Jim Walter Resources, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

This case followed two explosions at Jim Walter Resources' No. 5 Mine that killed 13 miners and injured several others. On the issues presented for review, the Commission affirmed dismissal of an evacuation order because the approved plan did not specify that an explosion triggered evacuation. It affirmed a quarterly fire-drill violation as non-S&S and a preshift-examination violation as S&S; an evenly divided Commission left the judge's unwarrantable-failure finding in place. The Commission vacated the $500 and $2,500 penalties because the judge had not adequately explained their large departure from the Secretary's proposed penalties or tied the amounts to the six statutory criteria. It remanded for a fuller penalty analysis.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1101-23(a), 75.1101-23(c), and 75.360(b)(3)
• Outcome: The Commission affirmed the rulings on the three reviewed enforcement matters, vacated the two assessed penalties totaling $3,000, and remanded for further explanation.
• Key point: A judge who substantially departs from proposed penalties must explain the assessment through the six criteria in 30 U.S.C. § 820(i), without using penalty amounts from other cases as a factor.

Full text (FMSHRC public release)

FMSHRC

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 30, 2006

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA), and

UNITED MINE WORKERS OF AMERICA

v.

JIM WALTER RESOURCES, INC.

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Docket No. SE 2003-160

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners

DECISION

BY THE COMMISSION:

This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act" or "Act"), was brought by the Secretary of
Labor against Jim Walter Resources, Inc. ("JWR"). This proceeding followed an extensive
investigation into two explosions that occurred on September 23, 2001, at JWR's No. 5 Mine in
Tuscaloosa County, Alabama, resulting in the deaths of 13 miners and injuries to several others.
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued two
citations and six orders for violations of mandatory safety standards. All of the eight violations
were alleged to be significant and substantial ("S&S"), and seven of the violations were alleged
to be due to JWR's unwarrantable failure to comply with the applicable standard. The Secretary
proposed penalties totaling $435,000.

The case was assigned to Administrative Law Judge David Barbour. The United Mine
Workers of America (UMWA), which represents JWR miners, intervened in the proceeding.
The parties engaged in extensive pretrial discovery. Prior to trial, JWR filed a motion for
summary decision, which was denied. 26 FMSHRC 623 (July 2004) (ALJ). The judge presided
over a 24-day trial during which 65 witnesses testified, and 396 exhibits were admitted into
evidence. Thereafter, the judge issued a decision, 27 FMSHRC 757 (Nov. 2005) (ALJ), in which
he dismissed six of the eight violations and affirmed, but modified, the remaining two orders.
The judge's dismissal and modification of the citations and orders resulted in a reduction in the
proposed penalties to $3,000.

Both the Secretary and JWR filed petitions for review with the Commission. The
Secretary sought review of: (1) the judge's dismissal of the order alleging a violation of 30
C.F.R. § 75.1101-23(a) for JWR's failure to evacuate miners after the first explosion; (2) the
judge's rejection of the S&S designation of the order charging a violation of section 30 C.F.R.
§ 75.1101-23(c) for JWR's failure to conduct fire drills; and (3) the judge's reduction of penalties
for the two violations that he found. The Secretary did not seek review of the judge's dismissal
of violations relating to inadequate roof support and inadequate rock dusting, both of which were
alleged to have led directly to the deaths of the 13 miners.

JWR sought review of: (1) the judge's determination that JWR violated the fire drill
requirement in section 75.1101-23(c); (2) the judge's determination that JWR violated section 30
C.F.R. § 75.360(b)(3) by failing to conduct a preshift examination in an area of the mine where
work was scheduled; and (3) the judge's determination that the violation of the preshift
examination requirement was S&S and due to JWR's unwarrantable failure. The Commission
granted both the Secretary's and JWR's petitions for review.

For the reasons that follow, the judge's decision on the violations and associated special
findings on review is affirmed. However, we vacate his decision with regard to the penalties
imposed as a result of the two violations found and remand for further explanation.

I.

Factual and Procedural Background

The No. 5 Mine ("the mine"), located approximately two miles north of Brookwood,
Alabama, is one of several underground bituminous coal mines JWR operates in that area. 27
FMSHRC at 758; Gov't Ex. 10 (MSHA Investigation Report) at 2. In 2001, before the
explosions, the mine was producing slightly more than 500,000 tons of coal per quarter and
employed 318 contract miners and 70 salaried miners. Id. Miners worked on three shifts: (1)
the 11:00 p.m. to 7:00 a.m. midnight shift; (2) the 7:00 a.m. to 3:00 p.m. day shift; and (3) the
3:00 p.m. to 11:00 p.m. afternoon or evening shift. 27 FMSHRC at 760 n.5; Tr. III 380.

JWR mined the No. 5 Mine using a single longwall for most coal removal. 27 FMSHRC
at 758-59. The longwall began producing coal on the H panel approximately a week before the
accident. Gov't Ex. 10 at 2. To develop longwall panels, JWR used continuous mining
machines, and in September 2001 the development units were the Nos. 4 and 6 Sections. 27
FMSHRC at 759; Gov't Ex. 10 at 2. Coal was mined from the Blue Creek Seam, an extremely
soft seam that tends to liberate high quantities of methane. 27 FMSHRC at 759. As a result, the
mine is considered to be very gassy. Id.

During the day shift on Friday, September 21, water was observed coming from the roof
in the No. 4 Section near Survey Station ("SS") No. 13333, which was located three crosscuts
outby the face. Id. at 760; Gov't Ex. 10 at 4. Supplemental roof support was added there. Id.
On the following shift, power was advanced and the belt was moved up to the second crosscut
outby the face. Id. At that time, the scoop battery charging station was moved up to the third
crosscut outby the face, adjacent to the SS 13333 intersection. Id.

Mining resumed for the next two shifts (September 22 midnight and day), and water was
again observed dripping at the SS 13333 intersection. Id. Coal was not mined during the
following two shifts -- the September 22 afternoon maintenance shift and the September 23
midnight shift. 27 FMSHRC at 760-61; Gov't Ex. 10 at 4. The mine foremen did not detect any
deterioration in roof conditions on those shifts. Id.

A. September 23 Midnight and Day Shifts

Albert "Jack" Dye, Jr., was assigned to conduct the preshift examination of the No. 4
Section for the incoming September 23 day shift. Id. at 761. Dye's supervisor that night was
Randy Hagood. Id. at 806. Because of a fan check, Dye could not go underground during his
shift at first, but he nevertheless began his preshift examination by 4:00 a.m. Id.; Tr. III 447.

Dye was to examine, among other areas of the mine, the Nos. 4 and 6 Sections. Tr. III
382-83. According to Dye, when he asked Hagood whether he should completely examine those
sections, Hagood told him to examine the electrical installations, which included power centers
and scoop chargers. 27 FMSHRC at 806; Tr. III 383-84. Consequently, Dye's examination
terminated at the power center on each section, and he did not examine the face of either section.
27 FMSHRC at 806; Tr. III 384-90, 395; Gov't Ex. 83-C. Dye did not examine further because,
with the power remaining off after the fan check, no work could occur inby the power centers on
the next shift until power was restored. 27 FMSHRC at 806; Tr. III 384, 447-49, 486-88. When
he went underground, Dye believed that no one would be working on the No. 4 Section during
the shift. 27 FMSHRC at 806. Upon exiting the mine around 6:30 a.m., Dye completed his
written preshift report, which indicated that no hazards were found in the areas examined,
including the power center and scoop battery charger on the No. 4 Section. Id.; Gov't Ex. 36-C.

No production was scheduled for the Nos. 4 and 6 Sections on the oncoming day shift,
but miners were to perform general maintenance work there. 27 FMSHRC at 806; Gov't Ex. 10
at 5; Tr. IV 127. Upon his arrival at the mine, maintenance foreman John Puckett checked Dye's
preshift report and learned that Dye had not examined beyond the power center on the No. 4
Section. 27 FMSHRC at 806 & n.56; Tr. IV 126-27, 131-32, 195.

There were eight men working under Puckett during that day shift. Electricians Ray
Milam and Don Coleman were to work on the No. 6 Section, while electricians Jeff Gerald and
Ike Smith would work on the No. 4 Section, along with roof bolters David Terry and Johnny
Sealy. Tr. IV 132-33. Also on the crew were scoop operator Larry Jessee and general laborer
Joe Phillips. Tr. IV 133. While Jessee and Phillips went to retrieve roof bolts they would deliver
to the No. 4 Section, Puckett took the other six men on a man trip to the No. 4 Section. Tr. IV
134-35. Milam and Coleman waited on the bus while Puckett took the other four crew members
to the power center, where he had them wait at a nearby dinner hole while he examined the face
area of the No. 4 Section. Tr. IV 135-36.

Puckett considered the inspection to be both a supplemental preshift examination to
Dye's examination, as well as an onshift examination. 27 FMSHRC at 807 n.57; Tr. IV 162-66,
202-06. When Puckett called to report the results of his inspection, those results were recorded
only as an onshift examination. 27 FMSHRC at 807 n.57; Tr. IV 231; JWR Ex. 111.

Because power had not yet returned to the No. 4 Section, Puckett, upon completing his
examination, directed the two electricians to make repairs on a continuous miner and told the two
roof bolters to move supplies up from an outby supply hole. Tr. IV 206. (1) Puckett thereafter left
the No. 4 Section for the No. 6 Section with the two other electricians, and conducted a similar
examination there. Tr. IV 206-09. The maintenance work on the No. 6 Section occupied Puckett
until he performed a preshift examination of the No. 6 Section for the oncoming shift and then
returned to the No. 4 Section to examine it. Tr. IV 209-29. During his examination of the No. 4
Section, Puckett noticed that the roof problem was getting worse, so plans were made for greater
roof control measures to be taken on the next shift before mining resumed. 27 FMSHRC at 761-62; Tr. IV 227-29; Gov't Ex. 10 at 5-6.

B. September 23 Afternoon Shift

At the start of the September 23 afternoon shift, around 3:00 p.m., 28 hourly miners and
four supervisors went underground for a shift devoted to maintenance work. 27 FMSHRC at
762; Gov't Ex. 10 at 6. One production foreman for the shift was to supervise work in and
around the longwall, while the other, Tony Key, was responsible for supervising the Nos. 4 and 6
Sections. 27 FMSHRC at 762; Gov't Ex. 10 at 6. Also underground were a belt foreman and
outby foreman Dave Blevins. 27 FMSHRC at 762 & n.6; Gov't Ex. 10 at 6. The
Communications Officer ("CO") at the mine, Harry House, supervised the communications room
on the mine's surface for the 12-hour period that would begin around 5:00 p.m. Tr. V 337; Gov't
Ex. 10 at 6.

When Key and members of his crew arrived shortly after 4:00 p.m. at the No. 4 Section, it
was apparent that the roof problems Key had been alerted to earlier by Puckett's preshift exam
were getting even worse. 27 FMSHRC at 762-63; Gov't Ex. 10 at 7. After some preparatory
work, Key and two miners, Gaston "Junior" Adams and Michael McIe, began to build cribs in
the No. 2 entry, starting about 50 feet outby the SS 13333 intersection where the roof was
deteriorating, while another crew member, motorman Jim "Skip" Palmer, delivered the supplies
they needed. 27 FMSHRC at 763; Gov't Ex. 10 at 8-9. Before that work progressed very far,
however, a large rock fell, and then the entire roof in that intersection collapsed. 27 FMSHRC at
763; Gov't Ex. 10 at 8. A scoop battery, which was hung from roof bolts and connected to the
battery charger by cables that were not energized, was in the area where the roof collapsed. 27
FMSHRC at 763; Gov't Ex. 10 at 7-8.

With Adams and McIe nearby, Key started walking outby the fall. 27 FMSHRC at 763;
Gov't Ex. 10 at 8. He intended to de-energize the section and to telephone a report of the fall to
the communications room so that MSHA could be contacted, when the first explosion occurred
at around 5:20 p.m. Id. This detonation blew Key, McIe, and Palmer, who was at the end of the
track, further outby, while Adams was pinned under debris. 27 FMSHRC at 763-64; Gov't Ex.
10 at 8-9. Key's back was injured while McIe suffered from burns and back and rib injuries. 27
FMSHRC at 763; Gov't Ex. 10 at 8. Key, McIe, and Adams were separated by the explosion,
and had a hard time seeing each other in the dusty atmosphere, especially given that Key and
McIe had lost their hard hats and lamps. 27 FMSHRC at 764; Gov't Ex. 10 at 9. After McIe
took Adams' hat and lamp, Key found McIe. Id. The two concluded that Adams could not be
moved because of his injuries, and they began their journey out of the mine. Id. Many of the
other miners underground felt effects from the explosion immediately or soon thereafter. 27
FMSHRC at 764; Gov't Ex. 10 at 9-10.

As a result of ventilation disruptions caused by the first explosion, another, much larger
explosion occurred approximately 55 minutes later. 27 FMSHRC at 769 & n.14; Gov't Ex. 10 at

16. As set forth in great detail in the judge's decision, the 12 miners who, in addition to Adams,
    perished in the second explosion had come from other areas of the mine and entered or
    approached the No. 4 Section. Most if not all of the 12 miners were responding to assist in
    bringing Adams out after learning of his situation from Key and the other injured members of his
    crew, or from communications with CO House (after he had spoken with Key). In addition,
    some of the miners may have believed that miners other than Adams needed assistance, and
    some may have believed there was a fire that needed to be extinguished. See 27 FMSHRC at
    764-70; see also Gov't Ex. 10 at 9-17.

