoking limitations in holding an independent contractor liable for matters over which it has no
control. Slip op. at 40. I agree with my colleagues that it is pertinent to consider the issue of
control in determining Musser’s liability for the violation of section 75.1200.

My colleagues have concluded that Musser should not be liable for the violation of section
75.1200 because, in their view, Musser had no direct control over the preparation of the map
required to be maintained at the mine. Slip op. at 20-21, 39-40. It is true that PBS, not Musser,
prepared the map that was required under section 75.1200 to depict the adjacent mine workings
within 1,000 feet. 30 FMSHRC 1087, 1089-90 (Nov. 2008) (ALJ). Musser, however, prepared
the environmental permit map for the Quecreek mine and that map had to show, among other
things, an outline of abandoned mines adjacent to the proposed mine being permitted. 28
FMSHRC 699, 715 (July 2006) (ALJ). After plotting the outline of the Harrison No. 2 Mine on
the permit map, Musser drew a line between the outline of the Harrison No. 2 Mine and the
planned workings for the Quecreek No. 1 Mine. Stip. 71. This line represented a 200-foot-wide
hydraulic barrier between the Harrison No. 2 Mine and the Quecreek No. 1 Mine. Stip. 71, Jt. Ex.

11. It indicated the limit of planned mining for the Quecreek No. 1 Mine. Edwin Secor, a Musser
    employee, certified the permit map with the presumed outline of the Harrison No. 2 Mine and the
    established 200-foot-wide hydraulic barrier. Stip. 66. Mining would be limited by the
    requirement that a 200-foot barrier remain between the furthest development in the Quecreek
    mine and the furthest extent of the Harrison No. 2 mine.

Musser’s map was used as the base map for complying with section 75.1200’s
requirement that the operator keep an up to date and accurate mine map showing, among other
things, the “adjacent mine workings within 1,000 feet.” The adjacent mine workings placed on
the section 75.1200 map coincided with the boundaries depicted by Musser in the map submitted
as part of the permitting process. Indeed, the judge found that it was “standard practice for an
environmental permit map, such as the one Musser prepared and submitted on behalf of Quecreek,
to be used as the base map from which the mine map required by MSHA would be drawn” and
that “[t]he location of adjacent mines does not change once they are plotted on a permit map, but
are simply transferred over to the mine map required by MSHA.” 30 FMSHRC at 1089 (citing
Tr. 33, 196, 336). In this case “PBS prepared all of the maps of the Quecreek No. 1 Mine by
transferring the boundary of the Harrison No. 2 Mine as delineated on the permit map prepared by
Musser.” Id. (citing Tr. 198, 203-04).

The PBS engineers involved in drafting the mine map required under section 75.1200
never thought about making any changes to the boundaries of the Harrison No. 2 mine that were
delineated by Musser on the environmental permit map. Tr. 238-39. As one PBS witness
explained, the engineer generally takes the previous map and positions it correctly with reference
to the map being created. Tr. 335-36. Indeed the PBS expert witness testified that when
engineers certify a map created to comply with section 75.1200, they are certifying “that to the
best of their ability, they . . . positioned that abandoned mine map on their mapping as accurately
as possible.” Tr. 745.

The record provides substantial evidence for the judge’s conclusion that “Musser was in a
position to prevent the errors on the section 75.1200 map because Musser created, certified, and
sealed the permit map on which the section 75.1200 map was based.” 28 FMSHRC at 716.
Furthermore, as the judge pointed out:

Musser knew that even though its map would not specifically be
submitted to MSHA for the requirements of section 75.1200, the
research and plotting of the Harrison No. 2 Mine and the hydraulic
barrier line would be used in creating future maps of the Quecreek
No. 1 Mine. By sealing the permit map, Musser verified the map’s
accuracy.

Id.

