Secretary of Labor v. Lehigh Anthracite Coal, LLC and Secretary of Labor v. Shane T. Wetzel, employed by Lehigh Anthracite Coal, LLC

Plain-English summary

Lehigh foreman Shane Wetzel authorized a miner to enter an open pit twice beneath unstable highwalls and banks to attach chains to a buried dragline bucket. The ALJ found an S&S and unwarrantable violation, held Wetzel individually liable under section 110(c), but classified the operator's and Wetzel's negligence as high rather than reckless. The Commission majority held that the judge relied on legally invalid mitigation. Wetzel was the only supervisor on duty, recognized the potentially fatal conditions, and nevertheless exposed a miner to them; the precautions he took were ineffective and his good-faith belief was not objectively reasonable. The Commission found reckless disregard, vacated the $6,996 and $1,000 penalties, and remanded for reassessment. Acting Chairman William I. Althen dissented, arguing that substantial evidence supported the judge's high-negligence findings.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1006(a)
• Outcome: Reckless disregard replaced high negligence, and the operator and individual penalties were vacated and remanded for reassessment.
• Key point: A supervisor's precautions do not mitigate negligence when they are ineffective against a recognized lethal hazard and rest on no objectively reasonable belief that the work is safe.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY OF LABOR,                            :        

MINE SAFETY AND HEALTH                 
:                                

ADMINISTRATION (MSHA)                    
:        

:

v.                                              
:         Docket Nos.    PENN 2014-108              

:                                 PENN 2014-109                    

LEHIGH ANTHRACITE COAL, LLC         
:

:

SECRETARY OF LABOR,                            :        

MINE SAFETY AND HEALTH                 
:                                

ADMINISTRATION (MSHA)                    
:        

:                         

v.                                              
:         Docket No.     PENN 2016-135              

:                                                        

SHANE T. WETZEL, EMPLOYED BY       
:

LEHIGH ANTHRACITE COAL, LLC         :

Before: Althen, Acting
Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

BY: Jordan, Young, and Cohen,
Commissioners

These
proceedings, which arise under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involve enforcement
actions taken by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) against Lehigh Anthracite Coal, LLC (“Lehigh”), and
Shane Wetzel, a foreman employed by Lehigh. The alleged violations arose from
an incident in which a miner worked under a dangerous highwall and bank. MSHA
issued a citation to Lehigh alleging a violation of 30 C.F.R. § 77.1006(a) [1]
that was significant and substantial (“S&S”) and the result of Lehigh’s
unwarrantable failure to comply with the standard. [2]
MSHA proposed a civil penalty of $23,229 for the alleged violation. In
addition, MSHA proposed a penalty of $2,900 against Wetzel individually under
section 110(c) of the Mine Act [3]
for knowingly authorizing the violation.

A
Commission Administrative Law Judge concluded that the operator had violated section
77.1006(a), that the violation was S&S and caused by unwarrantable failure,
and that Wetzel was liable under section 110(c) for knowingly authorizing the
violation. 38 FMSHRC 2782, 2794-2805 (Nov. 2016) (ALJ). However, the Judge
found that Lehigh’s and Wetzel’s negligence was “high” rather than “reckless,”
as alleged by MSHA, and assessed penalties of $6,996 and $1,000 against them,
respectively. Id. at 2800-02.

The
Secretary of Labor petitioned the Commission for review of the Judge’s
negligence findings and assessment of penalties. We granted review and heard
oral argument. For the reasons that follow, we vacate and remand for further proceedings.

I.

Factual and Procedural Background

A.        Facts

Lehigh operates
the Tamaqua Mine, an open pit anthracite coal mine in Tamaqua, Pennsylvania. In
order to extract coal, Lehigh uses explosives to blast open the pit, removes
the rock covering the coal to expose the coal seam, and then digs the coal from
the pit with an excavator. [4]
The rock is deposited in spoil piles located at the north and south sides of
the top of the pit. A highwall is created as the pit increases in depth.

When the highwall
becomes too unstable to keep an excavator in the pit, coal is removed from the
pit using a dragline, a large, track-mounted vehicle which is operated from the
surface beside the pit. Id. at 2784-85. The dragline has a boom crane
that extends over the pit and a bucket attached to the boom. The bucket is
lowered into the pit and then digs and scoops coal as it is scraped across the floor.
After it has been loaded, the bucket is lifted and the extracted coal is dumped
in a collection pile at the side of the pit. The bucket is nine feet long, six
feet wide, and four feet deep, and can hold seven cubic yards of material. Id.
at 2785.

At the time in
question, the highwall, which was located on the north side of the pit, was
nearly vertical, and the south wall had a slope of about 50 degrees. The mine
resembled the shape of a modified “V,” in that the distance between the walls
at the top was approximately 50-60 feet, while the distance between the walls
at the floor of the pit was approximately 10-30 feet. Id. at 2784.

On the night of
June 19, 2013, Larry McNeal, the dragline operator, stepped out of his cab to
replace a light on the dragline while the bucket was resting on the floor of
the pit. While he was out of the cab, McNeal felt two vibrations, which turned
out to be coal falling off of the face of the south wall. The fall of coal
buried the bucket. McNeal used the dragline controls in an effort to raise the
bucket, but the bucket would not budge. Id. at 2785; Tr. 60; Ex. S-3 at
3; Ex. S-10; Ex. S-20 at 1.

McNeal called the
second shift foreman, Shane Wetzel. Wetzel testified that, as the foreman, he
was responsible for safety on his shift and making sure that miners in his
charge complied with MSHA’s regulations. If miners did not comply with those
regulations, then Wetzel had the authority to redirect them and have them
perform their work safely. Tr. 455-56.

Wetzel and McNeal tried
repositioning the dragline. However, they were unable to pull the bucket free. Tr.
36; Ex. S-3 at 3.

Foreman Wetzel
called truck driver Erik Osenbach and excavator-operator Richard Rudinsky to
the pit.  They considered abandoning the bucket, which would have sacrificed
production for the shift, but discarded that option. They also considered
building a road to access the pit, but rejected that option as infeasible or
requiring too much time and loss of production. 38 FMSHRC at 2785; Tr. 38, 86-87,
328, 354, 356, 433-34.

Instead, they
decided that one of them would descend into the pit to attach a chain to the
“crow’s foot” [5]
on the bucket so that an excavator, attached to the other end of the chain,
could pull the bucket out. Foreman Wetzel proposed going into the pit himself,
but Osenbach volunteered to go because Wetzel had “a wife and kids.” 38 FMSHRC
at 2786. Rudinsky drove the excavator to the pit, and Osenbach entered the pit
and attached the chain. [6]
When the excavator attempted to pull the bucket out of the muck using the
chain, the chain broke. Id. at 2785-86.

The crew then
decided to try pulling the bucket out with a cable. Rudinsky used the excavator
to dig a bench that was five feet down from the top of the west bank. The
excavator was moved onto this bench to bring it closer to the buried bucket. Tr.
361.

Osenbach entered
the pit a second time and hooked a cable to the bucket’s control chains. The
second attempt to use the excavator to pull out the bucket also failed. Osenbach
was not wearing a safety belt or line during either of his two entries into the
pit. Each of Osenbach’s trips into the pit lasted approximately two minutes. 38
FMSHRC at 2785-86, 2796, 2802.

At 2:43 a.m.,
Wetzel sent an email to first-shift Foreman Louis Mitchalk informing him of the
stuck bucket. Ex. S-13. When Mitchalk arrived at the pit a few hours later, he
saw evidence that a miner had entered the pit and notified Lehigh’s safety
director, John Hadesty. Tr. 234-35.

Mitchalk and his
crew then retrieved the stuck bucket by cutting the buried bucket free,
attaching another bucket to the dragline, and using the new bucket to dig out
the buried bucket.  No miners entered the pit during the retrieval. Mitchalk
testified that this method had been employed five times before by the operator.
38 FMSHRC at 2787; Tr. 70-73, 246, 256.

During the week
of June 19, the operator conducted an investigation of the incident,
interviewed witnesses, and gave written warnings to Wetzel, McNeal, Osenbach, and
Rudinsky. Lehigh decided to forego its ordinary first step of providing verbal
warnings because the miners’ conduct was so dangerous. In addition, the
operator formalized the procedure it had used to recover the buried bucket,
sought and eventually received approval from MSHA for the procedure as part of
its ground control plan, and provided training on the new procedure. 38 FMSHRC
at 2787, 2802; Tr. 124-26, 245-46, 415-16; Ex. S-5 at 3, Ex. S-14, Ex. S-19 at
3.

On June 24, MSHA
received an anonymous complaint about the incident. MSHA Supervisor Tom Yencho
called the mine and issued a verbal imminent danger order over the phone. That
same day MSHA Inspector David Labenski traveled to the mine, interviewed
employees, and determined that no imminent danger was present since the
situation had occurred five days earlier.  

MSHA investigated
the matter, using in part the materials gathered by the operator. [7]
On July 3, 2013, MSHA issued Citation No. 8000958, alleging an S&S violation
and an unwarrantable failure to comply with section 77.1006(a) for allowing an
employee to work near or under a dangerous highwall or bank. It also issued Citation
No. 8000959, alleging an S&S and moderately negligent violation of 30
C.F.R. § 77.1710(g) for failure to wear safety belts and lines where there is a
danger of falling. In addition, the Secretary later sought a section 110(c)
civil penalty against Wetzel for his involvement in the violation of section
77.1006(a).