C. Rescue and Recovery Operations and Subsequent Investigation

After it was determined that 13 miners were missing, extensive rescue efforts were
undertaken by three mine rescue teams. 27 FMSHRC at 770-71; Gov't Ex. 10 at 17-20. Four
miners were found in the 4 East Section, three of whom were dead and a fourth who died the
next day. 27 FMSHRC at 771; Gov't Ex. 10 at 18-19. The rescue team's findings regarding the
damage and conditions in the No. 4 Section led to the conclusion that no other miners could have
survived. 27 FMSHRC at 771; Gov't Ex. 10 at 20. The mine was flooded in order to put out a
fire, and in early November 2001 a team was able to locate and recover the bodies of Adams and
eight other miners near SS 13333. 27 FMSHRC at 771-72; Gov't Ex. 10 at 20-21.

Following its investigation into the explosions at the No. 5 Mine, MSHA issued eight
citations and orders in this proceeding. As noted, only three of these orders are presently before
the Commission.

Order No. 7328082 charges JWR with violating section 75.1101-23(a) for failing to
follow, after the first explosion, the evacuation procedures in its "Fire Fighting and Evacuation
Plan," dated July 15, 1999 (Gov't Ex. 34 at 2-7, hereafter "FFEP"). The violation was alleged to
be S&S and due to JWR's unwarrantable failure. Gov't Ex. 2.

Order No. 7328085 charges JWR with violating section 75.1101-23(c) by failing to
conduct fire drills at 90-day intervals for all miners. The violation was alleged to be S&S and
due to JWR's unwarrantable failure. Gov't Exs. 4, 4A.

Order No. 7328105 charges a violation of section 75.360(b)(3) because JWR improperly
limited the September 23 preshift examination of the No. 4 Section, prior to the oncoming day
shift, to areas from the beginning of the section up to and including the power center, and
excluded the areas inby the power center, e.g., the working section, where work was scheduled.
The violation was alleged to be S&S and caused by JWR's unwarrantable failure. Gov't Ex. 7 at

1. (2)

D. Judge's Decision (3)

With regard to Order No. 7328105, the judge found that JWR had scheduled miners to
perform maintenance work on the No. 4 Section prior to Dye's preshift examination on
September 23. 27 FMSHRC at 808. Based on that finding, the judge concluded that Dye's
failure to inspect all areas in the No. 4 Section, including "working places," violated section
75.360(b)(3). Id. He further concluded that the violation was S&S, based in part on finding that
Puckett and his crew had entered an area in the No. 4 Section that had not been inspected. Id. at
809-10. He also concluded that the violation was due to JWR's unwarrantable failure because
Puckett took his crew into an area that had not been examined, indicating a serious lack of
reasonable care. Id. at 811.

In addressing Order No. 7328082, the judge reviewed his prior decision on JWR's motion
for summary decision (27 FMSHRC at 623-28), and again concluded that JWR could be cited

under section 75.1101-23(a) because the standard applied to explosion-related emergencies. 27
FMSHRC at 814-15. However, because the standard was not restricted to fires, the judge then
examined the applicable plan to determine whether it implicitly or explicitly included provisions
relating to explosions. Id. at 815. On the record before him, the judge concluded that JWR's
FFEP applied only to "fires" and, therefore, JWR was not in violation for having failed to follow
the evacuation procedure in the FFEP after the first mine explosion. Id. at 815-17.

With regard to Order No 7328085, the judge concluded that the language of the
governing regulation, section 75.1101-23(c), is clear in requiring that all miners must participate
in fire drills at least every 90 days. Id. at 819. The judge held that the regulation is also clear in
requiring a "simulation" of actions required in an operator's firefighting and evacuation plan. Id.
The judge further concluded that the record indicated that JWR violated the standard by failing to
ensure that all miners had participated in simulated fire drills at least every 90 days. Id. at 820-24. The judge determined that the violation was not S&S because JWR regularly instructed its
miners in firefighting practices and techniques. Id. at 824-25. Finally, the judge rejected the
unwarrantability designation because JWR "honestly believed" that it was in compliance with the
standard based on the Secretary's previous failure to cite it and its reliance on the Secretary's
Program Policy Manual ("PPM"). Id. at 826.

II.

Disposition

A. Section 75.1101-23(a)

Order No. 7328082 charged JWR with violating section 75.1101-23(a) after the first
explosion by failing to follow the evacuation procedures set forth in the FFEP adopted pursuant
to that standard. Gov't Ex. 2. In ruling upon JWR's pre-trial motion for summary decision, the
judge held that, as a matter of law, an operator could be cited under section 75.1101-23(a) for
failing to comply with its approved fire fighting and evacuation plan in the case of an explosion.
26 FMSHRC at 627-28. In other words, he concluded that the regulation could be interpreted to
authorize MSHA to require that operators' plans address explosion-related emergencies as well
as fire-related emergencies. Id. However, he further ruled that material facts were in dispute and
that the Secretary had the burden of showing at trial that JWR had actually contravened the
requirements of the FFEP. Id. at 628. He did not decide whether the FFEP actually covered
explosion-related emergencies. The judge subsequently denied JWR's motion for
reconsideration or certification of his ruling to the Commission for interlocutory review. 26
FMSHRC 734 (Aug. 2004) (ALJ). The Commission denied JWR's petition for interlocutory
review. 26 FMSHRC 754 (Sept. 2004).

Following the hearing, the judge again denied JWR's request to reconsider his decision,
reaffirming his earlier ruling. 27 FMSHRC at 814-15. The judge went on to hold, however, that
according to the FFEP's explicit and implicit terms, the only event that would trigger the
evacuation requirements of the plan was a fire that could not "be extinguished or brought under
positive control." Id. at 815-17 (quoting FFEP, sect. V.a.8). Because the FFEP contained no
reference to evacuation in the event of explosion, the judge vacated the order. Id. at 816-17, 827.

1. Interpretation of Section 75.1101-23(a)

Before addressing the applicability of the FFEP to evacuations following explosions, we
first decide whether the regulation governing the FFEP in this case, section 75.1101-23(a),
applies to explosions and, therefore, whether JWR could be cited under the regulation. Based on
the language of the regulation and the principles governing mine plans, we conclude that section
75.1101-23(a) did provide general authority for MSHA to require that emergency plans cover
explosion-related emergencies. In section A.2, infra, we address the separate question of whether
the FFEP did, in fact, cover explosion-related emergencies.

At the time of the explosions, section 75.1101-23(a) provided:

Each operator of an underground coal mine shall adopt a
program for the instruction of all miners in the location and use of
fire fighting equipment, location of escapeways, exits, and routes
of travel to the surface, and proper evacuation procedures to be
followed in the event of an emergency. Such program shall be
submitted for approval to [MSHA].

(1) The approved program of instruction shall include a
specific fire fighting and evacuation plan designed to acquaint
miners on all shifts with procedures for:

(i) Evacuation of all miners not required for fire fighting
activities;

(ii) Rapid assembly and transportation of necessary men,
fire suppression equipment, and rescue apparatus to the scene of
the fire; and,

(iii) Operation of the fire suppression equipment available
in the mine.

(2) The approved program of instruction shall be given to
all miners annually, and to newly employed miners within six
months after the date of employment.

30 C.F.R. § 75.1101-23 (2001). (4)

Where the language of a regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980)); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). It is
only when the meaning is ambiguous that deference to the Secretary's interpretation is accorded.
See Udall v. Tallman, 380 U.S. 1, 16-17 (1965) (finding that reviewing body must "look to the
administrative construction of the regulation if the meaning of the words used is in doubt")
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 (1945)).

JWR contends that section 75.1101-23(a) was directed only at fire-related emergencies,
and thus should not be read to extend to explosion-related emergencies. JWR Resp. Br. at 2-9.
Here, the judge read the standard's requirement that an operator's fire fighting and evacuation
program include instruction in the "proper evacuation procedures to be followed in the event of
an emergency" to authorize MSHA to require that the program cover not only fire-related
emergencies, but responses to other emergency situations as well, such as explosions. 30 C.F.R.
§ 75.1101-23(a) (2001) (emphasis added); 26 FMSHRC at 626-28; 27 FMSHRC at 814-15.

The language of section 75.1101-23(a) provides MSHA sufficient latitude to require that
emergency plans approved under that section address explosion-related emergencies. If MSHA
had intended the standard to apply only to fires, MSHA could have easily used the term "a fire"
instead of "an emergency." It did not. Given MSHA's use of the broad term "emergency" in
section 75.1101-23(a), we reject the argument that the order here should have been vacated on
the ground that section 75.1101-23(a) could not apply to explosion-related emergencies. (5) We,
therefore, conclude that the regulation, by its terms, applies to all types of emergencies, including
those caused by explosions.

JWR also contends that Order No. 7328082 was invalid because section 75.1101-23(a)
only required that an operator obtain MSHA's approval for a training program covering elements
listed in the regulation, which it had done. JWR Resp. Br. at 12-16. According to JWR, section
75.1101-23(a)(2) specifies only when and how often the program of instruction must be given to
miners; nothing more was required of JWR, including that it adhere to the program in
emergencies. Id. at 13, 16. It points out that, in contrast, other MSHA regulations imposing a
plan obligation require operators to follow the plan. Id. at 17-20 (citing 30 C.F.R. §§ 75.370
(ventilation control), 75.220(a)(1) (roof control), and 71.301(c) (respirable dust control)).

We conclude that JWR's interpretation of section 75.1101-23(a) would contravene the
clear Congressional intent that plan provisions be enforced as mandatory standards. (6) JWR's
suggestion that all the standard required of it in this instance was to adopt a training plan and
provide training with respect to emergency responses, with no obligation whatsoever to follow
the plan during a fire or other emergency, is an overly literal construction that is inconsistent with
the regulation's purpose. Moreover, the absence of explicit language in section 75.1101-23(a)
requiring an operator to follow the plan's provisions does not excuse an operator's failure to do
so. In Ziegler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976), a decision cited with
approval in the legislative history of the Mine Act, the court held that approved ventilation plans
under the Mine Act's precursor, the Federal Coal Mine Health and Safety Act of 1969, are
enforceable even though its enforcement provisions were, as a literal matter, triggered only by
violations of mandatory standards.

In summary, we conclude that section 75.1101-23(a) provided general authority for
MSHA to require that emergency plans approved under that regulation contain provisions
addressing evacuations in case of explosions. Below we address the issue of whether the FFEP
approved by MSHA did, in fact, impose evacuation procedures in the case of explosions.

2. Interpretation of the FFEP (7)

The parties agree that the FFEP does not contain a provision that expressly addresses
JWR's obligation to evacuate the mine in the event of an explosion. According to the Secretary,
she intended under section 75.1101-23(a) that documents such as the FFEP would govern
evacuations not just during fires but during any emergency. S. Br. at 10-11. The Secretary
argues that JWR, having drafted the plan's provisions and having obtained MSHA's approval
pursuant to the terms of the standard, cannot claim that the evacuation provisions do not apply to
emergency situations other than fires. Id. at 11-12. In essence, the Secretary is requesting the
Commission to supply a provision that could have been included in the FFEP but was not.

Commission precedent does not support the Secretary's approach. In Jim Walter
Resources, Inc., 9 FMSHRC 903 (May 1987), the Commission addressed the process by which
mine plans are adopted by operators and their provisions enforced by the Secretary, including
cases in which the plan is ambiguous on an issue. The Commission held that "[i]n an
enforcement action before the Commission, the Secretary bears the burden of proving any alleged
violation. In plan violation cases the Secretary must establish that the provision allegedly
violated is part of the approved and adopted plan and that the cited condition or practice violates
the provision." Id. at 907 (emphasis added). The Commission further held that, while "'it
should not be presumed lightly that terms [in an approved] plan do not have an agreed upon
meaning,'" in the event a plan provision is found to be ambiguous, the Secretary must "dispel the
ambiguity" by establishing the intent of the parties on the issue through credible evidence as to
the history and purpose of the provision and evidence of consistent enforcement. Id. (quoting
Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981)). (8)

The Secretary made no attempt below to meet her burden under JWR by establishing,
through testimony of those involved in drafting and approving the FFEP, the intent of the
Secretary or JWR with respect to JWR's evacuation obligations under the plan after an
explosion. Neither did the Secretary rely upon the manner in which the plan was implemented or
enforced as a mandatory standard.

We agree with the judge that neither JWR nor the Secretary appeared to have considered
how the FFEP applied in the event of an explosion. See 27 FMSHRC at 816 n.63. Moreover, as
the judge discussed, the scant enforcement history on the issue tends to contradict the Secretary's
position. See id. (citing 1993 explosion resulting in injuries and damaged ventilation controls in
which actions similar to those taken by miners in this case were not cited despite a plan similar to
the FFEP being in effect). Finally, we agree with JWR that the broadening of the successor plan
to the FFEP so that explosions would be covered by evacuation orders indicates that the
Secretary, as well as JWR, recognized that the FFEP simply did not apply to the situation that
followed the first explosion. JWR Resp. Br. at 30; JWR Ex. 266 (successor plan to FFEP
adopted before promulgation of ETS, discussed supra n.4).

Instead of presenting evidence of MSHA's and JWR's understanding of JWR's
obligations to evacuate under the FFEP in the case of an explosion, the Secretary relies upon
other provisions in the FFEP to establish that the plan was violated. In particular, the Secretary
contends that the judge erred by failing to consider the FFEP provision that stated that "[a]
supervisor or designated person will assemble all men promptly and lead the way during the
evacuation" (hereinafter referred to as the "assemble and lead" provision). S. Br. at 13-21 (citing
FFEP at 3). (9) According to the Secretary, that provision applied generally to any evacuation the
operator undertook, not just to evacuations in response to a fire. Id. at 14-15, 17-18. The
Secretary argues that the "assemble and lead" provision is written without "limiting language"
and therefore cannot be limited to evacuations undertaken in response to a fire. Id. at 18.