Whether the section 75.1200 map would accurately reflect “the adjacent mine workings
within 1,000 feet” depended on whether the permit map accurately depicted those workings.
Musser prepared and certified the permit map. Admittedly, the section 75.1200 mine map
requires more information than “the adjacent workings” and Musser was not the entity that
actually prepared the section 75.1200 map. Nevertheless, this record offers substantial evidence
for the conclusion that Musser had sufficient control over the ultimate contents of the section
75.1200 map, at least at it pertained to the adjacent workings. Thus, it is not unreasonable to hold
Musser strictly liable as an operator, for the violation of section 75.1200 that occurred at the
Quecreek mine.

I also conclude that substantial evidence supports the judge’s finding that Musser acted in
a grossly negligent manner.

Musser’s reliance on the second Consol map to determine the
location of the abandoned Harrison Mine for the environmental permit map was unreasonable.
Musser knew that the Consol map was not dated, not marked final, and not certified by a
professional engineer or professional surveyor. Stips. 65, 66. Moreover, as mentioned above,
Musser’s Vice President at the time, David Lucas, testified that he was not satisfied with the
Consol map and did not consider it an accurate rendition of the Harrison No. 2 Mine. Tr. 57-58.
In fact, Lucas admitted that he always had reservations about placing the Harrison Saxman Mine
boundary on the permit map. Tr. 56-57. This uncertainty was compounded by the fact that the
receipt of the first incomplete Consol map should have put Musser on notice regarding the
reliability of Consol’s cataloguing system. Tr. 458. Nonetheless, Musser used the boundary from
the Consol map on its permit map which it knew would form the basis of the mine map required
under section 75.1200. Tr. 32-33; 59-60.

As the judge correctly noted, Musser’s negligence was also heightened due to the major
risk posed by the abandoned Harrison Mine. 30 FMSHRC at 1093-94. Given Musser’s reliance
on a map it did not consider accurate, its knowledge that the map it was preparing would be used
to prepare the section 75.1200 map, and its elevated duty of care, I would affirm the judge’s
determination that Musser acted in a grossly negligent manner.

---

Mary Lu Jordan, Chairman

Commissioner Duffy, concurring in part and dissenting in part:

I concur with Commissioner Cohen in reversing the judge’s finding that Musser
Engineering, Inc., was liable for a violation 30.C.F.R. § 75.1200, but I would do so on additional
grounds, discussed below. I also join Commissioner Cohen and Chairman Jordan in affirming the
judge’s finding that PBS Coals, Inc., violated the standard and that the violation was significant
and substantial in nature. I dissent, however, from my colleagues’ affirmance of the judges’s
determination that the violation was owing to PBS Coals’ gross negligence. Accordingly, I would
also vacate the judge’s penalty determination and remand that issue for further analysis, based on
a moderate level of negligence as originally charged by the Secretary and, only then if it becomes
necessary, for the purpose of taking into consideration all the appropriate penalty criteria set forth
in section 110(i) of the Act, as explained in the opinion of Commissioner Cohen.

My colleagues set forth an extensive summary of the facts in this case which I will not
iterate here, except to the extent that they are pertinent to the conclusions I have reached contrary
to those of the majority.

I.         Musser’s Liability.

Under the Pennsylvania Mine Act, which regulates coal mining in that state, mine
operators must secure permits from the Pennsylvania Department of Environmental Protection
(“DEP”). 28 FMSHRC at 701. When PBS acquired the land that would ultimately contain the
Quecreek Mine No. 1 Mine, it contracted with Musser Engineering to prepare a permit application
for submission to DEP. Id. Musser’s duties included the preparation of a mine map that would,
among other things, delineate “known workings of . . . abandoned, underground or surface mines.”
25 Pa. Code. § 89.154(a)(4) (emphasis added); see P. Reply Br. at 5. That required Musser to
secure maps for the four abandoned underground mines adjacent to the Quecreek permit area,
including the Harrison No. 2 Mine. 28 FMSHRC at 701-702; Stip.12.