Lehigh and Wetzel
challenged the citations, the special findings in the citations, and the penalty
amounts. The matter proceeded to hearing.

B.        The Judge’s
Decision

The Judge
affirmed the violation of section 77.1006(a), concluding that Lehigh violated the
standard by permitting Osenbach to work near or under a dangerous highwall and
bank. [8]
38 FMSHRC at 2793-95. The Judge found that the highwall on the north side of
the pit was “cracked and contained unconsolidated material that could fall at
any time on a miner below.” Id. at 2794. He further concluded that the
spoil banks on the south side had been undercut and posed a falling hazard. The
Judge found that the coal seam on the south side was “cracked and fractured,” and
that there was between a few hundred pounds and 10 tons of coal still hanging
at the time Osenbach entered the pit. Id. at 2794, 2797. He stated that
the two collapses from this coal seam a few hours earlier “not only indicated a
high risk of further collapse, but also removed much of the lateral support for
the remaining coal and spoil pile that had yet to fall” and therefore increased
the risk of another fall. Id. at 2794. The Judge credited
testimony that the limited space in the pit ensured that Osenbach would inevitably
be near, if not under, those dangerous conditions. He concluded that Osenbach
traveled to the bottom of the pit, and that the crow’s foot that he reached was
within 10 feet of both the northern highwall and southern bank hazards. Id.
at 2794-96.

The Judge also
determined that Lehigh’s violation of section 77.1006(a) was S&S and had
been caused by an unwarrantable failure. In concluding that the violation was
S&S, the Judge found that it was “more than reasonably likely that material
could have fallen from the highwall, spoil bank, or coal seam while Osenbach
was down in the pit,” that it was “highly likely that an injury would have
occurred,” and that any injury “could have reasonably been expected to be
fatal.” Id. at 2795, 2797. The Judge based his unwarrantable failure
determination in part on findings that the cited conduct posed a high degree of
danger which was known and obvious to Lehigh. Id. at 2797-99.

Furthermore, the Judge
held that Wetzel had authorized the violation of section 77.1006(a) within the
meaning of section 110(c) of the Mine Act. Id. at 2800-01. He reasoned
that Wetzel had admitted that it was his decision to send Osenbach into the
pit, that the hazards in the pit were obvious, and that Wetzel had acknowledged
that there was a level of risk in sending Osenbach into the pit by stating that
there was a “moderate” level of risk and a “somewhat likely possibility . . .
of some of the rocks coming down into the pit if someone was in there.” Id.

Finally, the
Judge concluded that Lehigh’s and Wetzel’s violative conduct resulted from “high
negligence” rather than “reckless disregard,” as alleged by MSHA, because
Wetzel had been willing to go into the pit himself, Wetzel had a genuine
misunderstanding regarding the hazards presented by the conditions, and some
efforts had been undertaken to minimize Osenbach’s exposure to hazards while in
the pit. Id. at 2800, 2801. The Judge assessed penalties of $6,996 and
$1,000 against Lehigh and Wetzel, respectively, rather than the penalties of
$23,229 and $2,900 proposed by the Secretary.

The Secretary
filed a petition for discretionary review challenging the Judge’s negligence determinations
and assessment of penalties, which we granted.

II.

Disposition

The Secretary
argues that the Judge’s conclusion that MSHA failed to establish reckless
disregard is legally invalid and that the evidence of record and the Judge’s
own factual findings support such a determination. Lehigh
and Wetzel did not file a cross-petition challenging any of the Judge’s legal
determinations and request that the Judge’s decision be affirmed.

We accept as
undisturbed the Judge’s factual findings and credibility determinations and
review his negligence holdings based on those findings. [9]
According to the Judge’s findings, foreman Wetzel authorized Osenbach to enter the
pit in circumstances that posed a high risk of fatal injuries to Osenbach -- not
once but twice -- to attempt to avoid delays in production. 38 FMSHRC at 2785,
2795, 2797. Such findings support only one conclusion -- that Wetzel recklessly
disregarded Osenbach’s safety, both as to Lehigh’s violation of section
77.1006(a) and Wetzel’s knowing authorization of that violation as Lehigh’s
agent.  

Section
110(i) of the Mine Act authorizes the Commission to assess civil penalties for
violations under the Act and its implementing regulations, and includes
negligence as one of the six factors the Commission is required to consider in so
assessing a penalty. [10]
The Commission has recognized that in assessing a civil penalty, there is no
requirement that equal weight be assigned to each of the section 110(i)
factors. Jim Walter Res., Inc. , 36 FMSHRC 1972, 1979-80 (Aug. 2014) (“ JWR ”).
“Rather, ‘Judges have discretion to assign different weight to the various
factors, according to the circumstances of the case.’” Id. at 1979 (citations
omitted).

MSHA’s
regulations at 30 C.F.R. Part 100 address how MSHA calculates most proposed
penalties in light of the section 110(i) factors applied by the Commission in
the assessment of penalties. With respect to negligence, “MSHA has adopted a
formulaic approach, categorizing negligence into five different levels from
‘no’ negligence to ‘reckless disregard,’ based on the existence of a mitigating
circumstance, or multiple such circumstances, for the violation.” Brody
Mining, LLC , 37 FMSHRC 1687, 1702 (Aug. 2015) (citations omitted).

MSHA
defines “reckless disregard” to mean that the “operator displayed conduct which
exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d). 

Commission
Judges are not bound in any way by the definitions in Part 100 when considering
an operator’s negligence. Brody , 37 FMSHRC at 1702. Rather, a Judge “may
consider the totality of the circumstances holistically.” Id. Nor was
the Judge required to use MSHA’s penalty point system in his penalty assessment.
JWR , 36 FMSHRC at 1980 (citations omitted) (“In determining the amount
of a penalty, neither the Judge nor the Commission is restricted by the penalty
proposed by the Secretary.”). The Judge’s decision properly acknowledged this principle
and correctly articulated the appropriate framework for determining negligence
under the Act. 38 FMSHRC at 2790-91.

In
analyzing Wetzel’s negligence, however, the Judge noted the Secretary’s
definition of “reckless disregard,” 38 FMSHRC at 2800 n.7, and determined that
Lehigh’s and Wetzel’s level of negligence was high rather than reckless for
three reasons. First, he concluded that Wetzel’s willingness to enter the pit
himself showed a failure to properly evaluate the obvious safety risks around
him rather than a reckless indifference to the safety of Lehigh employees. Second,
he reasoned that Wetzel had a genuine misunderstanding of the hazards present,
although Wetzel’s belief was not reasonable. Third, the Judge explained that
the efforts taken to ensure that Osenbach stayed away from the longwall and did
not linger in the pit demonstrated some degree of care to comply with the
standard, although those efforts were “wholly inadequate.” 38 FMSHRC at 2800.

The
Judge’s rationales for his negligence determinations are legally invalid.

In
analyzing an operator’s degree of negligence, the Commission has recognized
that “[e]ach mandatory standard . . . 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.” A.H. Smith Stone Co. , 5 FMSHRC 13, 15 (Jan. 1983). In
determining whether an operator met its duty of care, we consider what actions
would have been taken under the same circumstances by a reasonably prudent
person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation. Brody , 37 FMSHRC at 1702
(citations omitted); U.S. Steel Corp. , 6 FMSHRC 1908, 1910 (Aug. 1984).

First,
we note that this case spotlights the difficulties that arise from applying,
too literally, MSHA’s definitions of
negligence in the assessment of penalties by the Commission and its Judges. While
such definitions may appropriately guide inspectors, their rigidity adapts
poorly to the holistic consideration of negligence by Commission Judges after a
hearing. See Hidden Splendor Res., Inc. 36 FMSHRC 3099, 3105-08 (Dec.
2014) (Comm’r Cohen, concurring).

In
particular, MSHA’s definition of “reckless disregard,” which focuses on whether
an operator has exhibited the “slightest degree of care,” is either inappropriately
subjective or, if read literally, almost indistinguishable from intentional
misconduct by an operator’s agent. The definition is therefore not well suited
to the objective “reasonably prudent person” standard used by Commission Judges.

We
thus suggest Commission Judges should be guided by broader and more general
common-law standards more congruent with
the Act’s intent and purpose, i.e., to prioritize the health and safety of
miners. “Reckless disregard” should therefore include, for example, situations
where an operator knows or has reason to know of facts which create a high
degree of risk of physical harm, and deliberately proceeds to act, or fails to
act, in conscious disregard of, or indifference to, that risk. Cf.
Restatement (Second) of Torts § 500 cmt (Am. Law Inst. June 2017). [11]
Thus, the operator’s conduct would be measured objectively against the conduct
under the same circumstances of a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purpose of the
regulation at issue. See pp. 10-11, infra.

The
Mine Act recognizes that the “first priority . . . in the . . . mining industry
must be the health and safety of its most precious resource – the miner.” 30
U.S.C. § 801(a). The Mine Act places primary responsibility for maintaining
safe and healthful working conditions in mines on operators, with the
assistance of their miners. 30 U.S.C. § 801(e). We have long recognized that
mine management should be held to a high standard of care. See Midwest
Material Co. , 19 FMSHRC 30, 35 (Jan. 1997) (“a foreman . . . is held to [a]
high standard of care”). See also Jim Walter Res., Inc. , 36 FMSHRC 1972,
1982-83 (Aug. 2014) (Comm’rs Young and Cohen, dissenting) (stating that, while
not binding on the Commission, section 100.3(d) puts operators on notice of the
Secretary’s expectation of the “high standard of care” operators owe to their
miners.).