We do not agree with the Secretary that the "assemble and lead" provision establishes the
parties' intent with respect to post-explosion evacuations. The language of the provision does
not address what events trigger its operation. FFEP at 3. The judge properly ruled that the first
question that must be answered is whether the FFEP required an evacuation in the event of an
explosion. 27 FMSHRC at 816-17. The only triggering events for an evacuation that were
directly addressed in the document are carbon monoxide monitor alarms and fires which cannot
be brought under control. FFEP at 2, 5. In short, the "assemble and lead" provision established
how evacuations were to be carried out in the event of an emergency, but other provisions of the
FFEP must be read to determine when an evacuation was required.

In United Mine Workers of America v. Dole, 870 F.2d 662 (D.C. Cir. 1989), the court
held that MSHA always retains final responsibility for deciding what must be included in a plan
and quoted from legislative history indicating that final mine plans result from the Secretary's
"exercise [of] judgment with respect to the content of such plans." Id. at 669 n.10 (quoting S.
Rep. No. 95-191 at 25, Legis. His. at 613). It follows that the Secretary ultimately bears
responsibility for a mine plan's silence on a subject. We thus do not agree with the Secretary
that, because under section 75.1101-23(a) she could have withheld approval of the FFEP for its
failure to set forth evacuation procedures to be followed in all emergencies, the evacuation
provisions that were included in the approved FFEP must be interpreted to include all
emergencies.

We conclude that, except for carbon monoxide alarms or fires that could not be
controlled, the FFEP was silent with respect to the circumstances that would trigger the
evacuation of the mine. Consequently, absent evidence establishing the intent of JWR and the
Secretary that the FFEP would apply to explosion-related evacuations, we cannot conclude that
the FFEP was violated in this instance by JWR. (10) The judge correctly concluded that, while "a
provision requiring miners to evacuate in the event of an explosion . . . may have been highly
desirable . . . [and] necessary to fully effectuate miner safety[,] . . . the Secretary cannot at this
late date supply through an administrative law judge's decision something she wishes she had
insisted on more than 6 years ago." 27 FMSHRC at 817.

Accordingly, we affirm the judge's dismissal of Order No. 7328082.

B. Section 75.1101-23(c)

Order No. 7328085 charges JWR with violating section 75.1101-23(c) by failing to
conduct fire drills at 90-day intervals before the events of September 23, 2001. Gov't Exs. 4, 4A.
At the time of the explosions, section 75.1101-23(c) required in pertinent part:

Each operator of an underground coal mine shall require all
miners to participate in fire drills, which shall be held at periods of
time so as to ensure that all miners participate in such a drill . . . at
intervals of not more than 90 days . . . .

(1) The operator shall certify by signature and date that the
fire drills were held in accordance with the requirements of this
section. Certifications shall be kept at the mine and made available
on request to an authorized representative of the Secretary.

(2) For purposes of this paragraph (c), a fire drill shall
consist of a simulation of the actions required by the approved fire
fighting and evacuation plan described in paragraph (a)(1) of this
section.

30 C.F.R. § 75.1101-23(c) (2001).

The judge held that the training conducted by JWR did not satisfy its obligation under
section 75.1101-23(c) to conduct for "all" miners "a simulation of the actions required by the"
FFEP. 27 FMSHRC at 819-24. The judge concluded that a violation was established by the
testimony of eight JWR miners that they had not participated in an on-site simulation of the
actions required in the FFEP, and that the records that JWR had provided MSHA to meet the
certification requirements of the standard were insufficient to demonstrate otherwise. Id. at 822-24. (11) Citing Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997), the judge further
found that the plain meaning of section 75.1101-23(c) provided JWR with adequate notice of the
standard's requirements in this instance. Id. at 819 n.68.

The judge affirmed the order but not the allegations that the violation was S&S and
attributable to JWR's unwarrantable failure, and reduced the Secretary's proposed penalty from
$55,000 to $500. Id. at 819-26. We address below whether a violation was established, whether
JWR had adequate notice of what was required by the standard, and whether the judge properly
determined that the violation was not S&S and was of moderate gravity. (12)

1. Violation

JWR argues that the judge erred in interpreting section 75.1101-23(c) to require that
operators must certify that simulations were conducted for "all" miners. JWR Br. at 20, 26-30.
JWR also contends that such an interpretation is contrary to the Commission's decision in
Southwestern Illinois Coal Corp., 5 FMSHRC 1672 (Oct. 1983). Id. at 27-28. The Secretary
maintains that the judge correctly interpreted the standard according to its plain meaning to
require that all miners participate in fire drills. S. Resp. Br. at 35-39.

Below, the judge held that "'all miners' means exactly what it says" in section 75.1101-23(c) and that the standard was not satisfied when only some miners participated in the required
fire drills. 27 FMSHRC at 820-21. We agree with that plain meaning interpretation of the
regulation. (13)

JWR does not dispute the evidentiary basis for the judge's finding "that there was a
general lack of on-site simulations at the mine," and his finding is supported by substantial
evidence. (14) See 27 FMSHRC at 822-23. The judge carefully read the FFEP to find the specific
duties that miners and supervisors were required to perform under that plan and thus needed to be
simulated during the fire drills required by section 75.1101-23(c). See 27 FMSHRC at 821-22.
The judge then credited the testimony of eight miners, none of whom could recall having
participated in a "hands on" fire drill or fire fighting simulation in the months, or even, in the
case of some of the miners, years preceding the explosions. Id. at 822. A judge's credibility
determinations are entitled to great weight and may not be overturned lightly. Farmer v. Island
Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC
2767, 2770 (Dec. 1981). We see no basis to overturn the judge's credibility findings in this
instance.

Moreover, based on those miners' similar accounts, the judge inferred that there had been
a general lack of on-site simulations at the mine. 27 FMSHRC at 823. "[T]he substantial
evidence standard may be met by reasonable inferences drawn from indirect evidence." Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984). Inferences drawn by the judge are
"permissible provided they are inherently reasonable and there is a logical and rational
connection between the evidentiary facts and the ultimate fact inferred." Id. Based on the
foregoing evidence, the judge reasonably inferred that JWR generally failed to conduct the
required simulations. Consequently, we conclude that substantial evidence supports the judge's
determination that not all miners had participated in the simulated actions required by section
75.1101-23(c). Thus, a violation of that standard was established.

2. Notice

Where the imposition of a civil penalty is at issue, considerations of due process prevent
the adoption of an agency's interpretation "from validating the application of a regulation that
fails to give fair warning of the conduct it prohibits or requires." Gates & Fox Co. v. OSHRC,
790 F.2d 154, 156 (D.C. Cir. 1986) (citations omitted). An agency's interpretation may be
permissible but nevertheless may fail to provide the notice required to support imposition of a
civil penalty. See General Electric Co. v. EPA, 53 F.3d 1324, 1328-34 (D.C. Cir. 1995); Phelps
Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982).

JWR contends that it lacked fair notice here because the series of exercises in which it
required its miners to participate under the FFEP were, in effect, approved in MSHA's Program
Policy Manual ("PPM") in effect at the time, (15) and through the agency's enforcement policy, as
sufficient to satisfy the quarterly drill requirement of section 75.1101-23(c). Accordingly, JWR
argues that the judge erred when he concluded that JWR could be penalized for failing to
recognize that only simulations satisfied the standard. JWR Br. at 22-25, 31-35.

As the judge found and we agree, section 75.1101-23(c) clearly required operators to
conduct quarterly fire drills in which "all" miners are to participate. In addition, by its plain
terms the regulation stated that such fire drills were to be simulations of the actions required by
the applicable fire fighting and evacuation plan, which here was the FFEP. 30 C.F.R.
§ 75.1101-23(c)(2) (2001). "The Commission has held that, where 'the meaning of a standard is
clear based on its plain language, it follows that the standard provided the operator with adequate
notice of its requirements.'" Nolichuckey Sand Co., 22 FMSHRC 1057, 1061 (Sept. 2000)
(quoting LaFarge Constr. Materials, 20 FMSHRC 1140, 1144 (Oct. 1998)).

Moreover, the PPM is consistent with section 75.1101-23(c). Although the PPM states
that "various types of training will constitute a fire drill," that language applied only to those
drills conducted pursuant to the fire fighting and response program of instruction under section
75.1101-23(a), which applied to training of new miners and annually training of experienced
miners. The PPM language was not directed at the requirement of subsection (c) that a fire drill
be conducted quarterly, an additional requirement of that subsection. The only language of the
PPM that was directed at subsection (c) does not establish that MSHA considered JWR's
piecemeal method of fire response instruction to constitute a fire drill under section 75.1101-23(c). (16) We therefore affirm the judge's determinations that JWR violated section 75.1101-23(c)
and had adequate notice of its requirements.

3. S&S and Gravity of the Violation

In deciding whether the violation of section 75.1101-23(c) was S&S, the judge noted the
record evidence showing JWR's No. 5 mine to be one of the gassiest in the country and one
which had experienced occasional fires. 27 FMSHRC at 824. The judge concluded, however,
that because JWR regularly instructed its miners in fire fighting practices and techniques, it was
not reasonably likely that the failure to conduct fire drills that met the requirements of section
75.1101-23(c) would result in an injury. Id. at 825. Accordingly, he found that the violation was
not S&S. Id. The judge further held that, while none of the fatalities in this case was due to
JWR's failure to comply with former section 75.1101-23(c), it is conceivable that the failure to
conduct on-site, hands-on fire drills for all miners could have serious consequences in the event
of a fire. Id. Therefore, he found that the violation of the standard was moderately serious for
penalty assessment purposes. Id.

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). An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985).

The Secretary asserts that the judge erred in his determination that the third Mathies
element was not established because he did not consider the testimony of MSHA official
Kenneth Murray regarding the critical importance of on-site simulations. S. Br. at 40, 43 (citing
Tr. IX 81-82). (17) We do not agree.

The judge's decision reflects that he fully considered the importance of JWR miners
being trained in various fire response measures. At the outset of his S&S analysis, the judge
recognized that

[i]f JWR had failed to train its miners to fight a fire, the likelihood
of the miners exhibiting ineptitude in fire suppression techniques
when confronted with a fire, the likelihood of their confusion in
how to respond to a fire, and even the likelihood of panic in the
event of a fire would be increased.

27 FMSHRC at 824-25. Consequently, the judge concluded that, although JWR did not provide
all miners on-site simulated fire drills, JWR regularly instructed its miners in firefighting
practices and techniques. Id. at 825 & n.73. Moreover, the judge credited the testimony of six of
the supervisors who signed JWR's fire drill records stating that the drills the company considered
compliant with section 75.1101-23(c) were conducted each quarter. Id. In light of the foregoing,
the judge concluded that it was not reasonably likely that the lack of training specified in the
standard would result in an injury and therefore the violation was not S&S (18) Substantial
evidence supports the judge.

We also find unavailing the Secretary's argument that JWR's failure to conduct
simulations resulted in its miners not understanding the limitation of an SCSR. S. Br. at 40-41,
43-44. In particular, the Secretary contends that if two of the deceased miners, Wendell Johnson
and Joseph Sorah, had participated in simulations, they would have been more likely to follow
the lead of miner Robert Tarvin, and thus would not have volunteered in response to supervisor
Blevins' request for three men who did not mind using an SCSR to accompany him into the No.
4 Section. Id. According to the Secretary, Johnson and Sorah would have recognized, as Tarvin
did, that an SCSR is not designed to contain enough oxygen for the task at hand. Id. This
account of events does not demonstrate that the judge's S&S determination should be overturned.
There is no evidence that Tarvin knew the limitations of an SCSR better than Johnson or Sorah
(or Blevins for that matter), or that the two miners were unaware of the limitations of the SCSR.
Nor has it been shown that these limitations would have been taught as part of a hands-on
firefighting simulation, given that SCSR training was separately being given to its miners by
JWR.

Accordingly, we conclude that the judge's determination that the violation of section
75.1101-23(c) was not S&S and associated finding of moderate gravity are supported by
substantial evidence and affirm both.

C. Section 75.360(b)(3)

Order No. 7328105 charges a violation of section 75.360(b)(3) and alleges that, during
the September 23 day shift, miners were scheduled to work at a location within the No. 4 Section
that was admittedly not included in the examination conducted prior to the shift. Gov't Ex. 7 at

1. (19) The pre-shift examination standard provides in pertinent part:

(a)(1) . . . a certified person designated by the operator must
make a preshift examination within 3 hours preceding the
beginning of any 8-hour interval during which any person is
scheduled to work or travel underground. No person other than
certified examiners may enter or remain in any underground area
unless a preshift examination has been completed for the
established 8-hour interval. The operator must establish 8-hour
intervals of time subject to the required preshift examinations.

---

(b) The person conducting the preshift examination shall
examine for hazardous conditions, test for methane and oxygen
deficiency, and determine if the air is moving in its proper
direction at the following locations:

---

(3) Working sections and areas where mechanized mining
equipment is being installed or removed, if anyone is scheduled to
work on the section or in the area during the oncoming shift. The
scope of the examination shall include the working places,
approaches to worked-out areas and ventilation controls on these
sections and in these areas, and the examination shall include tests
of the roof, face and rib conditions on these sections and in these
areas.

30 C.F.R. § 75.360(a)(1) & (b)(3) (2001) (emphasis added).

The Commission has recognized that the preshift examination requirements are "of
fundamental importance in assuring a safe working environment underground." Buck Creek
Coal Co., 17 FMSHRC 8, 15 (Jan. 1995); see also 61 Fed. Reg. 9764, 9790 (Mar. 11, 1996)
("The preshift examination is a critically important and fundamental safety practice in the
industry. It is a primary means of determining the effectiveness of the mine's ventilation system
and of detecting developing hazards, such as methane accumulations, water accumulations, and
bad roof.").

1. Violation

The judge found that, because maintenance foreman John Puckett's crew was
"scheduled" to work on the No. 4 Section since the previous Thursday, Dye, the pre-shift
examiner, should have conducted a preshift examination on the entire No. 4 Section. 27
FMSHRC at 808. The judge concluded that Dye's failure to do so constituted a violation of
section 75.360(b)(3). Id.