Musser’s responsibility to PBS was limited to helping secure the DEP permit. The
engineering company had no involvement and no control over the PBS’s submissions to MSHA
when the mine opened in 2001 – three years after the initial permit application had been submitted
to DEP. Musser did not submit any maps to MSHA, and would not have been in a position to
place a disclaimer or notation on the section 75.1200 map that would have warned about any
uncertainties regarding the Harrison No. 2 Mine boundaries, assuming that such a disclaimer was
required under the circumstances. Musser’s role, even in preparing the state permit maps, was
limited in that it only prepared an initial map with proposed boundaries of the Quecreek No. 1
Mine that would not have intersected the Harrison No. 2 Mine at the point where the breakthrough
and inundation occurred. M. Reply Br. at 11 (citing Tr. 34, 153).

The citations issued to both Musser and PBS, respectively, state that the information
supplied by Musser was “used by PBS to show the Harrison No. 2 boundary on the map required
by 30 CFR 75.1200 for the Quecreek # 1 mine.” Citation No. 7322487, at 2 (Aug. 12, 2003), and
Citation No. 732488, at 2 (Aug. 12, 2003). However, the Secretary’s position in this case – that
Musser violated the standard because it was involved in preparing a map that later served as the
basis for PBS’s preparation of the map that Black Wolf maintained pursuant to section 75.1200 –
ignores the language of the standard. Moreover, the Secretary’s theory of liability regarding
Musser ignores the record evidence that indicates Musser’s limited role and PBS’s expansive role
in preparing the mine maps submitted to MSHA.

Section 75.1200, by its plain language, applies to “[t]he operator of a coal mine” and
requires that particular operator to maintain an accurate mine map “in a fireproof repository in an
area on the surface of the mine.” 30 C.F.R. § 75.1200. Thus, even if the judge were correct that
Musser “knew or had reason to believe” that its state mine map would later be used in preparing
maps that were required by MSHA (30 FMSHRC at 1092), Musser is not “the operator of a coal
mine” within the intended scope of section 75.1200.

See also Comm. on Education and Labor,
H.R. Rep. No. 91-563, at 54 (1969), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Part I Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 1084
(1975) (section “requires the operator of an active mine to have in a safe location on the surface
an accurate map of the mine”) (emphasis added).

The Commission’s decision in Martin County Coal Corp., 28 FMSHRC 247 (May 2006),
is instructive in this area. There, the Commission dismissed a citation issued against an
independent contractor for allegedly violating a reporting requirement that was applicable to “the
person owning, operating, or controlling” a waste impoundment. Id. at 270. The Commission
contrasted the specific reporting requirement with a general safety standard where the
responsibility for complying with the standard can rest with the production operator, an
independent contractor, or both. Id. Similarly, in Joy Technologies Inc., 17 FMSHRC 1303,
1309 (Aug. 1995), the Commission noted the limitations in holding an independent contractor
liable for matters over which it and its employees have no control.

The record in this proceeding fully reflects that PBS and Black Wolf had ultimate control
over the preparation, submission, and storage of the section 75.1200 mine map. Significantly,
even in the preparatory planning and submission of the state DEP maps, PBS worked closely with
Musser. Indeed, PBS vice-president Joseph Gallo testified that he “approved” the boundary lines
for the Harrison No. 2 Mine that were on the state permit map. Tr. 247. Finally, PBS’s research
did not end with Musser’s preparation of the state DEP application; PBS continued its efforts to
search for maps of the Harrison No. 2 Mine to establish its boundaries in anticipation of
submitting the map to MSHA for purposes of complying with section 75.1200. Tr. 321-22;
Stip. 60.

In contrast, Musser had no involvement and no control over the section 75.1200 map and
did not certify any maps for submission to MSHA. Musser did fully comply with Pennsylvania
law in submitting to the DEP the map that it did prepare, that is, a “general mine map” that
showed “[t]he location and extent of known workings of active, inactive or abandoned,
underground or surface mines.” 25 Pa. Code. § 89.154(a)(4) (emphasis added).