Managers
not only act as directly responsible stewards for the health and safety of
their miners, they also ensure that miners will conduct themselves as the Act
envisions, in a manner that protects their own health and safety and that of
their co-workers. “Managers and supervisors in high positions must set an
example for all supervisory and non-supervisory miners working under their
direction. Such responsibility not only affirms management’s commitment to
safety but also, because of the authority of the manager, discourages other
personnel from exercising less than reasonable care.” Wilmot Mining Co. ,
9 FMSHRC 684, 688 (Apr. 1987). Wetzel, as a foreman, must be held to this
higher standard of care. [12]

This,
then, is the appropriate scope of the duty that adheres to an operator’s agent
under the Act: It is not a duty to exercise reasonable care in the abstract,
but rather the obligation to exercise a thoughtful prudence that takes into
account the nature of mining, the mine environment, and the purposes of the
mandatory safety standards implicated by the circumstances encountered therein.

Wetzel’s conduct
as a supervisory agent of Lehigh fell far short of his duty under the Act. Contrary
to the Judge’s first rationale, Wetzel’s willingness to enter the pit himself
does not amount to a factor which reduces the degree of negligence. As a
foreman, Wetzel is held to a very high degree of care, and his actions set an example
for other employees. Entering the pit himself and working below a dangerous
highwall and bank in conditions that the Judge found to be highly likely to
result in fatal injuries would have posed the same unjustifiable risks to
Wetzel as to other miners.

Furthermore, Wetzel’s
entry into the pit would have still unjustifiably set an example of improperly prioritizing
the retrieval of the bucket and resumption of production over miners’ safety. In
any event, Wetzel ultimately authorized a miner on his crew to go into the pit
instead of himself – not once, but twice. Doing so showed no meaningful
consideration of the exposure to danger inherent in the task.

Nor does
the Judge’s second reason – Wetzel’s misunderstanding of the hazards presented
by authorizing Osenbach to enter the pit twice – reduce the level of negligence
attributed to the violative conduct. The Judge determined that Wetzel’s belief
that the south slope did not present a hazard and that Osenbach would be far
enough away from the northern highwall hazards was not reasonable, even if it
were genuine. 38 FMSHRC at 2800. As we have noted, the operator’s agents are
held to a very high standard of care. This duty requires a very high standard
of care in evaluating hazards, and yet the Judge found that Wetzel’s assessment
of the danger was unreasonable.

The
Commission has held that “if an operator has acted on an objectively reasonable
and good faith belief that the cited conduct was in compliance with applicable
law, such conduct will not be considered to be the result of an unwarrantable
failure when it is later determined that the operator’s belief was in error.” Oak
Grove Res., LLC , 38 FMSHRC 1273, 1279 (June 2016) (citations omitted). Although
this principle arose in the context of unwarrantable failure determinations, the
Commission has engaged in similar considerations when reviewing a Judge’s
negligence determinations. See, e.g., DQ Fire & Explosion Consultants,
Inc. , 36 FMSHRC 3090, 3097 (Dec. 2014); Mach Mining, LLC , 36 FMSHRC
1525, 1527 (June 2014).

In
this case, the Judge correctly determined that the exception for “good faith”
errors did not excuse the unwarrantable nature of Lehigh’s violation of section
77.1006(a). He determined that Wetzel’s belief that the violative conduct was safe
was not reasonable given the obvious nature of the danger presented. 38 FMSHRC
at 2799. Wetzel’s unreasonable belief is similarly unavailing in mitigating the
negligence determination for penalty purposes. Not only was the belief
unreasonable, it disregarded what the Judge himself characterized as an
“obvious” danger “highly likely to result in a fatal injury to a miner.” Id.
at 2797-99.

The subjective
“genuineness” of Wetzel’s belief does not override the requirement that a good
faith belief must be objectively reasonable. As noted, the Commission applies an
objective, rather than a subjective, standard of care and considers what
actions would have been taken by a reasonably prudent person under the same
circumstances. Thus, even accepting the Judge’s factual finding that Wetzel did
not appreciate the obviously high degree of risk present, a reasonably prudent
person in his position would have done so. See, e.g., id. at 2798
(finding that miner’s statement that Wetzel should not enter the pit because he
had a wife and children, even if “made half in jest as the Respondent argues, .
. . [is] in part a recognition of the high level of danger associated with the
retrieval effort and that Wetzel should have understood this.”).

We
further conclude that the Judge erred with respect to his third rationale for
his negligence determination. In order to reduce the level of negligence, the
operator’s actions would have to correct the hazardous condition. For instance,
the D.C. Circuit has stated that a Judge reasonably concluded that an
operator’s actions that “neither prevented nor corrected the
hazardous condition” did not amount to a factor mitigating high negligence. Mach
Mining, LLC v. Sec’y of Labor , 809 F.3d 1259, 1265 (D.C. Cir. 2016)
(emphasis in original). Similarly, the Commission has concluded that the fact
that a hazardous area was examined before it was entered did not reduce
negligence because the exam “did not eliminate the risk . . . but rather served
to measure the risk presented.” BethEnergy Mines, Inc. , 14 FMSHRC 1232,
1244 (Aug. 1992).

The
actions that were taken to reduce the hazards for Osenbach as he twice entered
the pit were effectively meaningless in terms of realistically reducing those
hazards. Nor did the actions demonstrate a real attempt to comply with the
standard’s directive. As part of the retrieval plan, the area was illuminated
by the dragline and viewed to see if material was moving, Osenbach attempted to
keep his distance from the highwall and to minimize his time in the pit, and
the dragline operator was provided with a horn to alert Osenbach if conditions
became more hazardous. See n.6, supra . However, the Judge
credited testimony that the lighting was inadequate for illuminating large
portions of the pit (38 FMSHRC at 2796-97), and that, given the pit’s
configuration and where he traveled, Osenbach would inevitably be exposed to the
highwall, the spoil bank and the coal seam hazards ( id. at 2794-95),
which is expressly prohibited by the safety standard. Indeed, the Judge himself
determined that such measures were “wholly inadequate.” Id. at 2800. [13]

Evidence
that such wholly inadequate efforts were undertaken in “good faith” does not
change the conclusion that such factors do not reduce the level of negligence. 38
FMSHRC at 2800. As discussed above, the subjective good faith of such actions
does not reduce negligence where such actions are based on an objectively
unreasonable belief. Cf. IO Coal Co. , 31 FMSHRC 1346, 1358 (Dec. 2009)
(stating that the Judge’s finding that a foreman “‘was not indifferent to his
responsibilities’ . . . and ‘tried, but failed to meet the standard of care
required of him,’ . . . does not dispose of the issue of reasonableness”).

In
sum, the Judge’s determination that Lehigh’s and Wetzel’s negligence was “‘high’
rather than ‘reckless’” was based on legal error. 38 FMSHRC at 2800, 2802. Under
the facts of this case as found by the Judge, while the level of negligence did
not involve a conscious intention to cause harm to a miner, it did involve a
conscious choice to take actions with knowledge of facts that would disclose to
a reasonable foreman an unjustifiably high risk of potentially fatal injury to
a miner.

Commission
Judges have consistently found operators’ negligence to be “reckless disregard”
where the violation was found to be motivated by a desire to avoid the loss of
production. See RAG Cumberland Resources, LP, 23 FMSHRC 1241, 1261 (Nov.
2001) (ALJ); Lhoist N. America of VA, Inc., 36 FMSHRC 2413, 2427 (Sep.
2014) (ALJ); Regent Allied Carbon Energy, Inc., 37 FMSHRC 830, 857 (Apr.
2015) (ALJ); Saiia Construction, LLC , 38 FMSHRC 2291, 2306 (Aug.
2016) (ALJ) (“The [operator’s] message was loud and clear: production over
human life”).

In this
case, Wetzel’s conduct, individually and as imputed to Lehigh, amounted to
reckless disregard based on the Judge’s own findings and conclusions. Wetzel ignored
the obvious and high risk of fatal injuries to Osenbach in authorizing him to
twice enter the pit, at night under poor illumination, where Osenbach was
required to pass through and work in a narrow valley, menaced by unstable
ground conditions following a collapse that removed lateral support from the
remaining material on the highwall and buried the bucket under so much material
that a dragline could not move it. 38 FMSHRC at 2794-96.

As
the Judge also concluded, Wetzel sent Osenbach into the pit under these
conditions when he knew that safe alternatives were available. He took this
action so as to avoid sacrificing production of coal. 38 FMSHRC at 2785, 2799. Such
actions demonstrate a degree of negligence best characterized as reckless
disregard. See Spartan Mining Co., Inc., 30 FMSHRC 699, 719-23 (Aug.
2008) (where mine fan stopped and foreman directed miners to attempt to repair
damaged cable rather than withdraw from working section, Judge properly
characterized foreman’s action as reckless disregard); Signal Peak Energy ,
37 FMSHRC 470, 482 (Mar. 2015) (where operator failed to immediately
contact MSHA following an accident with a reasonable potential to cause death
because of a desire to resume production, the Judge correctly found the
violation to be reckless disregard).

We
note that the Judge characterized this as a case in which “a supervisor
directed a miner into a situation that posed an immediate and appreciable risk
to the safety of that miner.” 38 FMSHRC at 2799. The
Judge found that Wetzel did this knowingly. Id. at 2801. This is so
contrary to the standard’s command that miners not work under or near dangerous
highwalls that the operator cannot be said to have exercised any meaningful
care for the safety of the miner endangered here.