JWR contends that there is not substantial evidence to support either the judge's finding
that work had been scheduled on the No. 4 Section since the previous Thursday or that the
location of the work for Puckett's crew had been assigned. JWR Br. at 8-10; JWR Reply Br. at
2-5. JWR further submits that the schedule for maintenance and roof bolting on the No. 4
Section was not operative when Dye conducted his preshift examination. JWR Br. at 10-11.

Section 75.360(b)(3) states that the preshift examination is to include "working sections,"
which are defined as "[a]ll areas of the coal mine from the loading point of the section to and
including the working faces." 30 C.F.R. § 75.2. Puckett's crew included roof bolters Terry and
Sealy, and Puckett testified that their original assignment "was to bolt the faces up," as the faces
had been "left unbolted until the weekend." Tr. IV 132-34. Puckett further explained that two
other miners on his crew, scoop operator Jessee and laborer Phillips, would have serviced the
faces once the faces had been bolted. Tr. IV 133-35. In short, there is substantial record
evidence that prior to the power outage, maintenance work was scheduled inby the power center
for the No. 4 Section, including the face, and thus within the working section. (20)

JWR does not dispute this evidence, but argues that the continuing power outage caused
the work schedule for the mine, including the No. 4 Section, to change. JWR Br. at 11. JWR
thus defends the incompleteness of Dye's preshift examination on the narrow ground that, during
that 3-hour window Dye had to conduct his examination, Dye believed that no work at the face
on the No. 4 Section would take place during the day shift because of the power outage.
However, the only support for JWR's position is Dye's hearsay testimony that Hagood told him
not to do a full preshift and Dye's "understanding" that he was told this because no one on the
incoming shift was going to be "up there." Tr. III 382-84, 390-95, 447-49. (21) This testimony is
insufficient to establish that miners were not scheduled to work on the No. 4 Section during the
shift.

Moreover, as JWR recognizes in its brief, by the time the day shift began, Puckett learned
that his crew would be assigned to bolt the unbolted faces. JWR Br. at 8. Puckett testified that
he had miners Jessee and Phillips deliver roof bolts to Section 4. Tr. IV 134. The evidence
further shows that miners were scheduled to work on the No. 4 Section, that JWR planned to
resume roof bolting at the face once the power returned during the day shift, and that it took a
number of steps in advance to be able to immediately do so. Puckett testified that power could
return at anytime during the shift and that it was his "hope that power would be restored fairly
early in the shift." Tr. IV 199, 152-53. The record also indicates that, at the outset of the shift,
Puckett took part of his crew into Section 4 as far as Dye had preshifted, up to the power center,
and he then proceeded alone inby to complete the examination started by Dye, including at the
face. 27 FMSHRC at 807; Tr. IV 199-206.

Given the weight of the evidence, we cannot agree that evidence shows that JWR
changed the existing work schedule, including the expectation that work would occur at the face
sometime during the shift. (22) Thus, we find that substantial evidence supports the judge's finding
of a violation.

We reject JWR's argument that Puckett's examination of the area inby the power center
qualified as a supplemental preshift examination made under section 75.361(a). (23) JWR Br. at 8,
11-12. Supplemental examinations are limited to those circumstances in which miners already
underground are dispatched during the shift to an idle or abandoned area of the mine, which had
not been subject to preshift examination because no miners were originally scheduled to work
there. The violation of section 75.360(b)(3) occurred when Dye failed to conduct a complete
preshift examination of a section where work was scheduled prior to miners entering the mine on
the oncoming shift. Puckett could not undo the violation once the shift had begun.

The 1992 preamble to section 75.361 stated that "MSHA anticipates that under this rule,
supplemental examinations will be conducted during working shifts just before persons are sent
to perform unscheduled tasks in remote areas that have not been preshifted." 57 Fed. Reg.
20,868, 20,895 (May 15, 1992) (emphasis added). Because the record here shows that work was
scheduled inby the power center in the No. 4 Section when Dye performed his preshift
examination, section 75.361 is inapplicable. Accord Buck Creek, 17 FMSHRC at 12 (emphasis
added) (section 75.361 only provides "for a supplemental examination of idle and abandoned
areas whenever miners who are underground are dispatched to an area of the mine that was not
required to be examined as part of the preshift examination."). (24) Thus, we affirm the judge's
finding that JWR violated section 75.360(b)(3).

2. S&S and Gravity of the Violation (25)

The judge found the violation of section 75.360(b)(3) to be S&S. He based this
determination on his findings that: (1) had normal mining operations continued, power would
have been restored and miners would have been sent forward to the face to roof bolt or to other
areas of the section to perform maintenance work; and (2) miners already had advanced well into
the section before the Puckett examination began. 27 FMSHRC at 809-10. Taking into account
the gassy nature of the mine, the presence of electric and diesel power equipment, and the fact
that JWR was working to restore power, the judge determined that the hazard was reasonably
likely to result in an injury-causing event, and that the type of injuries suffered would be
reasonably serious if not fatal. Id. at 810. The judge also concluded that the same evidence
established that the level of gravity of the violation would be serious for purposes of assessing a
penalty. Id. at 810-11.

JWR contends that the judge erred in basing his S&S determination on the assumption
that normal mining operations would have resumed without a complete preshift examination, and
that he misunderstood exactly where on the No. 4 Section Puckett's crew traveled and waited
while Puckett completed his examination. JWR Br. at 15-20. The Secretary points to evidence
regarding the nature of the mine and the violation that she believes supports the conclusion that
the violation was S&S. S. Resp. Br. at 27-31. The Secretary also requests that the Commission
use the opportunity this case presents to adopt a presumption that a violation of the preshift
examination standard is S&S and to shift the burden of production to operators on the issue in
such cases. Id. at 25-27.

We find that substantial evidence supports the judge's determination that JWR's violation
of the preshift standard was S&S. (26) In so doing, we once again apply the Mathies test, slip op. at
17-18. To determine whether the second Mathies criterion was met (27) -- a discrete safety hazard
contributed to by the violation -- it is important to understand the duration of the violation. As
concluded above, the violation began when Dye failed to complete the preshift examination he
was charged with conducting by excluding the working section of the No. 4 Section from the
scope of his examination. Furthermore, according to the terms of the preshift standard, section
75.360, "[n]o person other than certified examiners may enter or remain in any underground
area unless a preshift examination has been completed" for the upcoming shift. 30 C.F.R. §
360(a)(1) (emphasis added). (28)

JWR's contention that any hazard to miners was ameliorated by the fact that miners
waited outside the working section of the No. 4 Section while Puckett examined it provides no
basis for reversing the judge's S&S determination. JWR ignores the fact that miners, both those
who accompanied Puckett and those who did not, were working in and traveling through a
section that should have been entirely preshifted before they entered it but was not. Moreover,
Puckett's examination did not occur immediately at the start of the shift, or even before miners
entered the No. 4 Section, but rather only after Puckett traveled to the face area of the section.
Thus, miners were on the section for a significant amount of time before it had been entirely
preshifted.

During that time, miners were in a section of the mine that had not been fully preshifted
prior to their entering it, so it was proper for the judge to consider the nature of the hazards to
miners that a complete preshift would have disclosed. As the judge took into account, the men
were in a gassy mine, which prior to the shift lacked ventilation due to the fan check. 27
FMSHRC at 810. Given that the detection of methane buildups is one of the reasons a preshift
examination is required, the mine's history as a gassy mine and the recent ventilation disruption
in the mine constitute substantial evidence to support the conclusion that the Secretary has
established the second Mathies criterion.

As for ignition sources, the judge provided extensive record citations regarding the
mine's history of fires and ignitions, including on the No. 4 Section. Some had occurred as
recently as two weeks before the explosion. See 27 FMSHRC at 824-25 n.72. There is also
record evidence of roof falls that very week on the No. 4 Section, both at the face which was
unbolted and remained so during the shift (Tr. V 65-66), and immediately outby the working
section. (29) Roof falls pose another hazard that a preshift examination is intended to detect, and the
potential for them to occur in a gassy mine supports our finding that the second Mathies criterion
has been met. See Buck Creek, 17 FMSHRC at 13.

In terms of the third Mathies factor -- whether there was a reasonable likelihood that the
hazard would result in an injury causing event -- the fact that the area outby the power center
had been examined by Dye is not inconsistent with the conclusion that the violation in this
instance was S&S. In Buck Creek, the Commission concluded that the third Mathies element had
been proven when miners were allowed to work in a preshifted area even though another area of
the mine that should have been examined was not. There, the Commission found that "hazards
in an unexamined portion of the mine could affect" the area in which miners were working. Id.
at 14. (30) Moreover, here there was the risk that one or more of the miners waiting by the power
center could enter the unexamined area before Puckett completed his examination. Indeed, the
testimony of one member of Puckett's crew, roofbolter Terry, can be read to indicate that he may
have done so. Tr. V 24.

Furthermore, the fact that Puckett discovered no hazards in his supplemental examination
of the working section during the next shift does not establish that the violation was not S&S.
The Commission, in determining whether a violation is S&S, considers circumstances assuming
that normal mining operations continue without the intervention of an inspector. U.S. Steel, 7
FMSHRC at 1130. The dissent maintains that we should take the results of Puckett's
examination into account, because here the assumption does not apply in that there was no
inspector's intervention, and thus there is record evidence of what actually transpired after the
violation. Slip op. at 40. We reject that argument for the following reasons: first, because the
violation occurred before Puckett completed his examination of the working section, it is
improper to rely only upon later circumstances to find that the violation was not S&S. Bellefonte
Lime Co., 20 FMSHRC 1250, 1255 (Nov. 1998). Second, because preshift examinations have a
prophylactic purpose and because certain mine conditions are transitory in nature, later
examinations are not sufficiently indicative of the conditions that may have existed at the time
the area should have been examined. Manalapan Mining Co., 18 FMSHRC 1375, 1382 (opinion
of Commissioners Holen and Riley), 1396 (opinion of Chairman Jordan and Commissioner
Marks) (Aug. 1996).

In summary, we agree with the judge's conclusion that the Secretary has met her burden
of proving that it is reasonably likely that the hazards posed by the failure to conduct a complete
preshift in this instance would result in an injury-causing event. We therefore affirm the judge's
S&S determination and related finding that the section 75.360(b)(3) violation was of serious
gravity. (31)

3. Unwarrantable Failure and Negligence

The judge concluded that JWR's failure to ensure that the No. 4 Section was completely
examined before miners were sent to work on the section was indicative of a serious lack of
reasonable care. Id. at 811. The judge found that two supervisors, Puckett and Hagood, were
responsible for miners being knowingly sent down into the mine before it had been completely
preshifted, placing the miners in harm's way. Id. Relying on that same evidence, the judge
found JWR to be highly negligent. Id.

JWR contends that the conduct of neither Puckett nor Hagood justifies the judge's
conclusion that the violation in this instance resulted from JWR's unwarrantable failure. JWR
Br. at 12-13, 14-15; JWR Reply Br. at 16-18. JWR also argues that the judge failed to consider
all the factors germane to this case in reaching his conclusion. JWR Br. at 13-14.

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure
test).

The Commission has recognized that whether conduct is "aggravated" in the context of
unwarrantable failure is determined by considering the facts and circumstances of each case to
determine if any aggravating or mitigating circumstances exist. These factors include the length
of time that the violation existed, the extent of the violative condition, whether the operator has
been placed on notice that greater efforts were necessary for compliance, the operator's efforts in
abating the violative condition, whether the violation was obvious or posed a high degree of
danger, and the operator's knowledge of the existence of the violation. See Consolidation Coal
Co., 22 FMSHRC 340, 353 (Mar. 2000). All of the relevant facts and circumstances of each case
must be examined to determine if an actor's conduct is aggravated, or whether mitigating
circumstances exist. Id.

The Commission is evenly divided regarding whether the judge correctly determined that
the violation of section 75.360(b)(3) was attributable to JWR's unwarrantable failure.
Commissioners Jordan and Young would affirm the determination while Chairman Duffy and
Commissioner Suboleski would reverse. The effect of the split decision is to allow the judge's
decision to stand as if affirmed. See Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (Aug.
1990), aff'd on other grounds, 969 F.2d 1501, 1505 (3d Cir. 1992). The separate opinions of the
Commissioners on this issue are included in Part III below.

D. The Penalty Assessments

The Secretary proposed penalties of $55,000 for each of JWR's violations at issue here. (32)
27 FMSHRC at 812, 826. After finding violations, the judge assessed a penalty of $2,500 for the
section 75.360(b) violation and assessed a penalty of $500 for the section 75.1101-23(c)
violation. Id. The Secretary petitioned for review of both penalty assessments.

The Secretary maintains that the judge erred in drastically reducing the proposed penalties
and failed adequately to explain his reasons for doing so. S. Br. at 33-34, 46. With regard to the
penalty for the violation of section 75.360(b)(3), the Secretary argues that the judge's finding that
the violation did not contribute to the fatalities was not a proper explanation for reducing the
penalty because even if true, it does not detract from the seriousness of the violation. Id. at 36.
The Secretary further alleges that with respect to both assessments, the judge erred by taking into
account a document purporting to show previous penalties that had been assessed against JWR.
Id. at 36-38, 46. In response, JWR contends that the reductions were justified by the judge's
decision to vacate the section 75.360(b)(3) violation in part and his conclusion that the section
75.1101-23(c) violation was neither S&S nor unwarrantable. JWR Resp. Br. at 36, 46-47.