Thus, Musser’s limited role in preparing a “base” map that PBS used in preparing the
section 75.1200 mine map is insufficient to bring it within the parameters of the specific standard
involved in this case. Accordingly, I join Commissioner Cohen in reversing the judge’s holding
that Musser violated the standard.

II.        The Degree of Negligence Attributable to PBS.

As noted above, I find that the judge correctly found that PBS violated the standard and
that the violation was significant and substantial in nature. As for the level of negligence
chargeable to PBS, I conclude that substantial evidence does not support the judge’s conclusion
that the operator demonstrated “gross negligence” in its efforts to provide an accurate map of the
Harrison No. 2 Mine.

Because the Mine Act is a strict liability statute, an operator will be held liable if a
violation of a mandatory safety standard occurs regardless of the level of fault. Asarco, Inc.,
8 FMSHRC 1632, 1634-36 (Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 1989). In Asarco, the
Commission concluded that “the operator’s fault or lack thereof, rather than being a determinant
of liability, is a factor to be considered in assessing a civil penalty.” Id. at 1636.

Thus, the Mine Act’s principle of strict liability dictates that if an operator maintains a
mine map that is not accurate with regard to the features listed in section 75.1200, including
adjacent mine workings within 1000 feet, that operator is in violation of the standard. Once that is
established, it remains to determine the appropriate level of negligence attributable to the
violation.

The judge concluded that, in violating section 75.1200, PBS acted in a “grossly negligent
manner.” 30 FMSHRC at 1094. He based his conclusion in part on the fact that PBS had
received two contradictory maps from Consol, which should have put PBS on notice “that all was
not right.” Id. at 1093. The judge further noted that final, certified mine maps “were a rare
commodity,” but found that PBS should have taken additional precautions. Id. The judge
summarized the basis for his negligence conclusion, stating that he found it “incomprehensible”
that PBS failed to place any type of warning on the section 75.1200 map. Id. at 1094.

The judge relied principally on the testimony of David Lucas, a technical assistant
employed by Musser, to conclude that both Musser and PBS did not find the Consolidation Coal
map to be reliable. Id. at 1093. Mr. Lucas did testify that he was not satisfied with the map, as
the judge states, but that statement needs to be placed in context. Twice in his testimony, on cross
examination by counsel for PBS and on redirect by counsel for the Secretary, Mr. Lucas stated
that he agreed with his earlier statement, taken during an MSHA interview, that he, in fact, was
satisfied with the Consolidation Coal map. Tr. 69-70, 80-81.

This seeming contradiction is easily explained by other testimony by Mr. Lucas that the
judge ignored. In the course of discussing the procedure for verifying old maps, Mr. Lucas stated
that the only sure way to verify past mining development is to actually survey the underground
area in question. In the absence of such definitive plotting of prior mining activity, according to
Mr. Lucas, maps are not going to be completely reliable. Tr. 67-68, 79. Moreover, whatever
personal doubts Mr. Lucas might have had, his testimony does not indicate that these concerns
were shared with PBS.

The judge also relies on the testimony of MSHA witness Stanley Michalek to establish
that Consolidation Coal’s map repository was unreliable, inasmuch as PBS had to go back for a
second, more up-to-date map. 30 FMSHRC at 1093. According to the judge, PBS was put on
notice that, as Michalek put it, Consol no longer had its “system down. They [were] slipping.”
Id. (citing Tr. 458). It should be noted that Mr. Michalek admitted that he had never prepared a
map for purposes of obtaining a permit from the state of Pennsylvania, and that he had never
conducted a map search such as that undertaken by Musser and PBS in this case. Tr. 488-89.
Nevertheless, when asked what he would have done under the circumstances, he replied that he
would have done the same thing that Musser and PBS did. Tr. 490.