We
conclude that the record on review supports only the conclusion that the
respondents recklessly disregarded the safety of a miner, and thus demonstrated
the highest possible level of negligence for purposes of penalty assessment
under section 110(i). To hold otherwise would be to find that an operator does
not act with reckless disregard when its agents see hazardous conditions but
fail to use the judgment responsible supervisors must exercise to avoid placing
miners in peril, or when those agents recognize the likelihood of dire
consequences but disregard that likelihood and allow or direct miners to expose
themselves to mortal danger without justification. See 38 FMSHRC at 2797,
2799 (finding “obvious” dangers here were “highly likely to result in fatal
injury to a miner”).

Given
this determination, it is therefore unnecessary to remand the determination of
respondents’ level of negligence to the Judge. See, e.g., Walker Stone Co.
v. Sec’y of Labor , 156 F.3d 1076, 1085 n.6 (10th Cir. 1998); Sedgman ,
28 FMSHRC 322, 331 (June 2006) (stating that remand unnecessary where Judge
failed to examine whether certain actions violated a safety standard because
record supplied “more than sufficient evidence” to uphold the citation).

We vacate
the penalties assessed against the respondents and remand them for
reassessment. On remand, the Judge may weigh the section 110(i) factors as he
deems appropriate under the circumstances of this case. [14]

III.

Conclusion

For
the reasons discussed above, we hold that the Judge’s negligence determinations
were based on legal error. We further vacate the penalties assessed against
Lehigh and Wetzel with respect to the violation of section 77.1006(a) and
remand for reassessment consistent with this decision.

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen Jr., Commissioner

Acting Chairman Althen, dissenting:

I
would not find the Judge made legal errors as asserted by the Secretary and
found by my colleagues. Even had he made the asserted errors, substantial
evidence supports the Judge’s decision, and the Judge’s penalty assessment does
not constitute an abuse of discretion. I respectfully dissent.

I.                   
Substantial Evidence Supports the Judge’s Negligence Finding.

The
Mine Safety and Health Administration (“MSHA”) alleged reckless disregard based
upon its definition in 30 C.F.R. § 100.3(d) Table X. There, MSHA defines
“reckless disregard” as “the operator displayed conduct which exhibits the
absence of the slightest degree of care.” Id. This is a classic and
completely acceptable definition of reckless disregard. After reviewing the
evidence, the Judge found the Secretary had not proved an absence of the
slightest degree of care. He found high negligence.

The Commission reviews a Judge’s negligence
determination under the substantial evidence standard. Leeco, Inc. , 38
FMSHRC 1634, 1636-37 (July 2016); J im Walter Res., Inc. , 36
FMSHRC 1972, 1976 (Aug. 2014). The majority does not address directly whether
substantial evidence supports the Judge’s decision. Instead, it focuses upon
alleged legal errors. Our duty in this case, therefore, is two-fold. First,
we must consider the legal errors asserted by the Secretary. Second, if errors
occurred, we must decide whether such errors are sufficient to affect the
outcome of the case. Cf. Smolen v. Chater , 80 F.3d 1273, 1281 (9th Cir.
1996) (reviewing first for legal error, then for substantial evidence). “Substantial
evidence is relevant evidence that a reasonable mind would accept as adequate
to support the [Judge’s] conclusion.” Craig v. Apfel , 212 F.3d 433, 435
(8th Cir. 2000). [15]

Further,
“[i]n determining whether existing evidence is substantial, we consider
‘evidence that detracts from the [Judge’s] decision as well as evidence that
supports it.’” Prosch v. Apfel , 201 F.3d 1010, 1012 (8th Cir. 2000)
(quoting Warburton v. Apfel , 188 F.3d 1047, 1050 (8th Cir. 1999)). However,
“[w]e may not reverse the [Judge’s] decision merely because substantial
evidence” exists in the record that would have supported a contrary outcome. Id.

A
Judge is not required to discuss all the evidence submitted, and a failure to
cite specific evidence does not indicate that the Judge did not consider that
evidence. Craig , 212 F.3d at 436. Importantly, therefore, we must
consider all the evidence in evaluating a decision for substantial evidence
purposes.

The
operator, through its supervisor Wetzel, erred in sending a miner into the pit
in an effort to free the bucket. The seriousness of the error springs not only
from the level of danger to the miner but also, and perhaps more so, because it
was not necessary to retrieve the bucket immediately through exposure of a
miner to a potentially fatal situation. After the event was over and management
learned of it, mine management responded quickly and aggressively to deter
Wetzel or any other line foreman from making a similar mistake in the future. Although
Wetzel grievously failed in his duties, mine management was exemplary in
fulfilling its duties to miner safety.

The
issue before the Judge was not whether Wetzel was negligent but instead the
level of negligence exhibited by Wetzel. The Judge applied MSHA’s definition of
reckless disregard as accepted and argued by both parties. He decided that the
action was highly negligent rather than reckless disregard. The Judge based the
decision upon a finding that Wetzel exercised a degree of care. As said, the
outcome of our review depends upon the existence of any legal errors and
whether substantial evidence in the record as a whole supports a finding that
the Judge’s decision was reasonable.

As
explained below, I do not agree with the majority’s findings of legal errors. Going
further, the Judge pointed to a number of actions, and the record discloses
other actions, demonstrating that Wetzel, and hence the operator, showed a
degree of care. Of course, the issue before us is not whether we would have
made the same finding. Ultimately, the only issue is whether, after reviewing
the totality of the evidence, we should find the Judge’s decision was
unreasonable.

The
facts show that Wetzel did not send a worker into the area unilaterally,
immediately, or without discussion and consideration. He met with the entire
crew. As a group, the crew discussed means of freeing the bucket, including
attaching a chain to the bucket. They identified a procedure through which a
miner would enter the pit very briefly to attach a chain to the crow’s foot.

Wetzel
examined the southern slope, judged that it was strong enough to support
itself, and did not see any indication of future movement. Further, Wetzel
considered the danger from the Northern highwall and decided Osenbach’s route
would keep him far enough from it to be safe.

Wetzel
did not order Osenbach to go into the pit. In fact, Wetzel said he would hook
the chain, but Osenbach then volunteered to do it. [16] Under the Judge’s
analysis, Wetzel showed regard for safety before he accepted Osenbach
volunteering to go into the pit. Stated differently, Wetzel did not disregard
safety consciously or unconsciously, nor did he act without any concern for
safety. After a group discussion, he made a conscious decision that a miner
could hook the chain to the bucket safely. The facts on the record that demonstrate
that it was reasonable for the Judge to find a degree of care and a regard for
safety include the discussion with the crew, review of conditions, a brief
period of exposure, defining a route, lighting the area, and voluntary
participation by a physically fit miner.

None
of this undercuts the Judge’s decision of high negligence, and this opinion is
not in any sense a defense of Wetzel’s conduct. Based on the evidence, the
Judge reasonably found that Wetzel made a decision to send/allow Osenbach to
enter the pit, albeit an ill-conceived decision, in consultation with the crew,
with a degree of care, and with regard for the safety of the miner.

Reviewing
the entire record, the facts are sufficient to affirm the decision under the
substantial evidence standard of review. For this reason, I dissent from the
majority’s decision to vacate the Judge’s negligence determination and to hold,
as a matter of law, that Wetzel and Lehigh’s actions constituted reckless
disregard.

II.                
The Judge Appropriately Used the Secretary’s Definition of
Reckless Disregard and Considered Facts Relating to the Level of the Operator’s
Negligence.

Had
the majority found that, based upon the exclusion of certain evidence or
conclusions, the evidence only supported a conclusion that the operator
displayed the absence of a slight degree of care, I would have disagreed with
but understood their decision. That is not their approach. Instead, the
majority not only accepts the Secretary’s conversion of a substantial evidence
case into a “legal” case through asserted legal arguments but also surpasses
even the Secretary by going further than the Secretary and suggesting, but not
mandating, a different definition of reckless disregard for this case at the
appellate level. Using that definition and disallowing certain findings by the
Judge rather than reviewing the totality of the evidence, the majority
reverses.

I
have great respect for my colleagues and recognize that they will disagree,
probably strongly, with me; nevertheless, I am constrained to address their
opinion. Their decision strikes me as a desired result driving the law rather
than the law driving a principled result.

When
the Secretary alleges that an operator’s actions exhibited reckless disregard
for safety, he takes on a self-prescribed task of proving by a preponderance of
the evidence “the absence of the slightest degree of care.” 30 C.F.R. §
100.3(d). That is a standard and much-utilized definition of reckless
disregard. In turn, that is the standard under which the parties tried the case
and the standard to which the Judge held the Secretary. Neither party
challenged the definition of reckless disregard before the Judge or us, nor did
either party brief the effect of a different definition upon the outcome. The
only arguments before us are the Secretary’s arguments that the Judge could not
legally consider certain facts or reach certain conclusions.