While Commission judges are accorded broad discretion in assessing civil penalties under
the Mine Act, such discretion is not unbounded and must reflect proper consideration of the
penalty criteria set forth in section 110(i) and the deterrent purpose of the Act. (33) Westmoreland
Coal Co., 8 FMSHRC 491, 492 (Apr. 1986) (citing Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984)). In reviewing a judge's penalty
assessment, the Commission determines whether the penalty is supported by substantial evidence
and is consistent with the statutory penalty criteria. Hubb Corp., 22 FMSHRC 606, 609 (May
2000). While "a judge's assessment of a penalty is an exercise of discretion, assessments lacking
record support, infected by plain error, or otherwise constituting an abuse of discretion are not
immune from reversal . . . ." U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984).
Furthermore, as the Commission stated in Sellersburg:

When . . . 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.
If a sufficient explanation for the divergence is not provided, the
credibility of the administrative scheme providing for the increase

or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.

5 FMSHRC at 293; see also Unique Electric, 20 FMSHRC 1119, 1123 & n.4 (Oct. 1998)
(concluding that judge failed to explain the wide divergence between the penalty of $400
assessed and the Secretary's proposed penalties of $8,500); Thunder Basin Coal Co., 19
FMSHRC 1495, 1504 (Sept. 1997) (concluding that judge failed to provide adequate explanation
for 95% reduction in penalty assessed); Dolese Bros. Co., 16 FMSHRC 689, 695 (Apr. 1994)
(finding that the judge was required to explain a 60% increase in his civil penalty assessment).

Clearly, the penalties assessed by the judge in this case "substantially diverge" from those
originally proposed by the Secretary. In setting the penalties, the judge relied upon the parties'
stipulations with respect to four of the six criteria, and incorporated his earlier findings with
respect to the other two criteria, gravity and negligence. See 27 FMSHRC at 812, 826. The
judge also noted that his penalties were consistent with the amounts included on a printout of
JWR's history of violations submitted with the stipulations. Id. at 812 n.58, 826 n.74. He also
noted that the violation of section 75.360(b)(3) did not contribute to the fatalities in this case. Id.
at 812 n.58.

Such a terse analysis is not sufficient to explain the judge's substantial penalty reductions.
Therefore, we vacate and remand the penalty assessments in this case. A more detailed analysis
is particularly needed with respect to the section 75.360(b)(3) violation, in light of the judge's
findings that it was serious and due to high negligence. 27 FMSHRC at 812. (34) While it may not
have necessarily been improper for the judge to have considered the lack of causation between
the preshift violation and the fatalities to be a mitigating factor in assessing the penalty, such a
determination must be made within the context of the gravity of the violation. Moreover, other
factors that potentially lead to a finding of high gravity must be considered; but it appears that the
judge may have permitted the lack of causation to negate his other findings regarding the
seriousness of the violation. Therefore, on remand, the judge should clarify how he views the
lack of causation within the context of the other factors relevant to his finding of high gravity.

On remand, the judge should also clarify the extent to which, in setting both penalties, he
relied upon the dollar amounts appearing as penalties in the stipulated printout of JWR's
previous history of violations. While it was not error for the judge to "note" the equivalency
between the penalties he assessed and those figures, it is impermissible to use those figures to
arrive at the penalties to be assessed in this case. Penalty assessment figures in other cases are
not a factor recognized as relevant by section 110(i) of the Mine Act, 30 U.S.C. § 820(i). The
Commission has consistently ruled that, in assessing penalties, a judge may take into account
only the six criteria listed in section 110(i). See RAG Cumberland Res., LP, 26 FMSHRC 639,
658 (Aug. 2004) (citing cases), aff'd sub nom. Cumberland Coal Res., LP v. FMSHRC, No. 04-1427, 2005 WL 3804997 (D.C. Cir. Nov. 10, 2005) (unpublished).

III.

Separate Opinions of the Commissioners

Commissioner Young, in favor of affirming the judge's determination that JWR's violation of
section 75.360(b)(3) was attributable to its unwarrantable failure:

JWR asserts that Puckett's subsequent examination prevents a finding that JWR's
violation of section 75.360(b)(3) was attributable to its unwarrantable failure. I cannot agree.
The examination occurred well after Puckett's crew began working in or traveling to the area just
outby the unexamined working section of the No. 4 Section. JWR would credit Puckett for
acting with requisite care (JWR Br. at 12-13), but it fails to recognize that it was well within
Puckett's power to examine the working section before the men entered the No. 4 Section, where
they were exposed to the hazards, discussed above, of a work area that had not been completely
examined.

JWR's argument that Hagood was blameless in this instance is similarly unavailing.
JWR Br. at 14; JWR Reply Br. at 16-17. It was Hagood who, as Dye's supervisor, instructed
him to cut short his examination, apparently on the conviction that at that point in time no one
would be working during any part of the next shift on the working section of Section 4 due to the
power outage. As shown earlier, however, the evidence demonstrates that JWR planned for that
work to eventually occur, despite the power outage, and JWR chose not to call Hagood as a
witness to explain the discrepancy.

Section 75.360 requires "mine operators to design preshift examinations around the best
information available at the time the preshift begins" (61 Fed. Reg. at 9793), and it can be
reasonably concluded that Hagood was not using the best information available in supervising
Dye. As discussed, Puckett testified that sometime prior to his arrival at the mine for the
upcoming shift, part of his crew was assigned to work at the face of the No. 4 Section, so he
immediately completed Dye's examination. The Commission has stated that section 75.360(a)
does not authorize such piecemeal examinations of a mine. Buck Creek Coal Co., 17 FMSHRC
8, 12 n.7 (Jan. 1995). The involvement of supervisors Hagood and Puckett in the violation
support the judge's determination that the violation was attributable to JWR's unwarrantable
failure. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (Dec. 1987).

While the judge did not address all of the factors the Commission considers in
determining whether a violation is unwarrantable, this deficiency does not lead to the conclusion
that it is not supported by substantial evidence. To the contrary, other circumstances surrounding
the violation, when considered in light of the requirements of section 75.360, provide additional
substantial evidence in support of the judge's determination that the violation was
unwarrantable. (35)

As the Commission discussed with respect to upholding the judge's S&S determination,
the violation posed a high degree of danger in this particular instance. Undisputed evidence
established that this is one of the gassiest mines in the nation. Tr. IX 16. There is also ample
record evidence of ignitions and roof falls occurring in and around the unexamined area
contemporaneous to the time in question. In short, this mine was plagued with the sorts of per se
deadly hazards which the pre-shift examination is intended to combat. This degree of danger
significantly reduces the threshold for finding, in this context, a serious lack of reasonable care
on JWR's part. See Midwest Material Co., 19 FMSRHRC 30, 34 (Jan. 1997).

The extent of the violation was also significant. The entire working section of the No. 4
Section was not inspected as part of Dye's preshift examination, so Puckett had to complete it
upon arriving at the No. 4 Section. Tr. IV 200-05. The violation can also be considered
extensive because at least eight miners (Puckett's entire crew) entered the No. 4 Section before it
was completely preshifted. Moreover, as discussed, the exposure of the miners was not
momentary, but continued until Puckett completed his examination of the area inby the power
center. In addition, any claim by JWR that the violation was not obvious or that it did not know
of the existence of the violation runs counter to Buck Creek, where the Commission warned
operators they could not rely upon the supplemental examination provisions of section 75.361 to
complete preshift examinations that should have been previously completed.

Accordingly, I would find that substantial evidence supports the judge's determination
that the violation of section 75.360(b)(3) was attributable to JWR's unwarrantable failure, as well
as his conclusion for penalty assessment purposes that JWR was highly negligent, and affirm
both findings.

---

Michael G. Young, Commissioner

Commissioner Jordan, concurring in part and dissenting in part:

I agree with the Commission opinion in this matter, except with regard to the violation of
30 C.F.R. § 75.1101-23(a). (36)
In its discussion of that violation, the majority correctly affirms the
judge's ruling that the regulation governing JWR's Fire Fighting and Evacuation Plan (the
"FFEP"), 30 C.F.R. § 75.1101-23(a) (2001), applied to explosion-related emergencies. Slip op.
at 8-11. However, unlike my colleagues, I would also hold that the FFEP itself applied to all
emergencies, and was not limited to evacuations due to fires. Consequently, I would reverse the
judge's determination on this question, and remand the issue to him for further proceedings.

The threshold issue in this matter is to identify the method we will use to interpret the
plan provision in question. As we recently noted, "[i]t is well established that plan provisions are
enforceable as mandatory standards." Martin County Coal Corp., 28 FMSHRC 247, 254-55
(May 2006) (citing UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989)); Zeigler Coal Co. v.
Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Energy West Mining Co., 17 FMSHRC 1313, 1317
(Aug. 1995); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987) ("JWR"). Consequently, as
discussed in greater detail below, we should apply the same tools of regulatory construction when
interpreting plan provisions as we do when construing regulations promulgated by MSHA.
Because we are treating both as mandatory standards, we should discern their meaning in a
consistent manner.

Commission precedent providing guidance on regulatory interpretation is clear; where
the language of a regulatory provision is plain, the terms of that provision must be enforced as
they are written unless the regulator clearly intended the words to have a different meaning or
unless such a meaning would lead to absurd results. See Dyer v. United States, 832 F.2d 1062,
1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). If, however, a standard is
ambiguous, courts have deferred to the Secretary's reasonable interpretation of the regulation.
See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994). The Secretary's
interpretation of a regulation is reasonable where it is "logically consistent with the language of
the regulation and . . . serves a permissible regulatory function." Gen. Elec. Co. v. EPA, 53 F.3d
1324, 1327 (D.C. Cir. 1995) (citation omitted). The Commission's review, like the courts',
involves an examination of whether the Secretary's interpretation is reasonable. See Energy
West, 40 F.3d at 463 (citing Sec'y of Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 1435, 1439
(D.C. Cir. 1989)); see also Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992)
(examining whether Secretary's interpretation was reasonable).

Because the plan provision at issue is ambiguous (as it does not clearly state whether it
applies to explosions), I would apply the standard set forth above and determine whether the
Secretary's interpretation of the plan -- i.e., that it applies to explosions -- is reasonable and
should be accorded deference. In contrast, my colleagues, holding that JWR's plan was limited
to fire-related events, decline to apply our longstanding rules of regulatory interpretation to plan
provisions. Relying on the 1987 JWR opinion, they require the Secretary to "'dispel the
ambiguity'" in the plan "by establishing the intent of the parties on the issue." Slip op. at 11
(citation omitted). (37) They hold that the citation cannot stand because the Secretary failed to
present evidence regarding the parties' understanding as to what the operator's obligations to
initiate an evacuation were under the FFEP. Id. at 11-12. They reach this conclusion despite
agreeing with the judge that the parties did not appear to have considered how the plan applied in
the event of an explosion. Id. at 12. Thus, they fault the Secretary for failing to produce
evidence on the parties' intent when they acknowledge that the parties did not even consider the
question.

Given the fact that underground mine operators are required to adopt many plans
containing numerous provisions, (38) it is unlikely that extensive negotiations will take place
regarding all aspects of every plan approved by MSHA. Accordingly, in many instances it would
be impossible for the Secretary to produce the evidence the majority insists it offer here:
"establish[ ] through testimony of those involved in drafting and approving the FFEP, the intent
of the Secretary or JWR with respect to JWR's evacuation obligations under the plan after an
explosion." Slip op. at 11-12. This would be especially true for plans approved on a routine
basis, without discussion or debate.

My colleagues' approach has the effect of limiting the agency's ability to enforce plan
provisions to only those situations where the agency can demonstrate that both negotiation and a
meeting of the minds occurred. This view, however, is contrary to C.W. Mining Co., 18
FMSHRC 1740, 1746-47 (Oct. 1996), which recognized the Secretary has the ultimate say in
whether a plan provision is included. In that case, we stated that although "[t]he plan approval
process involves good faith discussions between MSHA and the mine operator," we did not
mean to suggest:

that the Secretary is in the same position as a private party
conducting arm's length negotiations in a free market. Ultimately,
absent bad faith or arbitrary action, the Secretary retains the
discretion to insist upon the inclusion of specific provisions as a
condition of the plan's approval.

Id. at 1746 (citing UMWA v. Dole, 870 F.2d at 667). Quoting the decision of the D.C. Circuit in
UMWA v. Dole, the Commission in C.W. Mining recognized that:

[W]hile the mine operator had a role to play in developing plan
contents, MSHA always retained final responsibility for deciding
what had to be included in the plan. In 1977 Congress
"caution[ed] that while the operator proposes a plan and is entitled,
as are the miners and representatives of miners to further
consultation with the Secretary over revisions, the Secretary must
independently exercise [her] judgment with respect to the content
of such plans in connection with his final approval of the plan."

18 FMSHRC at 1746 (quoting UMWA v. Dole, 870 F.2d at 669 n.10, quoting S. Rep. No. 181,
95th Cong., 1st Sess. 25 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 613 (1978)).

When a mandatory standard is promulgated under the Mine Act, the Secretary notifies the
mining community of a proposed requirement, considers the comments filed in response, and
then exercises her judgement as to what the final content of the regulation should be. Similarly,
while the operator can propose plan provisions and may be entitled to further consultation over
revisions, the Secretary must "'independently exercise [her] judgment with respect to the content
of such plans'" and "always retain[s] final responsibility for deciding what [has] to be included in
the plan.'" UMWA v. Dole, 870 F.2d at 669 n.10 (citation omitted). Therefore, I fail to see how
the Secretary can be held to a more difficult standard of proof when attempting to enforce a plan
provision than the standard she must meet to enforce a regulation that is the result of notice and
comment rulemaking.

In fact, the Commission has stated recently that the Secretary is not held to two different
standards of proof. In Martin County Coal, we explained:

It is well established that plan provisions are enforceable as
mandatory standards. As such, the law governing the
interpretations of regulatory standards is applicable to plan
provisions. Energy West, 17 FMSHRC at 1317.