So the level of negligence assignable to PBS comes down to what steps the operator took
to ensure that the map ultimately submitted to MSHA was “accurate.” PBS asserts (PBS Br.
at 26-31), and I agree, that it performed appropriate and accepted due diligence in researching all
available sources for evidence of past mining development adjacent to the Quecreek mine. The
record is replete with statements by MSHA witnesses that Musser and PBS exercised such due
diligence in securing what they believed to be the most up-to-date maps. Tr. 348, 432, 501, 570.

The judge’s principal basis for determining that PBS was guilty of gross negligence was
the operator’s failure to include on the mine map a disclaimer or a dotted line to indicate
uncertainty regarding the boundary of the Harrison No. 2 Mine. 30 FMSHRC at 1094. The judge
had concluded as a threshold matter that had PBS included such a disclaimer on the map it
submitted to MSHA it would have been in compliance with section 75.1200. 28 FMSHRC
at 707. I find, and my colleagues apparently agree, that the standard by its terms does not require
the placing of a disclaimer on a map based on undated, uncertified prior maps, and I share
Chairman Jordan’s skepticism as to the efficacy of such a disclaimer in the circumstances
presented here. See slip op. at 18 n.20. I would add that PBS believed the map it did submit to
MSHA was, in fact, reliable, thus obviating the need to include a disclaimer in the first place.
Finally, it seems to me that if the standard does not require a disclaimer, it is not logical to
conclude that failure to provide one in these circumstances would support a finding of any
negligence, much less gross negligence.

PBS argued below that is was impossible to comply with the standard, because no final
certified map of the Harrison No. 2 Mine was available. 28 FMSHRC at 706. The Secretary
countered, and the judge agreed, that PBS could have prepared an “accurate” mine map “by
indicating in some way on the map that the exact location of the adjacent workings in the Harrison
No. 2 Mine was unknown.” S. Br. at 21 (emphasis added); see 28 FMSHRC at 707; S. Br.
at 22 n.18.

Because the Secretary has maintained that the language of the standard is clear, the
Secretary’s placing of this additional gloss on the standard is neither necessary nor legally correct
under Chevron, 467 U.S. at 842-43. And while 30 C.F.R. § 75.1200 is a reiteration of section 312
of the Mine Act and section 312 of the Coal Act, there is nothing in the Mine Act, the Coal Act,
nor in the legislative history of either that would support such a reading of the standard.

I therefore conclude that the Mine Act and the Secretary’s regulations do not provide for
such a practice, and none can be read into the regulation when its language is so abundantly clear.
Any requirement that the operator indicate in some way that the exact location of an adjacent mine
is unknown could only be imposed after notice-and-comment rulemaking.

Notwithstanding the lack of any statutory or regulatory basis for requiring a disclaimer on
a section 75.1200 map, the judge seized on the lack of a disclaimer to focus on PBS’s actions
from a general negligence perspective. 30 FMSHRC at 1093-94 (“As the danger becomes greater
the actor is required to exercise caution commensurate with it”) (quoting W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 34, at 208 (5th ed. 1984)).

The judge stated that he
considered it “incomprehensible” that PBS did not place any type of warning on the section
75.1200 map. Id. at 1094.

While the judge’s sentiments are understandable, they are not grounded in the plain
language of the standard. In A. H. Smith Stone Co., 5 FMSHRC 13 (Jan. 1983), the Commission
explained the nature of a negligence finding under section 110(i): “Each mandatory standard thus
carries with it an accompanying duty of care to avoid violations of the standard, and an operator’s
failure to meet the appropriate duty can lead to a finding of negligence if a violation of the
standard occurs.” Id. at 15. Under the Commission’s holding, it is clear that the negligence
finding must be grounded in the violation of the standard itself, not by general principles of tort
law and general notions of what would be desirable. In other words, the operator’s duty of care is
prescribed by the standard. In Smith Stone, the Commission rejected the judge’s reasoning that
the operator failed to engage in a “safe practice,” because the Commission concluded that its
examination was limited to what the standard required. Id. at 16.