The
majority accepts the Judge’s findings of fact and credibility determinations. Slip
op. at 6. They review the case under those fact and credibility findings. However,
the majority ultimately fails to apply the substantial evidence standard. The
term “substantial evidence” only appears one time in their opinion in an
irrelevant footnote. Slip op. at 6 n.9. On
top of that, the majority goes beyond the petition of the Secretary and
refuses, in this instance, to allow the Judge to apply the longstanding
definition of reckless disregard, although neither party objected or provided
any briefing of their alternative definition or its applicability to the facts
of this case. [17]

A.     The
Majority Ignores Decades of Negligence Caselaw to Arrive at Its Suggested
Definition of Reckless Disregard.

After public notice and comment, MSHA promulgated the
definition of reckless disregard thirty-five years ago in 1982. Criteria and
Procedures for Proposed Assessment of Civil Penalties, 47 Fed. Reg. 22,286 (May 21, 1982). There, MSHA said, “[t] he ‘reckless disregard’ category, for which the maximum
number of points would be assigned, is characterized by conduct which
exhibits the absence of even the slightest degree of care.” Id. at 22,289-90.
Since that promulgation, the Commission and Judges have used that definition in
literally dozens and dozens of cases. 

For purposes of
this case, however, the majority chooses to use an alternate definition of
reckless disregard not used by the Judge or briefed by the parties. They
explain their adoption of a “conscious disregard” definition by referencing the
test for ordinary negligence — that is, “actions [that] would have been taken
under the same circumstances by a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purpose of the
regulation.” Slip op. at 7. The majority then essentially applies a “reasonable
person test” to “conscious disregard” in a manner that reduces the burden of
proving reckless disregard.

The
majority apparently posits a false dichotomy between the definition of reckless
disregard used by the Judge and their definition. In a field as vast as the law
of negligence, it is natural that one may find different definitions for
reckless disregard with slightly different wording or that conflict in minor
ways. For example, some courts equate reckless disregard with gross negligence,
using the “slight degree of care” touchstone. See, e.g. , Ave. CLO
Fund, Ltd. v. Bank of Am., N.A. , 723 F.3d 1287, 1300 (11th Cir. 2013) (“New
York law defines gross negligence as ‘conduct that evinces a reckless disregard
for the rights of others or smacks of intentional wrongdoing,’ or ‘the failure
to exercise even slight care.’” (citations omitted)); Penunuri v. Sundance
Partners, Ltd. , 2017 UT 54, ¶ 35, — P.3d — (“In Utah, gross negligence is
‘the failure to observe even slight care; it is carelessness or recklessness to
a degree that shows utter indifference to the consequences that may result.’” (quoting
Blaisdell v. Dentrix Dental Sys., Inc. , 284 P.3d 616, 621 (Utah 2012))
(citation omitted)).

Other
courts find reckless disregard is a step beyond gross negligence. See, e.g. ,
Saba v. Compagnie Nationale Air France , 78 F.3d 664, 668 (D.C. Cir.
1996) (“There is a continuum that runs from simple negligence through gross
negligence to intentional misconduct. Recklessness, or reckless disregard,
lies between gross negligence and intentional harm.”); Doe v. Boy Scouts of
Am. Corp. , 147 A.3d 104, 120 (Conn. 2016) (“More recently, we have
described recklessness as a state of consciousness with reference to the
consequences of one’s acts. . . . It is more than negligence, more than gross
negligence.” (quoting Doe v. Hartford Roman Catholic Diocesan Corp. , 119
A.3d 462, 483 (Conn. 2015)) (alteration in original)).

Some
authorities virtually equate reckless disregard with intentional misconduct,
finding reckless disregard is close to an intentional wrongdoing. See, e.g. ,
Mandolidis v. Elkins Industries, Inc. , 246 S.E.2d 907, 913 (W. Va. 1978)
(“[West Virginia law] recognizes a distinction between negligence, including
gross negligence, and wilful, wanton, and reckless misconduct. The latter type
of conduct requires a subjective realization of the risk of bodily injury
created by the activity and as such does not constitute any form of
negligence.”).  

Nowhere in this
array of cases is there a suggestion that failing to act as a reasonably
prudent person under similar circumstances — the definition of ordinary
negligence — demonstrates reckless disregard. Indeed, jurisdictions using a
“conscious disregard” standard often use absence of a slight degree of care as
the touchstone of conscious disregard. See, e.g. , Ave. CLO Fund ,
723 F.3d at 1300 (“New York law defines gross negligence as ‘conduct that
evinces a reckless disregard for the rights of others or smacks of intentional
wrongdoing,’ or ‘the failure to exercise even slight care.’” (citations
omitted)); District of Columbia v. Walker , 689 A.2d 40, 44 (D.C. 1997)
(defining gross negligence generally as “[t]he failure to exercise even slight
care,” and gross negligence under a qualified immunity statute as requiring
“such an extreme deviation from the ordinary standard of care as to support a
finding of wanton, willful and reckless disregard or conscious indifference for
the rights and safety of others.” (citation omitted) (alteration in original));
Cf. Smith v. Brown & Williamson Tobacco Corp. , 410 S.W.3d 623,
630-31 (Mo. 2013) (en banc) (stating that a showing of reckless disregard
requires evidence that the defendant “knew of the defect and danger of the
product and, by selling the product, showed complete indifference to or
conscious disregard for the safety of others.” (emphasis added) (citations
omitted)).

The case law is
legend. In California, “gross negligence” is defined as either the “want of
even scant care or an extreme departure from the ordinary standard of conduct.”
Van Meter v. Bent Constr. Co. , 297 P.2d 644, 648 (Cal. 1956); Franz
v. Bd. of Med. Quality Assurance , 642 P.2d 792, 798 (Cal. 1982) (en
banc). Kentucky requires more than a showing of failure to exercise slight care
to find gross negligence: As to gross negligence, this claim requires
“something more than the failure to exercise slight care. We have
stated that there must be an element either of malice or willfulness or such an
utter and wanton disregard of the rights of others as from which it may be
assumed the act was malicious or willful.” City of Middlesboro v. Brown ,
63 S.W.3d 179, 181 (Ky. 2001). Gross negligence requires “‘first a
finding of failure to exercise reasonable care, and then an additional finding
that this negligence was accompanied by wanton
or reckless disregard for the lives, safety or property of
others.’” Robbins v. New Cingular Wireless PCS, LLC , No. CV 5:15-71,
2016 WL 1089252, at *4 (E.D. Ky. Mar. 18, 2016) (quoting Brown , 63
S.W.3d at 181),  aff’d , 854 F.3d 315 (6th Cir. 2017). Or, as
the Supreme Court of Louisiana has defined the terms, “‘Reckless disregard’ is,
in effect, ‘gross negligence.’ Gross negligence has been defined by this court
as ‘the want of even slight care and diligence. It is the want of
that diligence which even careless men are accustomed to exercise.’” Lenard
v. Dilley , 805 So.2d 175, 180 (La. 2002) (citation omitted).

Authorities that
equate “reckless disregard” with a failure to use the slightest degree of care
are on the mark. The United States Supreme Court, quoting the Supreme Court of
Vermont, has applied the following definition of gross negligence in a
diversity jurisdiction case:

Gross
negligence is the equivalent to the failure to exercise even a slight degree of
care. . . . But it falls short of being such reckless disregard of probable
consequences as is equivalent to a willful and intentional wrong.

Conway v. O’Brien , 312 U.S. 492, 495 (1941) (quoting Shaw v. Moore ,
162 A. 373, 374 (Vt. 1932) (adopting Massachusetts’ gross negligence
definition)). See also, e.g. , Saba , 78 F.3d at 668; Boy Scouts
of Am. Corp. , 147 A.3d at 120; Mandolidis , 246 S.E.2d at 913; IPSCO
Tubulars, Inc. v. Ajax TOCCO Magnathermic Corp. , 779 F.3d 744, 752 (8th
Cir. 2015) (“Gross negligence is ‘the failure to use even slight care.’”
(quoting Spence v. Vaught , 367 S.W.2d 238, 240 (Ark. 1963))) (applying
Arkansas law); Ave. CLO Fund , 723 F.3d at 1300; Sundance Partners,
Ltd. , 2017 UT 54, ¶ 35; Ambrose v. New Orleans Police Dept. Ambulance
Serv. , 639 So. 2d 216, 219 (La. 1994) (“Gross negligence has been defined
as the ‘want of even slight care and diligence” and the “want of that diligence
which even careless men are accustomed to exercise.’” (quoting State v.
Vinzant , 7 So. 2d 917, 922 (La. 1942))); Colby v. Boyden , 400 S.E.2d
184, 189 (Va. 1991) (“[G]ross negligence is the ‘absence of slight diligence,
or the want of even scant

care’ . . . .” (quoting Frazier
v. City of Norfolk , 362 S.E. 2d 688, 691 (Va. 1987))). In Texas, gross
negligence requires proof of an objective element and a subjective element: “For
the subjective element, [a defendant] must have ‘actual, subjective awareness
of the risk involved and choose to proceed in conscious indifference to the
rights, safety, or welfare of others.’” Miller v. Mullen , 531 S.W.3d
771, 779-80 (Tex. Ct. App. 2016) (quoting Burleson v. Lawson , 487 S.W.3d
312, 322 (Tex. Ct. App. 2016)). Under that standard, a “plaintiff must show
that the defendant knew about the peril, but his acts or omissions demonstrated
that he didn’t care.” Miller , 531 S.W.3d at 780 (quoting Turner v.
Franklin , 325 S.W.3d 771, 782 (Tex. Ct. App. 2010)).

From
the foregoing, it appears that the majority has consciously disregarded the
definitions of reckless disregard showing that a person who exercises care and
considers the safety of the workers in making a decision involving safety is
both exercising care and not “consciously disregarding” safety. Under the
“absence of slight care” or the “consciously disregard” definitions, the
ultimate issue is whether Wetzel showed regard or a slight degree of care for
safety. If he exercised care, then he did not “disregard” safety. Such
conclusion is consonant with the plain meaning of “disregard.” [18]
Moreover, any disregard for or ignoring of safety must be “conscious” — that
is, knowing. Therefore, the actor must knowingly/subjectively ignore or pay no
attention to safety concerns.