28 FMSHRC at 254-55 (other citations omitted). Martin County relied on Energy West, which
had applied controlling Commission case law on regulatory interpretation to the interpretation of
a ventilation plan. 28 FMSHRC at 255 n.11 (citing Energy West, 17 FMSHRC at 1317). In
Energy West we concluded that the disputed plan provision was unclear, and that accordingly a
remand was necessary to determine whether the Secretary's interpretation of the provision was
reasonable, noting that "[a]n agency's reasonable interpretation of its regulations is entitled to
deference." 17 FMSHRC at 1317 & n.6 (citation omitted).

Applying the legal standard we traditionally use to interpret mandatory standards, I find
that the Secretary's interpretation -- that JWR's Firefighting and Evacuation Plan applied to
evacuations prompted by explosions -- is reasonable. The relevant plan provision stated that
"[a] supervisor or designated person will assemble all men promptly and lead the way during the
evacuation." FFEP at 3. That provision appeared under a general heading in the FFEP that
stated "Program of Instruction - Underground Emergencies." Id. Section II of the plan, where
this requirement was located, was entitled "Location of Escapeways, Exits and Routes of Travel
to the Surface and Evacuation Procedures." Id. (39) Significantly, the language of the FFEP is not
expressly limited to fire-related incidents.

The Secretary's interpretation of the plan provision -- that it applies to explosions -- is
clearly consistent with the purpose of section 75.1101-23(a), which governed emergency plans.
This regulation required in pertinent part that an operator was to adopt a program to instruct all
miners:

in the location and use of fire fighting equipment, location of
escapeways, exits, and routes of travel to the surface, and proper
evacuation procedures to be followed in the event of an emergency.

30 C.F.R. § 75.1101-23(a) (2001). I find it notable that the governing regulation required plans
for evacuations due to an "emergency," and was not limited to a fire-related emergency. (40) I also
note that, prior to the explosion, MSHA had announced that it required "each operator of an
underground coal mine to adopt a program for mine evacuation in the event of an emergency,
such as fire or explosion." 60 Fed. Reg. 23567 (May 8, 1995) (MSHA Semi-Annual Unified
Agenda) (emphasis added). (41)

Moreover, safety issues involving fires and explosions are often interrelated. Although
the judge ultimately concluded that the plan did not apply to this evacuation, in his order denying
JWR's motion for summary decision he stated:

I find JWR's attempt to differentiate between a fire and an
explosion to be a distinction without difference. I concur with the
Secretary's statement that "explosions and fires are similar in
nature and present similar hazards to miners underground." I agree
with the Secretary that "it is reasonable to anticipate that a fire
could create an explosion risk and an explosion could create a fire
risk." This is because fires and explosions are fundamentally
interrelated. . . . These two events are so intertwined, I conclude it
is eminently reasonable to view the "emergency" referred to in the
standard as inclusive of an explosion. In other words, it is
reasonable to apply the standard to both occurrences.

26 FMSHRC 623, 627-28 (July 2004) (ALJ) (citations omitted). (42) Consistent with this view, I
note that section 311 of the Mine Act, 30 U.S.C. § 871, entitled "Fire Protections," also contains
a requirement pertaining to explosions, as it restricts the amount of methane that may be present
during welding activities. 30 U.S.C. § 871(d); see also 30 C.F.R. § 75.1106.

The final inquiry regarding this citation is whether the operator violated the provision of
the plan requiring that a supervisor or other designated person "assemble and lead" miners during
an evacuation. The judge's decision barely touched upon this issue (see 27 FMSHRC 757, 817
n.66 (Nov. 2005) (ALJ)), and JWR has argued that the actions of the miners who did not vacate
the mine but instead traveled towards the area of the first explosion did not necessarily do so in
contravention of the FFEP. See JWR Resp. Br. at 31-34. Resolution of such issues are best left
to the judge in the first instance, and, accordingly, I would remand this question to him.

For the foregoing reasons, I would vacate and remand the judge's determination that JWR
did not violate section 75.1101-23(a).

---

Mary Lu Jordan, Commissioner

Commissioner Suboleski, concurring and dissenting:

I concur with my colleagues that JWR violated section 75.360(b) when it failed to
adequately preshift the Number 4 section for the September 23 day shift. However, I depart with
them in affirming the judge that the violation was significant and substantial ("S&S") and
occurred because of JWR's unwarrantable failure to comply with the regulation.

1. Significant and Substantial

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).

Here, as in many cases where the S&S determination is challenged, it is the application of
the third Mathies element that is at issue. "[T]he question [of whether the violation is S&S] must
be resolved on the basis of the circumstances as they existed at the time the violation was cited
and as they might have existed had normal mining operations continued." U.S. Steel Mining Co.,
7 FMSHRC 1125, 1130 (Aug. 1985). The Commission added that the operator's response in
abating the citation does not obviate the need to determine "whether an injury would have been
reasonably likely to occur if mining operations had continued without the inspector's
intervention." Id. (citation omitted) (emphasis added); see also Rushton Mining Co., 11
FMSHRC 1432, 1435 (Aug. 1989). In the present proceeding, the violation stands in contrast to
the S&S cases that have generally come before the Commission because the order was issued
"after the fact," over one year after an accident investigation that was triggered by the tragic, but
unrelated, explosions. Gov't Ex. 7.

Section 75.360(b)(3) requires that a preshift examination be conducted in "[w]orking
sections and areas where mechanized mining equipment is being installed or removed, if anyone
is scheduled to work on the section or in the area during the oncoming shift[,]" and further states
that "[t]he scope of the examination shall include the working places." 30 C.F.R. § 75.360(b)(3).
Section 75.2 defines "working section" as, "All areas of the coal mine from the loading point of
the section to and including the working faces." 30 C.F.R. § 75.2. "Working place" is further
defined as, "The area of a coal mine inby the last open crosscut." Id.

The definitions in section 75.2, when read in conjunction with section 75.360(b)(3), make
clear that the preshift examination requirement applies to specific areas of the mine, depending
on their location and miner presence. Any remaining doubt about the carefully circumscribed
nature of section 75.360(b)(3) can be resolved by the Federal Register preamble to this rule.
There, the Secretary explained, in rejecting a commenter's suggestion that all areas of the mine,
including idle areas, be examined during a preshift examination, "There is no need to require
areas of the mine where persons are not scheduled to work or travel to be examined." 57 Fed.
Reg. 20868, 20893 (May 15, 1992); see also 61 Fed. Reg. 9764, 9793 (Mar. 11, 1996) ("The
preshift examination requirements in the final rule are intended to focus the attention of the
examiner in critical areas."). As more fully explained below, the violation here turns on whether
work was scheduled in the working section of the No. 4 Section when Dye was instructed to
conduct the preshift examination on September 28.

The order charges JWR with a violation of section 75.360(b)(3) because:

an adequate preshift examination was not conducted in 4 Section where
persons were scheduled to perform maintenance work and install roof
bolts during the oncoming day shift on September 23, 2001. The
examination was incomplete in that an examination of the working places
was not conducted where miners were scheduled to roof bolt the
unsupported face areas.

Gov't Ex. 7 at 1. (43) The theory of violation of section 75.360(b)(3) is that miners were scheduled
to work at a particular location within the No. 4 Section that was not examined when Dye
conducted his preshift examination. 27 FMSHRC at 807, citing S. Br. at 63-64. As the judge
stated, "[I]f anyone was 'scheduled to work on the section' prior to Dye's examination, the
standard was violated." 27 FMSHRC at 808. In short, the essence of the violation is the
inadequacy of the preshift examination. See S. Resp. Br. at 11.

Were it not for the scheduling of maintenance in the No. 4 working section, prior to
Dye's examination, there would be no violation. Thus, a bookkeeping entry that occurred prior
to the Sunday day-shift determined whether JWR is found to have violated the regulation. Due
to the strict liability nature of the Mine Act, once Dye performed an examination of the No. 4
Section that did not include the areas where miners were scheduled to roof bolt and do other
maintenance work, the violation of section 75.360(b)(3) was complete. Once the day shift had
begun, neither Dye nor Puckett could undo the violation

In analyzing the S&S designation, the judge reasoned:

Given the propensity of the mine to liberate methane, and the fact
that electric and diesel equipment was in place and that the power
would have been restored had normal operations continued, I find
that it was reasonably likely the failure to conduct a complete
preshift examination significantly and substantially contributed to
the danger of the miners being involved in a methane-related
ignition or explosion.

27 FMSHRC at 810 (emphasis added). However, contrary to the judge's analysis, we do not
have to guess as to what occurred after the violation. There was no intervening action by an
inspector that requires the application of the legal fiction, "assuming continued normal mining
operations." Rather, the record clearly shows that, when Puckett took his crew into the mine, he
proceeded no further than the power center and other outby areas that had been preshifted. He
then performed a supplemental examination in unexamined areas of the No. 4 Section before
miners proceeded further. (44) 27 FMSHRC at 807. The judge's analysis cannot be sustained in
light of the undisputed testimony as to what actually occurred after Dye inadequately preshifted
the area in violation of section 75.360(b)(3). (45)

The only "hazard" that the miners were exposed to by their presence in areas of the mine
that had been preshifted was the same conditions that miners would have been exposed to if no
work had been scheduled in the working areas of the No. 4 Section. (46) Thus, I cannot conclude,
based on the particular facts surrounding the violation (Texasgulf, Inc., 10 FMSHRC 498, 501
(Apr. 1988)), that there was a reasonable likelihood that the hazard contributed by the violation
would result in an injury. (47)

In an effort to sustain the S&S designation, the majority transforms the order MSHA
issued from one charging a violation of section 75.360(b)(3) to one charging a violation of
section 75.360(a)(1), which provides, in part, "No person other than certified examiners may
enter or remain in any underground area unless a preshift examination has been completed for the
established 8-hour interval." 30 C.F.R. § 75.360(a)(1). See slip op. at 24-25. However, the
majority's effort to explain "the duration of the violation," slip op. at 24, is simply contrary to the
language of the order, which is set out on page 39, supra, and the Secretary's theory of violation
before the Commission. S. Resp. Br. at 11-24. It is also evident from the majority's analysis of
the violation of section 75.360(b)(3), in which I concur, that Puckett and the miners who
accompanied him were not in a "working section" or a "working place" and were in an area of
the No. 4 Section that had been properly examined. Thus, the majority's attempt to expansively
apply the narrowly drafted section 75.360(b)(3) to prohibit miners from going into any area of
the No. 5 mine until the entire No. 4 Section had been examined, slip op. at 24-25, is contrary to
the plain language of the regulation and its regulatory history. (48)

Finally, the majority relies on Buck Creek Coal Co., Inc., 17 FMSHRC 8 (Jan. 1995), to
support its S&S determination. However, that case is readily distinguishable in several key
aspects. First, at Buck Creek the mine had been idle for the weekend and the examiners had
begun the required preshift examination prior to the first working shift. Id. at 9. The violation
occurred when miners entered the mine while the preshift examination was ongoing, that is,
before the examiners had completed their inspection. Id. Here, there is no allegation that the
miners entered an unexamined mine; the charge is that the preshift examination, which had been
completed, was, on one section only, inadequate.

Second, in Buck Creek the Commission concluded that the operator violated section
75.360(a) when it allowed, prior to an oncoming shift, miners into an area of the mine before a
preshift examination had been completed. Id. at 9-11. In contrast, the violation in this case
stems from the inadequacy of the preshift examination, not from the presence of the Puckett's
crew at the electrical center in the No. 4 Section. MSHA does not allege that a violation of
section 75.360(a) occurred. (49) Most significantly, in Buck Creek the operator had shut down the
mine over a weekend, thus giving rise to the dangers attendant to an idle mine. Id. at 14. Here,
JWR scheduled a maintenance crew to work on the day shift following an owl shift in ongoing
operations. Thus, I cannot agree that Buck Creek is applicable to the facts of this case.

In summary, in the absence of any allegation that JWR's action was an effort to subvert
the preshifting requirements, and given that the only difference between the occurrence of a
violation or not is whether, midway through the midnight shift, the work continued to be
scheduled, I am unable to find the violation to be S&S. If work was not scheduled in the No. 4
Section at that time, there is no violation; if it was scheduled, there is a violation. When the only
difference between what is or is not a violation is a "yes" or "no" on a written schedule or in the
thoughts of a foreman, then a discrete safety hazard reasonably likely to contribute to a
reasonably serious injury simply cannot be found.

2. Unwarrantable Failure

I would also reverse the judge with regard to his unwarrantability determination. The
unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d),
and refers to more serious conduct by an operator in connection with a violation. In Emery
Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable
failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v.
MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).

The judge's unwarrantability determination is brief but premised on the incorrect finding
made in the judge's S&S determination that the power center was in an uninspected area of the
No. 4 Section. 27 FMSHRC at 810-11. The judge's unwarrantable failure analysis turns on
Puckett's conduct and having "plac[ed] miners on the section and thus in harm's way before the
preshift examination was completed." Id. at 811. Thus, the judge erred as a matter of law when
he relied on this crucial erroneous factual finding. I further conclude that largely uncontroverted
record testimony supports only one conclusion on this issue -- that the violation of section
75.360(b)(3) was not due to JWR's unwarrantable failure.

The Commission has recognized that a number of factors are relevant in determining
whether a violation is the result of an operator's failure, such as the extensiveness of the violative
condition, the length of time that the violative condition has existed, the operator's efforts to
eliminate the violative condition, and whether an operator has been placed on notice that greater
efforts are necessary for compliance. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). The Commission also
considers whether the violative condition is obvious , or poses a high degree of danger.
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug.1992) (finding unwarrantable failure
where unsaddled beams "presented a danger" to miners entering area); Warren Steen Constr.,
Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding violation aggravated and unwarrantable based
on "common knowledge that power lines are hazardous, and . . . that precautions are required
when working near power lines with heavy equipment"); Quinland Coals, Inc., 10 FMSHRC
705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984) (conspicuous
nature of the violative condition supports unwarrantable failure finding).