As the Commission’s decision in Smith Stone indicates, the “duty of care” that PBS was
required to meet was to maintain an accurate mine map. Obviously, PBS failed to do this, and the
judge’s examination of the operator’s conduct should be focused on the strength of its efforts to
locate an accurate mine map of the Harrison No. 2 Mine and its preparation of the section 75.1200
map. The judge instead relied upon a practice, apparently only beginning to emerge prior to the
Quecreek inundation, that an operator indicate in some way unknown areas on a mine map.

However beneficial or exemplary this practice might be, the standard at issue was silent on this.
Significantly, there was an absence of guidance from MSHA to even suggest that operators should
follow this practice.

Moreover, adopting the judge’s theory of negligence in this case would have the effect of
imposing a general duty clause on mine operators similar to that imposed on general industry by
section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1). By its
terms, section 104(a) of the Mine Act limits citations to an operator that has violated the Act or
any mandatory standard. 30 U.S.C. § 814(a); see also Conf. Rep. No 95-461, at 38-39 (1977),
reprinted in Senate Subcomm. on Labor Comm. on Human Res., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 1316-17 (1978) (Mine Act as enacted rejected
“general duty” clause that would have permitted citing operators for failing to furnish safe and
healthful working conditions and to comply with rule and regulations under the Act).

Here, the judge’s reliance on an arguably desirable but unpromulgated practice to require a
disclaimer on a mine map stands on a similar footing to the “safe practice” rationale which the
Commission rejected in Smith Stone. Thus, from the judge’s decisions, it is evident that his
negligence findings were not limited to PBS’s actions in failing to provide an accurate map under
section 75.1200. In addressing negligence in his first decision, the judge responded to PBS’s
argument that there was nothing in the standard or other guidance from the Secretary that required
PBS to do more than depict the workings of an adjacent inaccessible mine, noting that “[t]here are
many prophylactic actions taken by reasonably prudent people that are not set forth in the
statutes.” 28 FMSHRC at 710 (emphasis added). In further response to PBS’s argument that it
had met or exceeded “the standards of the mining community,” the judge stated that, aside from
those standards, “given the gravity of the accident, I cannot dismiss basic common sense.” Id.
at 711. Again, while these sentiments may well be of some moment in a case brought in tort, they
are inapposite to the determination of culpability under the Mine Act. Umbrageous hindsight
must not be substituted for legal analysis consistent with Commission precedent.

Consequently, I conclude, contrary to the judge’s reasoning, that Commission case law
establishes that PBS is not guilty of “gross” or high negligence. See also Utah Power & Light
Co., 12 FMSHRC 965, 972 (May 1990) (operator that followed a clean-up plan believing that
such conduct was consistent with applicable regulations not guilty of aggravated conduct
constituting more than ordinary negligence). In any event, even if the Secretary’s regulations left
room for interpretative guidance that indicated the need for map notations in light of uncertain
boundaries, she has issued no guidance here that has been ignored. See also Midwest Minerals,
Inc., 12 FMSHRC 1375, 1379 (Jul. 1990) (operator not guilty of high negligence where seemingly
conflicting MSHA policies left operator in doubt as to what was required for compliance).

Finally, in its recent decision in Spartan Mining Co., 30 FMSHRC 699 (Aug. 2008), the
Commission held that negligence findings cannot be based on an operator’s actions after a
violation has occurred; rather the judge’s examination must focus on the operator’s actions before
the violation occurred. Id. at 708. Here, PBS’s failure to provide a notation or warning on a map
to indicate uncertainty as to boundaries is, at best, inaction that followed its failure to provide an
accurate map with boundaries under section 75.1200.

In summary, I would reverse the judge’s finding of gross negligence. To my mind, nothing
presented before the judge below warranted a finding in excess of the moderate negligence
originally charged by MSHA after an extraordinarily thorough investigation of the circumstances
leading up to the Quecreek inundation.

---

Michael F. Duffy, Commissioner

Distribution

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center

401 Liberty Avenue, Suite 1340

Pittsburgh, PA 15222

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

Cheryl C. Blair-Kijewski, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021