These
myriad decisions demonstrate that jurisdictions define gross negligence as the
absence of even a slight degree of care and many jurisdictions consider
reckless disregard to require a higher showing of culpability than gross
negligence. Unlike MSHA’s definition of other degrees of negligence, there is
overwhelming support in the law for MSHA’s definition of reckless disregard. I
find no reason not to use the Part 100.3 standard of reckless disregard as the
Commission standard. Moreover, nothing changes regarding the ultimate outcome
of this case if we use the majority’s definition, especially when it appears
the only reason to do so is to reverse the Judge’s finding.

B.      The
Majority’s Legal Analysis Misrepresents and Disregards Commission Precedent to
Reach the Majority’s Desired Result.

Rather
than finding substantial evidence does not support the Judge’s decision, the
majority find the Judge’s “negligence determinations are legally invalid.” Slip
op. at 7. They do not discuss meaningfully the totality of the evidence but
summarily declare the totality of actions “meaningless.” Id. at 10. [19]

The
majority first notes the duty of mine management. Unaccountably, in doing so,
they fail to note that the Judge specifically recognized and took into account
the duty of foremen regarding safety. 38 FMSHRC 2782, 2799 (Nov. 2016) (ALJ). Therefore,
the majority is reciting an element that the Judge took fully into account. The
fact that he considered the point cuts in favor of affirmance. Further,
although Wetzel certainly was a manager, he was a “manager” in the sense of
being the head of a tiny three or four person crew on a night shift. The
majority quotes Wilmot Mining Co. , 9 FMSHRC 684, 688 (Apr. 1987), in
which the Commission drew an important distinction between mine management and
less senior supervisors. Slip op. at 8-9. The Commission stated, “Managers and
supervisors in high positions must set an example for all supervisory and
non-supervisory miners working under their direction.” Wilmont , 9 FMSHRC
at 688.

Clearly,
Wetzel was not mine management; he was in the category of lower level
supervisors for whom the Commission in Wilmot Mining Company said mine
management must set an example. Actual mine management set an example for him,
other supervisors, hourly workers, and other operators’ management by
responding quickly and aggressively to the event. This is not to imply that
foremen do not have a duty to exercise a high degree of care. It is merely to
point out that emphasizing the duty of mine management is not meaningful in
this case where the Judge factored Wetzel’s status into his decision and mine
management actually was proactive.

In
turning to the more substantive part of the majority’s decision, their
explanation presents different twists on the same argument. The majority finds
that Wetzel’s willingness to enter the pit did not mitigate the hazard. Slip
op. at 9. They say that Wetzel’s “misunderstanding” of the hazard and
“subjective” belief that it was safe to use the procedure to connect the chain
to the bucket did not “mitigate” the hazard. Id. at 9-10. Although
somewhat ambiguous, they also appear to state that actions taken to deal with a
hazard do not “mitigate” negligence if those measures are not successful. Id.
at 10-11.

An
error common to these assertions is that they take the Judge to task for
alleged “mitigation” findings he did not make. The Judge did not find that
Wetzel’s willingness to enter the pit, his belief, or his actions “mitigated”
negligence. Nowhere in the decision did the Judge find mitigation. Instead, he
cited facts to support his conclusion that Wetzel did not manifest an absence
of a degree of care or, in the words the majority would prefer, a conscious
disregard for the safety of the crew. Essentially, the Judge found that
Wetzel’s judgment was badly flawed and his conduct was highly negligent, but
that Wetzel did show a degree of concern or care for the miners or, stated
differently again, that he actually showed a conscious degree of care or regard
for safety. The absence of a “mitigating” factor does not prove the Judge erred
or that Wetzel or the operator exhibited reckless disregard. [20]

Another
puzzler is the majority’s reason for pointing out that an objectively
reasonable belief in one’s actions fully defeats an unwarrantable failure
charge. [21]
The majority writes that the Judge could not consider Wetzel’s “subjective”
mental state because, in a different area of the law, unwarrantable failure
cases, an objectively reasonable belief frees an operator from liability for an
unwarrantable failure. [22]
By focusing on whether Wetzel had an objective or subjective belief that
descent into the pit was safe, the majority misinterprets the relevance of
Wetzel’s mental state to a finding of reckless disregard, especially since the
majority prefers to make Wetzel’s conscious refusal to care about safety a
necessary element of the accusation.

As
we have seen, when courts consider the higher levels of culpability such as
gross negligence and reckless disregard, the mental state of the actor becomes
an increasingly important consideration. The mental state of the actor is
critical in the sense of whether the actor showed a degree of care for the
safety of others: Did the actor consider safety and, if so, did he simply
disregard the danger, showing that he disregarded the results of his actions
upon worker safety? On the other hand, did he take steps demonstrating that he
had a regard for safety?

Thus,
as I have repeatedly and even tediously said, the issue regarding reckless
disregard is whether the actor showed any degree of care or regard for safety. See,
e.g. , Lascola v. Barden Miss. Gaming LLC , 349 F. App’x 878, 886 (5th
Cir. 2009) (“Reckless disregard is generally ‘accompanied by a conscious
indifference to consequences, amounting almost to a willingness that harm
should follow .’” (emphasis added) (quoting Maye v. Pearl River Cty. ,
758 So. 2d 391, 394 (Miss. 1999))); City of San Antonio v. Hartman , 201
S.W.3d 667, 672 n.19 (Tex. 2006) (“Because ‘conscious indifference’ and
‘reckless disregard’ are not defined in the statute, we give each its ordinary
meaning. We have often interpreted these terms to require proof that a party knew
the relevant facts but did not care about the result .” (emphasis added)
(citation omitted)).  

The
majority does not cite persuasive precedent. In Mach Mining, LLC v. Sec’y of
Labor , 809 F.3d 1259, 1265 (D.C. Cir. 2016), cited by the majority, slip
op. at 10, the circuit court found the Administrative Law Judge reasonably
concluded that the pre-violation conduct actually showed persistent negligence
by the operator because the operator took no further steps to prevent the
accumulation. Thus, the circuit court did not hold that whenever a violation
occurs the operator must have been negligent. Indeed, the operator’s actions
were relevant and enhanced the finding of negligence. [23]

Similarly,
the majority’s citation to BethEnergy Mines, Inc. , 14 FMSHRC 1232 (Aug.
1992), does not support its position. The majority states that “the Commission
has concluded that the fact that a hazardous area was examined before it was
entered did not reduce negligence because the exam ‘did not eliminate the risk
. . . but rather served to measure the risk presented.’” Slip op. at 10
(quoting BethEnergy , 14 FMSHRC at 1244). In this curt summation,
however, the majority omits key facts and context from the case.

The violation was for entering a dangered off area for
reasons other than elimination of the hazard. 14 FMSHRC at 1236. In that
context, the Commission stated:

The fact that [an acting
construction foreman] examined the area before the cars were brought through it
does not reduce BethEnergy’s conduct to “moderate negligence,” as argued by the
operator (BE Br. at 34-35). The examination did not eliminate the risk posed by
the unsaddled beams but rather served to measure the risk presented. Such
deliberate conduct is appropriately characterized as a knowing neglect of the
actions required by section 75.303(a).

Id.
at 1244. Section 75.303(a), at that time, stated that “[n]o person other than an authorized representative of the
Secretary or a State mine inspector or persons authorized by the operator to
enter such place for the purpose of eliminating the hazardous condition
therein, shall enter [a hazardous place while a danger sign] is . . . posted.” Id.
at 1232 n.1 (quoting 30 C.F.R.        § 75.303(a)) (emphasis omitted). The
violation, therefore, was for entering a hazardous place while a danger sign is
posted. Examining the area, therefore, was not relevant to the standard and did
not eliminate the risk of entering the area.

The
Commission did not hold, as the majority misinterprets, that examining the area
did not “reduce negligence.” Indeed, the majority’s misinterpretation is
complicated by the fact that negligence was not even before the Commission: the
Commission’s statement in BethEnergy was made in the context of the
unwarrantable failure analysis in which the Commission affirmed the Judge’s
unwarrantable failure finding. In BethEnergy , the Commission concluded
that examination of a hazardous area does not negate an unwarrantable failure
designation when the violation was for entering the area for a purpose other
than to correct the hazardous condition, and the operator’s agent knowingly had
a danger sign removed and replaced before and after moving cars through the
area. This is far different from the majority’s characterization. [24]

If
the test of negligence were whether the operator prevented the occurrence of a
violation, every violation would automatically entail negligence. That is not
our law. The test for even low or ordinary negligence is not whether a
violation occurred but, again, whether the operator acted as a reasonably
prudent mining operator would under similar circumstances. It is plainly
incorrect to insinuate that the occurrence of a violation, standing alone,
demonstrates negligence, let alone reckless disregard.