The violation occurred here when Dye failed to examine all areas in the No. 4 Section.
Based on the record testimony, it is apparent that Dye's failure to examine all areas of the No. 4
Section, including those areas where maintenance work was scheduled but had no power, was of
short duration. There are no allegations that any similar violations had occurred elsewhere in the
mine. (50) Thus, there is no charge that JWR was on notice that greater efforts were necessary to
avoid violations of the preshift examination requirement. (51) Further, Puckett quickly remedied
Dye's failure to completely preshift the No. 4 Section by performing a supplemental examination
prior to permitting his crew to go beyond the electrical center. Compare Enlow Fork Mining Co.,
19 FMSHRC at 17 (Commission rejected assertion that prompt post-citation efforts to abate
violation should be considered in an unwarrantable failure determination, noting that focus is on
compliance efforts prior to the issuance of citation).

Most significantly, the violation did not pose a high degree of danger to miners. As noted
above, JWR violated section 75.360(b)(3) when Dye failed to preshift the No. 4 Section in its
entirety when work was scheduled to be performed there on the next shift. The violation did not
turn on the presence of miners at the electrical center. Instead, the focus of consideration is
Dye's conduct and the conditions at the time of the violation. See Quinland Coals, Inc., 10
FMSHRC at 708-09. Given that the violation stemmed from the advanced planning of work in
the No. 4 Section, I cannot conclude that the dangers arising from Dye's inadequate preshift
examination were materially different, indeed not at all different, from those conditions that
would have been present if no work had been scheduled. (52)

Finally, I cannot conclude that JWR's actions can be characterized as caused by "reckless
disregard" or "intentional misconduct." In this regard, Dye conducted his preshift examination at
a time when power was down in the No. 4 Section, and he assumed that, if power was not
restored, no maintenance work would be performed in the section. Tr. III 447-48. The preamble
to section 75.360(b)(3) contemplates this sort of exigent circumstance to relieve operators of the
obligation to preshift areas where miners would otherwise be scheduled to work:

Preshift examinations, by their nature, must be completed before the start of the shift. Changes in conditions, however, such as a
breakdown of equipment, can alter planned work schedules. To
accommodate these circumstances, the final rule requires mine
operators to design preshift examinations around the best
information available at the time the preshift begins. If changes
must be made, § 75.361 specifies that areas not preshift examined
be covered by a supplemental examination . . . before miners enter
the area.

61 Fed. Reg. at 9793. While I have affirmed a violation of the regulation, because substantial,
though circumstantial, evidence supports the judge's conclusion that JWR had not rescheduled
when the preshift was conducted, 27 FMSHRC at 808, nevertheless I cannot conclude that
JWR's conduct was indicative of reckless disregard in light of the lack of danger and the
mitigating circumstance of the power outage. See Cougar Coal Co, 25 FMSHRC at 518-19

In sum, I cannot conclude that JWR's violation of section 75.360(b)(3) was due its
unwarrantable failure.

---

Stanley C. Suboleski, Commissioner

Chairman Duffy, concurring and dissenting:

While I find that JWR violated the preshift examination requirement in section 75.360(b)
and that the violation was significant and substantial in nature, I join with Commissioner
Suboleski in finding that the violation was not caused by JWR's unwarrantable failure to comply
with the standard.

The key to the degree of culpability attributable to JWR with respect to this violation is
the motivation of Hagood in directing Dye not to preshift beyond the power center in the No. 4
section. The problem is that Hagood did not testify, so we can only speculate as to that
motivation.

Preshift examinations, by their nature, must be completed before
the start of the shift. Changes in conditions, however, such as a
breakdown in equipment, can alter planned work schedules. To
accommodate these circumstances, the final rule requires mine
operators to design preshift examinations around the best
information available at the time the preshift begins.

Preamble to section 75.360, 61 Fed. Reg. at 9793 (emphasis added).

It may well be that Hagood believed at the time he spoke to Dye that the power outage
would preclude any work being performed inby the power center during the day shift, thus
making a preshift of that area unnecessary. On the other hand, he may have decided to take a
chance on avoiding a full preshift on the premise that the unexamined areas could be picked up
on a supplemental examination. Without his testimony, we simply do not know his state of mind
at the time the preshift began. The lack of this crucial evidence precludes, in my view, a finding
of unwarrantable failure.

Likewise, I agree with Commissioner Suboleski that the judge's finding may have been
colored by his erroneous view that the miners were permitted to enter an area of Section No. 4
that had not been preshifted. If that were the case, the violation might well be characterized as
unwarrantable. Since that was not the case, however, I do not believe that JWR's conduct rises to
the level of "reckless disregard," intentional misconduct," indifference," or a "serious lack of
reasonable care." Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (Dec. 1987).

---

Michael F. Duffy, Chairman

Distribution

Robin A. Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor West

Arlington, VA 22209-2247

Timothy M. Biddle, Esq.

Thomas C. Means, Esq.

Bridget E. Littlefield, Esq.

Crowell & Moring, LLP

1001 Pennsylvania Ave., N.W.

Washington, D.C. 20004-2595

David M. Smith, Esq.

Maynard, Cooper & Gale, P.C.

1901 Sixth Avenue North, Suite 2400

Birmingham, AL 35203

Judith Rivlin, Esq.

United Mine Workers of America

8315 Lee Highway

Fairfax, VA 22031

Administrative Law Judge David F. Barbour

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20001-2021

1. Electrical power did not return to the section during the shift to allow work to be done at the face. As a result, the alternative assignments occupied the miners on the No. 4 Section for almost the entire shift. Tr. IV 206-07; Gov't Ex. 10 at 5.

2. Initially, the order also alleged that during the preshift examination, Dye failed to identify that the section of the mine he inspected was inadequately rock dusted. Gov't Ex. 7 at 2. The judge dismissed that portion of the order, and it has not been appealed.

3. We describe herein only those portions of the judge's decision that are before us on appeal. We do not attempt to summarize the judge's analysis of his dismissal of the alleged violations relating to inadequate roof support and rock dusting because that analysis has no
   bearing on the issues presently before the Commission.

4. Initially by emergency temporary standard ("ETS") (see 67 Fed. Reg. 76,658 (Dec. 12, 2002)), and later in a final rule (see 68 Fed Reg. 53,037 (Sept. 9, 2003)), due in part to the two explosions in this case (68 Fed. Reg. at 53,038), MSHA moved section 75.1101-23 to the renamed "Subpart P-Mine Emergencies." In Subpart P, new 30 C.F.R. § 75.1501 requires
   operators to designate, for each shift that miners are underground, a responsible person who will
   take charge during mine emergencies involving a fire or explosion or gas or water inundation,
   and obligates that person to initiate and conduct an immediate mine evacuation when such
   emergencies present an imminent danger to miners. New 30 C.F.R. § 75.1502 amends former
   section 75.1101-23 by, among other things, adding a requirement that operators adopt and follow
   a mine emergency and firefighting program.

5. JWR would also have the Commission read "emergency" in section 75.1101-23(a) to refer to only a fire emergency because the regulation appeared in Subpart L, entitled "Fire
   Protection," whereas MSHA regulations elsewhere addressed emergency situations in general.
   JWR Resp. Br. at 3-6. We do not read Subpart L as narrowly as JWR does and further note that
   the emergency-related regulations JWR cites are located throughout Part 75 and were not
   confined to any one subpart. Indeed, the Secretary had previously published a description of the
   regulation as being one that required an operator to "adopt a program for mine evacuation in the
   event of an emergency, such as fire or explosion." 60 Fed. Reg. 23,567 (May 8, 1995) (MSHA
   Semi-Annual Unified Agenda) (emphasis added).

6. The legislative history of the Mine Act states:

[I]n addition to mandatory standards applicable to all operators,
operators are also subject to the requirement set out in the various
mine by mine compliance plans required by statute or regulation.
The requirements of these plans are enforceable as if they were
mandatory standards. . . . The Committee notes with approval that
individual mine plan adoption and implementation procedures have
been sustained by the federal Court of Appeals for the District of
Columbia circuit (Ziegler Coal Company v. [Kleppe], 536 F.2d
398 (1976)). Thus, the Committee fully expects the individual
mine plan technique to continue to be utilized by the Secretary in
appropriate circumstances.

S. Rep. No. 95-181 at 25 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human
Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 613 (1978)
("Legis. Hist.") (emphasis added).

7. Commissioner Jordan dissents from her colleagues' decision in this part (Sec. II.A.2).
   See slip op. at 32-37.

8. As an alternative to applying the JWR standard of review to the FFEP, the Secretary
   urges the Commission to defer to any reasonable interpretation she offers of an ambiguous plan
   or provision of a plan, citing as authority the Commission's decision in Energy West Mining Co.,
   17 FMSHRC 1313, 1317 (Aug. 1995). S. Br. 14-15. Subsequent case law demonstrates that
   Energy West did not alter the JWR standard of review with respect to ambiguous plan provisions.
   See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1280 (Dec. 1998) ("[w]hen a plan
   provision is ambiguous, the Secretary may establish the meaning intended by the parties by
   presenting credible evidence as to the history and purpose of the provision, or evidence of
   consistent enforcement.").

9. We agree with the judge that the FFEP was poorly drafted and is confusing. See 27
   FMSHRC at 821 & n.70. For example, it was divided into five sections, but some of the section
   numbers were repeated, and the titles given to the sections do not necessarily accurately describe
   their substance. The "assemble and lead" provision is contained in the second Section II in the
   document (FFEP at 2-3), and inexplicably uses the term "the evacuation" despite there being no
   previous reference to the need to evacuate.

10. The Secretary attempts to raise one final argument, contending that an evacuation was,
    in fact, occurring after the first explosion, but that JWR failed to adhere to the assemble and lead
    provision in carrying out the evacuation, and thus violated the FFEP. S. Br. at 21-33. The claim
    that an evacuation was occurring, which is based solely on the testimony of two JWR employees
    regarding what they believed occurred underground (S. Br. at 21-22 (citing Tr. V 382-83, XII
    223-24, 265)), contradicts the underlying order and is inconsistent with the Secretary's theory of
    the case below. See, e.g., Order No. 7328082 (alleging violation when "[m]iners were not
    evacuated from the mine after an explosion damaged critical ventilation controls.") Gov't Ex. 2
    (emphasis added). To the extent the Secretary's argument could be viewed as an alternative
    theory of the violation, it is one that the judge never had an opportunity to address. The issue has
    therefore not been adequately preserved for review under the Mine Act, and we decline to
    consider it. See 30 U.S.C. §113(d)(2)(A)(iii) ("[e]xcept for good cause shown, no assignment of
    error by any party shall rely on any question of fact or law upon which the administrative law
    judge had not been afforded an opportunity to pass); see also Commission Procedural Rule 70(d),
    29 C.F.R. § 2700.70(d).

11. At trial, copies of fire and emergency response training records for many JWR miners
    were submitted, and miners and JWR officials testified that such training included periodic
    escapeway walks, hands-on training and demonstration of fire fighting equipment, safety
    meetings, group discussions, role playing and putting out mock fires, using a self-contained self-rescuer ("SCSR"), instruction on the danger of methane, and first aid training. See 27 FMSHRC
    at 823, 825 & n.73. The Secretary, however, noted an absence of documentation establishing
    participation by many miners. Gov't Ex. 4, 4A.

12. The Secretary did not appeal the judge's unwarrantable failure determination.

13. Contrary to JWR's position, the Commission's decision in Southwestern does not
    foreclose interpreting section 75.1101-23(c) to find that JWR violated the standard here because
    not "all" miners were found to have participated in the required fire drills. In Southwestern, the
    Commission held that the requirement of 30 C.F.R. § 77.1710(g) that each miner wear a safety
    belt and line did not make an operator a guarantor that miners would do so, but instead only
    obliged operators to require miners to wear such equipment. 5 FMSHRC at 1675. However, the
    Commission pointedly stated that its holding was limited to the language of section 77.1710(g).
    Id. The obligation imposed upon JWR to require that "all" miners participate in fire drills is
    distinguishable from the operator's obligation at issue in Southwestern because, among other
    things, JWR was in complete control of the scheduling and documentation of those exercises.

14. When reviewing an administrative law judge's factual determinations, the Commission
    is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
    § 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
    mind might accept as adequate to support [the judge's] conclusion.'" Rochester & Pittsburgh
    Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
    U.S. 197, 229 (1938)). Under the substantial evidence test, in reviewing the whole record, an
    appellate tribunal must consider anything in the record that "fairly detracts" from the weight of
    the evidence that supports a challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5
    (Jan. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

15. JWR Ex. 146 (excerpt of V MSHA, U.S. Dep't of Labor, Program Policy Manual,
    Part 75, at 105-06 (1994)).

16. Significantly, the title for this part of the PPM was limited to include only "75.1101-23(a) and (b)." The title thus generally indicates that the guidance to be provided by the PPM
    was restricted to those first two subsections of section 75.1101-23, and was not directed at the
    third and final subsection, (c), which JWR is alleged to have violated here.

17. The Secretary does not explain why, if compliance with section 75.1101-23(c) were so
    critically important, MSHA's inspectors previously failed to check JWR's records to ensure
    simulations were conducted quarterly for all miners. JWR Ex. 203 at 59.

18. Citing the decision in Buck Creek, 52 F.3d at 133, the Secretary argues that it was
    improper for the judge to consider in his S&S analysis that miners had received firefighting
    training under other standards. See S. Br. at 42. However, nothing in the court's decision
    precludes the judge from considering that JWR miners had much of the same training that they
    would have received if JWR had conducted quarterly fire drills. See Buck Creek, 52 F.3d at 136
    (fact that operator had in place firefighting measures required by MSHA regulation simply
    indicates "the significant dangers associated with coal mine fires").

19. Initially the order also alleged that during the pre-shift examination Albert Dye failed
    to identify that the section was inadequately rock dusted. The judge dismissed that portion of the
    order, and the Secretary did not appeal that ruling.

20. We thus need not address whether the judge was correct in concluding that the work
    had been scheduled as early as the previous Thursday.

21. Puckett also testified that when a preshift examiner did not know where miners would
    be assigned to work, the examiner would frequently limit the preshift to "the power center areas,
    any place that power is going to be restored." 27 FMSHRC at 807 (quoting Tr. IV 131).

22. JWR faults the Secretary for not calling Hagood to testify. JWR Reply Br. at 3-4.
    However, because all of the other evidence tends to show work was "scheduled" in the working
    section of the No. 4 Section, it was incumbent upon JWR to better explain, through Hagood,
    why, at the time Dye conducted the incomplete preshift, Hagood believed such work would not
    take place during the oncoming shift. The record establishes that the Secretary met her burden of
    proof with respect to the scheduling issue, and JWR failed to present sufficient evidence
    rebutting the Secretary's case.

23. Section 75.361(a) states that:

(a) Except for certified persons conducting examinations
required by this subpart, within 3 hours before anyone enters an
area in which a preshift examination has not been made for that
shift, a certified person shall examine the area for hazardous
conditions, determine whether the air is traveling in its proper
direction and at its normal volume, and test for methane and
oxygen deficiency.

30 C.F.R. § 75.361(a) (emphasis added).

24. Contrary to JWR's assertion (JWR Reply Br. at 7-8), our holding in Buck Creek has
    not been voided by the subsequent amendment to certain subsections of section 75.360(b), as
    only sections 75.360(b)(1) and 75.360(b)(10), and not section 75.360(b)(3), were amended. 61
    Fed. Reg. at 9793, 9796.

25. Commissioner Suboleski dissents from his colleagues' decision in this part. See slip
    op. at 38-45.

26. In general, we agree with JWR that the judge misunderstood exactly where on the No.
    4 Section the four members of Puckett's crew traveled to and waited during Puckett's
    examination of the area inby the power center. While the judge was correct in describing the
    power center to have been located "well inby the mouth of the section" (it was over five
    crosscuts inby), it appears the judge did not realize that the power center was nevertheless not
    located within the working section of the mine. The power center was slightly outby the loading
    point for the section at that time, given that the belt had been recently extended inby the second
    crosscut outby the face. 27 FMSHRC at 760; Gov't Exs. 16, 83C, 83D. Thus, contrary to the
    judge's finding, Puckett's testimony did not establish that the four miners had accompanied
    Puckett to the unexamined working section. See 27 FMSHRC at 810. The power center and the
    area outby had been preshifted by Dye during his earlier examination. Nonetheless, the judge's
    misunderstanding on this point does not invalidate his S&S analysis. See U.S. Steel Mining Co.,
    6 FMSHRC 2305, 2310 n.7 (Oct. 1984) (finding error judge made in considering evidence to be
    harmless where S&S finding is supported on alternative grounds).

27. Of the four Mathies factors, only the second and third are at issue here.

28. Section 75.360(a)(1) imposes the general preshift examination requirement while
    section 75.360(b) sets forth the scope of the examination in different circumstances. See Sec'y of
    Labor v. Spartan Mining Co., 415 F.3d 82, 84-85 (D.C. Cir. 2005); see also Enlow Fork Mining
    Co., 19 FMSHRC 5, 12 (Jan. 1997). Consequently, unlike our dissenting colleague, we do not
    rigidly read section 75.360(b)(3) in isolation from the rest of the preshift standard. See slip op. at
    41-42. That the Secretary specifically referred to section 75.360(b)(3) in the order charging the
    violation does not prevent us from reading "these interconnected provisions" of the preshift
    standard together. See Spartan, 415 F.3d at 83-85 (operator cited for violating section
    75.360(a)(1) when it failed to examine areas containing energized trolley wires, as required by
    section 75.360(b)(7)). Section 75.360(b) simply defines what constitutes a complete preshift
    examination under section 75.360(a)(1). Indeed, the order states that JWR's failure to comply
    with section 75.360(b)(3) rendered the preshift examination "incomplete" (Gov't Ex. 7 at 1),
    which also directly violates section 75.360(a)(1)'s requirement that preshift examinations are to
    be "completed."

29. We thus cannot agree with our dissenting colleague's characterization of these
    conditions as simply "general conditions" at the mine. Slip op. at 41 n.5.

30. Commissioner Young would hold the instant case to be materially indistinguishable
    from Buck Creek.

31. We decline to address in this case the Secretary's request that we adopt the
    presumption that preshift violations are S&S. Before the judge, the Secretary specifically
    disavowed the need for the adoption of such a presumption in this case. See S. Post-Trial Br. at
    67-68 (discussing previous cases raising issue of whether there should be a presumption that
    preshift violations are S&S but stating that the judge "does not need to find such a presumption
    in this case").

32. Shortly after MSHA proposed penalties in this case, the maximum penalty for a
    violation was increased from $55,000 to $60,000. 68 Fed. Reg. 6609, 6611 (Feb. 10, 2003).

33. Section 110(i) states in pertinent part:

The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider [1] the operator's history
of previous violations, [2] the appropriateness of such penalty to
the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator's ability to
continue in business, [5] the gravity of the violation, and [6] the
demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

34. The order was only partially upheld in that the judge vacated the part alleging that Dye
    should have detected inadequate rock dusting. See 27 FMSHRC at 805-06. Consequently, the
    judge may have considered the violation to have simply become another of the many violations
    cited as a result of the MSHA investigation that were not viewed as contributing to the
    explosions, most of which were settled prior to the hearing. See id. at 758 n.2. However, the
    judge did not indicate in his penalty discussion whether this was a factor in his decision to reduce
    the penalty for that violation. Similarly, he did not indicate in setting the penalty for the section
    75.1101-23(c) violation whether he substantially reduced it from the amount proposed by the
    Secretary because, while affirming the violation, he vacated the special findings.

35. The operator has global responsibility for actions or omissions of its agents, and for the
    supervision, coordination, and control of all operations. See, e.g., Asarco, Inc. v. FMSHRC, 868
    F.2d 1195 (10th Cir. 1989) (holding that under the Mine Act an operator can be held liable
    without fault for its employee's violative conduct). This responsibility includes liability for the
    inadequate communications and coordination here.

36. I also concur in the separate decision of Commissioner Young affirming the judge's
    finding that the violation of 30 C.F.R. § 75.360(b)(3) was attributable to the operator's
    unwarrantable failure.

37. The language in JWR relied on by the majority is technically dicta, as the Commission
    declined to reach the question of whether the provision at issue was part of the approved plan,
    because it found that, even if it was, the Secretary did not prove that it was violated. 9 FMSHRC
    at 907. The majority's reliance on Harlan Cumberland Coal Co., 20 FMSHRC 1275 (Dec.
    1998), slip op. at 11 n.8, is also misplaced. In that case, we were guided by the fact that "the
    Secretary's argument in this case is actually at odds with the broad purpose of the plan to protect
    miners from dangerous roof conditions," 20 FMSHRC at 1281, and that "[t]he procedure
    suggested by the inspector who filed the citation, considering that he was a roof control
    specialist, astonishes us. . . . [T]he logical outgrowth of [his] interpretation of the plan, would
    have required miners to enter an unpredictable and highly unstable area to commence mining,
    and would have been extremely dangerous." Id. at 1282.

38. See e.g., 30 C.F.R. § 48.3 (training plans); 30 C.F.R. § 75.220 (roof control plans); 30
    C.F.R. § 75.370 (mine ventilation plans).

39. The Secretary correctly notes that none of the provisions in Section II, which concerned
    escapeways and evacuations, used the word "fire." S. Br. at 18-20 (citing Gov't Ex. 34 at 3-4).

40. I do not believe that subsequent revisions to the plan, covering "general evacuation
    procedures," JWR Ex. 266, undermines the reasonableness of the Secretary's interpretation here.

41. Because this announcement alerted operators that the regulation required plan
    provisions to cover explosion-related evacuations, I reject JWR's claim, JWR Resp. Br. at 30-31,
    that it lacked notice that the plan provision covered emergencies caused by explosion.

42. The judge also noted that the similarity between a fire and an explosion was
    acknowledged in a report created by JWR's expert, who stated that "[i]t is probable that [the]
    second ignition of methane resulted in the propagation of flaming" and "[t]he flame would then
    accelerate into a gas explosion." 26 FMSHRC at 628 n.6 (citing Pet'r's Br. Ex. J. at 46).

43. The remainder of the order, alleging Dye's failure to recognize inadequate rockdusting,
    was not upheld by the judge. A close examination of the order indicates that the hazard
    recognition training required by MSHA for abatement appears to pertain only to the alleged
    failure to recognize deficient rockdusting, and not to examining all scheduled work places.

44. In agreement with the majority, I also conclude that the judge was incorrect when he
    found that the power center, where Puckett's crew went in the No. 4 Section, was in the working
    section. Slip op. at 23-24 n.26. Accordingly, when the miners were at the power center and
    other areas outby that had been preshifted, there was no violation and no hazard as a result of
    their presence in the those areas of the No. 4 Section.

45. The majority rejects the position that there is no need to apply the legal fiction,
    "continued normal mining conditions," but cannot cite any case to support the analysis when it is
    known exactly what happened in the hours after Dye's failure to preshift the entire No. 4 Section.
    That is especially so here because the order issued months after the violation. In this regard, in
    addition to relying on general conditions in the mine to support its S&S determination, the
    majority also speculates that miners on Pucketts's crew "could enter the unexamined area before
    Puckett completed his examination." Slip op. at 25. Even under the majority's approach to the
    violation, such an assumption of miner disobedience, in the absence of record support, is
    unwarranted. See Cougar Coal Co., 25 FMSHRC 513, 519 (Sept. 2003) (conduct of rank-and-file miner in disobeying instructions of supervisor cannot support unwarrantability designation
    where there no evidence to suggest miner had disregarded instruction of a supervisor).

46. If no work had been scheduled, there would be no violation. As a comparison consider
    that Puckett, after leaving the No. 4 Section, took two men to the No. 6 Section, which had been
    preshifted in the same manner as the No. 4 Section. There is no allegation that a violation was
    committed and no assertion that Puckett and his crew, by their presence in the No. 6 Section,
    were exposed to hazards from the unexamined areas of that section.

47. While I have focused my attention to the third Mathies element, the judge's
    determination with regard to the second element -- a discrete safety hazard contributed to by the
    violation -- is suspect. In this regard, the judge erred when he analyzed this element assuming
    "continued normal mining operations." 27 FMSHRC at 809. The Commission has generally
    applied that assumption only to analyzing the third element of Mathies. See, e.g., Rushton
    Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989). Further, the judge erred when he found, in
    analyzing the second element, that Puckett and his crew had traveled in unexamined areas of the
    No. 4 Section before he performed the supplemental examination. 27 FMSHRC at 810. The
    majority acknowledges this factual error and indicates that it is deciding the case on grounds
    different than those considered by the judge. Slip op. at 23-24 n.26. However, the majority
    subsequently indicates that it is affirming the judge's findings on the second Mathies element on
    substantial evidence grounds, id. at 24-25 -- a position I find difficult to reconcile with its
    alternative approach. Finally, general conditions at the mine cannot suffice to establish a hazard
    without a connection to the violation. See Texasgulf, Inc., 10 FMSHRC at 500. In this regard,
    the majority cites to general conditions at the mine, which even the judge did not rely on in his
    S&S analysis of the section 75.360(b)(3) violation, to bolster his hazard analysis. Slip op. at 25,
    citing 27 FMSHRC at 824-25 n.72. However, as Mathies requires, the hazard must be
    contributed to by the violation. Sec'y of Labor v. FMSHRC, 111 F.3d 913, 917-18 (D.C. Cir.
    1997).

48. The majority's suggestion that an allegation of a violation of section 75.360(b)(3)
    cannot stand by itself, but must be read to include a general violation of section 75.360(a)(1), slip
    op. at 24 n.28, is at odds with Commission cases. See, e.g., Eagle Energy, Inc., 23 FMSHRC
    1107, 1118 (Oct. 2001); Enlow Fork Mining Co., 19 FMSHRC 5, 14-16 (Jan. 1997). In reading
    and interpreting regulations, the Commission has examined the context in which a regulation
    appears. RAG Shoshone Coal Corp., 26 FMSHRC 75, 80 (Feb. 2004); see also Sec'y of Labor v.
    Spartan Mining Co., 415 F.3d 82, 84-85 (D.C. Cir. 2005). However, here the majority seeks to
    read into its S&S analysis a general violation of the pre-shift examination requirement in section
    75.360(a)(1), and I can find no basis for doing that.

49. Unlike my colleagues, I believe that the Secretary is quite capable of distinguishing
    between a violation of section 75.360(a)(1) and a violation of section 75.360(b)(3), see Eagle
    Energy, Inc. and Enlow Fork Mining, supra, and I am confident that, if she believed a violation
    of section 75.360(a)(1) had occurred, she would have alleged it as she did in the Spartan Mining
    case that my colleagues cite.

50. My colleague's statement that the violation was "extensive," slip op. at 31, is based on
    the erroneous assumption that no miner could go in the No. 5 mine as long as any area of the No.
    4 Section was unexamined. That assumption, however, ignores the carefully drafted words of the
    citation, alleging an inadequate preshift examination in some areas of the No. 4 Section - under
    section 75.360(b)(3), not under section 75.360(a).

51. Dye's testimony that he had been performing preshift examinations since 1996 and
    never been cited for an inadequate preshift exam, Tr. III 409-10, was uncontradicted.

52. My colleague's plenary review of the record to glean facts relating to general
    conditions at the mine does not resolve whether the Dye's inadequate examination was due to
    JWR's unwarrantable failure because these conditions, even if characterized as "per se deadly
    hazards," slip op. at 31, must somehow relate to the operator's violative conduct. See cases
    cited, slip op. at 42 n.5.