This
is particularly important because the Mine Act is a strict liability statute.  The operator is liable for a penalty for
every violation attributable to it regardless of negligence. However, the
Commission finds no negligence if the operator acted as a reasonably prudent
person even though a citable violation or even fatal accident occurs. For
example, in Leeco, Inc. , 38 FMSHRC 1634 (July 2016), the Commission
considered a case in which a miner whom the operator had warned not to enter a
red zone subsequently suffered a fatal injury in a red zone. The operator had
taken a number of steps in addition to warning the miner not to enter a red
zone. After the fatality, MSHA charged the operator with moderate negligence. The
Commission first restated the Commission’s test for ordinary negligence. Id.
at 1637. It then reversed the finding of moderate negligence, holding,

Without evidence that a reasonably
prudent operator would have done more under the circumstances, it was error for
the Judge to conclude that Leeco’s response to Smith’s previous incident was
insufficient.

Id. at 1639. Thus, the fact that the actions taken by the
operator did not “prevent” a fatal injury to a miner from an unsafe act in
which he had earlier engaged did not preclude a finding of no negligence when
the operator acted in a reasonably prudent manner. The operator took the
actions of a reasonably prudent operator and, accordingly, was not negligent.

Similarly,
i n  Jim Walter Resources , 36 FMSHRC
1972, the Commission upheld a finding of no negligence in a case involving
whether an operator had acted prudently in hiring and monitoring a contractor. A
fall seriously injured a contractor’s employee. Although the operator’s hiring,
training, and monitoring practices did not prevent the accident, the Judge
found no negligence by the operator. The Commission sustained the Judge’s
decision finding that the operator acted in a reasonably prudent manner. Id.
at 1976. See also Nally & Hamilton Enters ., 38 FMSHRC
1644, 1652 (July 2016) (“ We affirm the finding of
no negligence. The Judge found that the operator established and conducted a
sufficient training and enforcement program to avoid liability under  Southwestern
I .”) . The occurrence of a
violation or an accident, standing alone, most certainly does not prove any
degree of negligence. Surely, the majority does not mean that anything
and everything an operator understands, believes, and does are irrelevant to
whether an operator has acted negligently, let alone with a reckless disregard
of safety.

The
majority further errs in that it does not examine the totality of the evidence
to discern whether the Judge’s decision is reasonable. Even were the majority’s
propositions regarding the understanding, beliefs, and actions of the operator
correct, the majority does not adequately explore whether the operator’s action
showed a slight regard for safety. As a result, as the majority reaches the
denouement of its decision, the majority simply reweighs or does not discuss
the evidence regarding whether the Secretary proved the operator failed to show
any slight degree of care or consciously disregarded safety through the
foreman’s discussions with the crew and other actions. Slip op. at 10-11.

Having
intruded upon the Judge’s duty and reweighed the evidence, the majority asserts
that Wetzel’s conduct “demonstrated the highest possible level of negligence.” Id.
at 12. Under the facts of this case, that finding is either absurdly incorrect
or buys into the Secretary’s proposition that the Judge should simply decide
upon a category of negligence and, then, his/her work is complete, so that a
finding of reckless disregard is always tantamount to the worst imaginable
negligence. I do not think the majority actually can mean what it said. [25]

III.             
Penalty Considerations on Remand

The majority decision remands the case for the
assessment of a penalty. In doing so, the majority rejects the Secretary’s
suggestion that once the Commission places negligence in one of the
MSHA-described categories, the Judge should accept the MSHA-proposed penalties.
The majority eschews taking any position on the penalty, thereby suggesting
they would not object to the same penalty as previously assessed. Consequently,
I offer a few comments regarding penalties.

Neither the term “high negligence” nor the term
“reckless disregard” appears in the Mine Act. Indeed, the term “negligent”
appears only twice. Both uses are in section 105 and relate to the criteria by
which the Secretary proposes and the Commission assesses penalties. [26]
30 U.S.C. § 815.

The
term “gross negligence” appears once. That is in section 116 of the Act, which
provides for certain limitations on liability. The section provides the
limitations “shall not apply where the action that is alleged to result in the
property damages or injury (or death) was the result of gross negligence,
reckless conduct, or illegal conduct . . . .” 30 U.S.C. § 826(a). The same
section 116 also contains the only Mine Act usage of the term “reckless
conduct.” Placement of that term in the same section with, and after, gross
negligence must indicate that Congress considered reckless conduct a step
beyond gross negligence bordering upon illegal conduct. The only other usage of
the term “reckless” in the Mine Act is in the flagrant violation provision in section

110. 30 U.S.C. § 820(b)(2).

The
absence of the terms “reckless disregard” or “high negligence” and the sparing
use of reckless or even negligent highlight that the terms upon which this case
appears to turn are completely drawn from MSHA’s penalty regulation at 30
C.F.R. § 100.3 rather than the Mine Act. There, they appear only for the
purpose of assigning penalty points that result in substantial point changes
under regular penalty regulations depending upon placement of negligence in a
predefined category. The regulation assigns 35 points for high negligence,
while reckless disregard adds an additional 15 penalty points to a total of 50
negligence points to the penalty calculation. 30 C.F.R. § 100.3(d). In every
case, 15 additional penalty points substantially increases the penalty. When
the other points reach a significant level in the range of 110 points, the
additional 15 points begins to increase the MSHA assessment by tens of
thousands of dollars. See 30 C.F.R. § 100.3(g).

The
use of general categories of negligence obviously is helpful, but it does not
permit us to ascertain where the Judge placed the negligence along the broad
spectrum. Certainly, the Judge found Wetzel’s conduct severely lacking in
ordinary care. Therefore, regarding a continuum, his view appears to place the
negligence only a short step below reckless because Wetzel exercised some care.
Accordingly, the majority’s change in terminology may perhaps be only a small
nudge on the continuum in this case.

The majority has not reversed any of the Judge’s
factual findings. Thus, the Judge may continue to take into account the
entirety of Wetzel’s actions, including his meeting with the crew before
acting, in assessing a penalty against him and the operator. Indeed, the
majority permits or even urges the Judge to take into account the exceptional
response by management into account is assessing the penalty. This is
especially true, given that the Commission previously has found, albeit
incorrectly in my view, that “deterrence” is a relevant factor that Judges may
consider separately from the statutorily-prescribed criteria in assessing
penalties. See Black Beauty Coal Co. , 34 FMSHRC 1856, 1864-69
(Aug. 2012). [27]

If that is true, then the principle must work to
permit a lowered assessment. Prior to involvement by MSHA, the operator acted
aggressively to deter similar errors in the future. Because the operator took
quick and decisive actions before any MSHA involvement, the Judge might well
apply Black Beauty to find that the operator need not incur a severe
fine to achieve future compliance as it already positively demonstrated safety
consciousness. As the majority emphasizes, if the Judge wishes to consider the
operator’s exemplary unilateral corrective action, he may do so. In that case,
the Judge could reduce the penalty upon remand.

Conclusion

For the reasons
set forth above, I respectfully dissent.

/s/
William I. Althen

William
I. Althen, Acting Chairman

[1]
30 C.F.R. § 77.1006(a) provides that “[m]en, other than those necessary to
correct unsafe conditions, shall not work near or under dangerous highwalls or
banks.”

[2]
The “significant and substantial” and “unwarrantable failure” terminology is taken
from section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), which
distinguished as more serious in nature any violation that “could significantly
and substantially contribute to the cause and effect of a . . . mine safety or
health hazard,” and establishes more severe sanctions for any violation caused
by “an unwarrantable failure of [an] operator to comply with . . . mandatory
health or safety standards.”

[3]
Section 110(c) provides that “any . . . agent of [a] corporation who knowingly
authorized, ordered, or carried out such violation . . . shall be subject to .
. . civil penalties.” 30 U.S.C. § 820(c).

[4]
An “excavator” is a large track-mounted piece of equipment that swivels 360
degrees, has a long boom, and is similar to a backhoe although much larger. Tr.
58.

[5]
A “crow’s foot” is the point at which the two control chains for the dragline
attach to the bucket. 38 FMSHRC at 2785.

[6]
As part of the retrieval plan, the area was illuminated by the dragline and
viewed to see if any material was moving, Osenbach attempted to keep his
distance from the highwall and to minimize his time in the pit, and the
dragline operator was provided with a horn to alert Osenbach if conditions
became more hazardous. Tr. 89, 119, 330, 338, 340, 360, 362, 398-99, 440; Ex.
S-20 at 3.

[7]
The inspector’s notes stated that throughout the investigation, Lehigh had been
“very cooperative and share[d] info. freely when requested. Action was taken to
correct the problem before anyone from MSHA knew about it and policies have been
written to prevent further troubles. Company tries very hard to make jobs
safe.” Ex. S-3, notes for 7-8-13 at p. 7.

[8]
The Judge also affirmed the violation alleged in Citation No. 8000959, concluding
that the operator violated section 77.1710(g) because Osenbach failed to wear a
safety belt or line where there was a danger of falling. 38 FMSHRC at 2802-03. The
Judge further determined that this violation was S&S and had been caused by
moderate negligence. Id. at 2803-04. The Judge’s findings regarding this
citation are not at issue on appeal. PDR at 13 n.3.

[9] The respondents’ statement of facts in their brief
includes many facts that conflict with the Judge’s factual findings. Contrary
to their statement of facts, however, Lehigh and Wetzel ultimately acknowledged
in their brief that the Judge’s “findings were not legally erroneous, contrary
to law or unsupported by substantial evidence,” and that the Judge’s
credibility determinations were entitled to deference. Resp. Br. at 15, 19.

[10]
The six statutory factors the Commission must take into account in assessing a
penalty are: (1) the operator’s history of previous violations; (2) the
appropriateness of such penalty to the size of the business of the operator
charged; (3) whether the operator was negligent; (4) the effect on the
operator’s ability to continue in business; (5) the gravity of the violation;
and (6) the demonstrated good faith of the operator charged in attempting to
achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i).

[11]
We are not attempting to comprehensively define “reckless disregard,” but only
setting forth, using language from the Restatement of Torts (a commonly-cited
authority on questions of negligence), a description of a type of reckless
disregard which describes foreman Wetzel’s actions in this case.

[12]
Our colleague contends that “Wetzel was not mine management.” Slip op. at 21. But
Wetzel, who acknowledged that he was responsible for miners’ safety on his
shift, Tr. 455-56, was the only supervisor on duty at the time of this
incident. It therefore does not matter that Wetzel was in charge only of a
small group of workers: He was the agent responsible on behalf of the operator
for the health and safety of each of those miners, a fact that has not been
disputed before us.

[13]
Our colleague alleges that we do not discuss the totality of the evidence
because we “summarily declare the totality of actions ‘meaningless.’” Slip op.
at 20. Our opinion notes with particularity the Judge’s own findings of fact
and conclusions of law about the dangers present and the failure of Wetzel to
apprehend those dangers or to take effective precautions to avoid exposing
Osenbach to them. When we conclude, based on the Judge’s own evidentiary
findings and legal conclusions, that Wetzel’s actions were “effectively
meaningless in terms of realistically reducing those hazards,” we are simply
adopting and restating the Judge’s finding that Wetzel’s actions were “wholly
inadequate.”

[14]
We note that upon discovering the incident prior to MSHA being notified, Lehigh
itself investigated what had occurred, disciplined Wetzel and the other miners
involved, and changed its policies so as to formalize the procedure it had used
to safely retrieve the buried bucket. Such proactive actions may be considered
under section 110(i) as “demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.” See
Hidden Splendor, 36 FMSHRC at 3109 (Comm’r Cohen, concurring). We do not
consider the statutory phrase “after notification of a violation” as being
limited to notification by MSHA or its inspectors. An operator which is
ultimately charged with a violation may receive “notification of a violation”
where, as here, another foreman discovers the unsafe action and notifies the
company’s safety director.

[15]
The Secretary suggests that the Commission just go ahead and assess the penalty
proposed by MSHA. I concur with the majority’s rejection of that approach.

[16] Not being the trier of fact and having only a
transcript before us, we may not assign a reason for or significance to
Osenbach’s remark that he would go into the pit because Wetzel had children. See
Martin Cty. Coal Corp. , 28 FMSHRC 247, 257 (May 2006) (stating that
“fact-finding is not the province of the Commission”).

[17]
I can only conclude that the majority implicitly agrees that under the definition
that MSHA, the Commission, and the Commission’s Judges have routinely applied —
the section 100.3 definition of reckless disregard — substantial evidence
supports the Judge’s decision. Otherwise, there would be no reason to
substitute summarily an alternate definition of reckless disregard that the
majority then, incorrectly but more easily, finds to have been met. Despite
Commission caselaw that Judges may use the Part 100 definitions and years of
consistent use of the section 100.3 definition of reckless disregard, the
majority reaches an outcome by “suggesting” a different definition of reckless
disregard for purposes of this case. They do not explain any reason for
departing from the standard definition in this one case. This case-by-case, “do
whatever we feel is right” approach is contrary to principled adjudication.

[18]
Disregard is “ [t]o ignore or treat as unimportant;
to pass by as undeserving of notice.” Disregard , Black’s Law Dictionary
573 (10th ed. 2014); see also Random
House Dictionary of the English Language 569 (2d ed. 1987) (“to pay no
attention to; leave out of consideration; ignore”).

[19]
My colleagues and I are professional attorneys. To the best of my knowledge,
none of us has any educational, professional, or meaningful experiential
background in actual mining processes, let alone the dynamic conditions of an
anthracite mine. Yet, the majority feels qualified to opine authoritatively
that meeting and discussing the situation with the entire crew, surveying the
surface areas for stability, using lights, planning a route of entry and exit,
minimizing the duration of any exposure, etc., are “meaningless.” Slip op. at 10.

[20] I do not agree with the majority’s applying a new
definition on appeal, and I do not think the new definition differs
significantly, if at all, from section 100.3. As demonstrated, the long-used
definition is a standard and acceptable one. However, MSHA’s definitions of
ordinary and higher negligence do differ markedly from the Commission’s
definition. MSHA defines all negligence as “high” negligence unless there is a
mitigating factor. The Commission allows a finding of high negligence if, and
only if, the Judge finds “an aggravated lack of care that is more than ordinary
negligence.” American Coal Co ., 38 FMSHRC 2062, 2084 (Aug. 2016)
(quoting Topper Coal
Co. , 20 FMSHRC 344,
350 (Apr. 1998)). These are obviously inconsistent approaches. We may aptly summarize the proper consideration of
negligence as follows:

Taking into account the
totality of the evidence, has the Secretary proved by a preponderance of
the evidence that the operator did not take the actions that a reasonably
prudent operator would have taken under the same or similar circumstances?
If so, then the operator was negligent. If the operator acted prudently,
then the operator was not negligent.

The Judge must then place the
negligence on a continuum from no negligence to the extreme forms of
negligence. This continuum does not compel categorization or, more
pertinently, great leaps or reductions in penalties based upon
categorization. On a continuum, negligence may fall just above or below a
“category.” For Mine Act purposes, slight deviations from a particular
category need not result in substantial penalty differences.

To the extent it is useful to
classify a degree of negligence in a particular case,

(a) The normal finding for the
failure to take actions that a reasonably prudent operator would have taken is
ordinary negligence;

(b) If the Secretary proves by
a preponderance of the evidence that the operator exercised aggravated lack of
care amounting to less care than even an ordinarily careless person exercises
then the negligence is higher than ordinary and is “high” or “gross.”

(c) If the Secretary proves by
a preponderance of the evidence that the operator showed a complete lack of
concern or care for safety — that is, did not show the slightest degree of care
— then the operator acted with reckless disregard.

For penalties assessed by MSHA
under the regular point system, the Sellersburg rule applies. Sellersburg
Stone Co. , 5 FMSHRC 287, 293 (Mar. 1983),  aff’d ,  736 F.2d
1147 (7th Cir. 1986) .
Therefore, if the penalty assessed by the Judge diverges substantially
from the penalty proposed by the Secretary under the regular point system,
the Judge must explain the reasons for diverging substantially from the
Secretary’s proposed penalty. The Judge must consider all penalty
criteria.

If MSHA bases the penalty upon
a special assessment, then the Secretary must bear the considerable burden
of providing special reasons for a substantially enhanced penalty. Because
a special assessment is arbitrary in the first instance, the Judge must
evaluate the violation holistically and set a penalty that is fair and
consistent with penalties that have been or should be assessed for similar
violations by similarly situated operators throughout the same sector of
the mining industries.

[21]
The majority cites DQ Fire & Explosion Consultants, Inc. , 36 FMSHRC
3090, 3097 (Dec. 2014). Slip op. at 10. That case involved a finding of high
negligence rather than reckless disregard. They also cite Mach Mining, LLC ,
36 FMSHRC 1525, 1527 (June 2014). Slip op. at 10. That case involved the mine
president/superintendent, and the Commission accepted a finding that the
ignorance of the mine president was “slight mitigation,” but was insufficient
to defeat a high negligence finding.

[22]
When an operator acts with an objectively reasonable belief that its actions
were safe and in compliance with the law and regulations, it has not engaged in
aggravated conduct constituting an unwarrantable failure.

[23]
The majority’s phrasing puts the words of the Administrative Law Judge into the
mouth of the circuit court and misses the key point that the prior actions
served to prove negligence. The relevant passage is as follows:

Further, the ALJ could reasonably
conclude that Mach’s decision to turn off the main belt no more served to show
that it was not highly negligent. Shutting off the main belt “neither prevented
nor corrected the hazardous condition.” Mach Mining,  36
FMSHRC at 2543. Instead, the ALJ concluded, the fact that Mach needed to stop
production to correct the dangerous condition it had allowed to persist
indicated how negligent Mach had been. Upon turning off the belt, Mach took no
further step to clean up the accumulations.

Mach , 809 F.3d at 1265 (emphasis in original).

[24]
Ironically, in BethEnergy , which the majority contends stands for the
proposition that examining an area did not reduce negligence, the Secretary did
not allege that the operator’s actions constituted “reckless disregard,” and
the inspector “did not believe that such conduct rose to the level of ‘reckless
disregard’ because [the acting construction foreman] had made an examination of
the area before he authorized a miner to enter it.” 14 FMSHRC at 1236.

[25]
Indeed, had Wetzel not discussed the plan with the crew, had he not taken
efforts to ensure Osenbach’s safety, and had he not had a good faith belief
that that the descent into the pit was safe, 38 FMSHRC at 2800, surely Wetzel’s
actions would have been worse than they were in this case. Yet the majority
fails to grapple with the Judge’s finding that Wetzel genuinely thought that descent
into the pit was safe, opting instead to consider such information legally
irrelevant in assigning culpability.

[26]
Interestingly, even section 110(i) the Mine Act does not refer to degrees of
negligence but only asks “whether the operator was negligent.” 30 U.S.C. §
820(i).

[27]
I look forward to the day when the Commission explicitly overrules its
unfounded departure from the terms of the Mine Act in the Black Beauty Coal
Company case. However, if a consideration outside the statutory criteria
may influence the penalty, such factor may also assert a downward influence.