Secretary of Labor v. Jim Walter Resources, Inc.

Plain-English summary

An employee of contractor O&O Services fell through an opening at Jim Walter Resources' coal load-out facility while not using fall protection. The judge held JWR strictly liable as the mine operator for the significant-and-substantial violation but found that JWR itself was not negligent and reduced the proposed $45,000 penalty to $500. The Commission affirmed because JWR had hired an experienced contractor, verified MSHA-approved training, provided tie-off points and fall-protection equipment, visited the short project, and lacked notice that the opening had been uncovered or that the employee was unprotected. It also upheld the judge's treatment of two earlier incidents and held that the no-negligence finding could receive greater weight in the penalty assessment. Commissioners Young and Cohen dissented, arguing that the prior contractor falls required a fuller negligence analysis and remand.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1710(g)
• Outcome: The no-negligence finding, evidentiary rulings, and reduction of the penalty from $45,000 to $500 were affirmed.
• Key point: An owner-operator remains strictly liable for a contractor's violation, but its own lack of fault may substantially reduce the penalty when it took reasonable precautions and lacked notice of the unsafe act.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

August
21, 2014

SECRETARY OF LABOR,������������������������� ����
���� :���������������������� �������

�MINE SAFETY AND HEALTH���������������� ���� ���� :����������������������

�ADMINISTRATION (MSHA)������������������� ���� ���� :����������
����������

����������������������������������������������������������������������� ����
���� :���������� Docket Nos.��� SE 2008-881��������������

���������������� v.������������������� ����������������������� ����������� :����������
���������������������� SE 2008-268-R����

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�

JIM WALTER RESOURCES, INC. :

BEFORE: Jordan, Chairman;
Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY: Jordan, Chairman;
Nakamura and Althen, Commissioners

����������� This consolidated
contest and civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 801 et seq. (2012). At issue is whether a
Commission Administrative Law Judge abused his discretion in reducing a civil
penalty assessed against Jim Walter Resources, Inc. (�JWR�) for a
failure-to-wear-fall-protection violation of 30 C.F.R. � 77.1710(g).1 33 FMSHRC 362 (Feb.
2011) (ALJ). The citation was issued to JWR following a fall by an employee of
JWR�s contractor, O&O Services. The Judge assessed a penalty of $500 rather
than the proposed penalty of $45,000. Id. at 370-71. The Secretary of
Labor filed a petition for discretionary review, challenging the penalty
reduction, the Judge�s finding that JWR was not negligent, and the Judge�s
related treatment of evidence regarding two prior incidents involving violations
of section 77.1710(g) by JWR. For the reasons that follow, we affirm the
Judge�s decision.

I.

Factual and Procedural Background

����������� The clean coal
load-out facility at JWR�s No. 4 Mine funnels clean coal into trucks and rail
cars. Clean coal is moved by conveyor belt to the top of the facility, where it
is dumped into a large, downward pointing metal cone-shaped loading bin. The
cone surrounds an opening in the floor of a platform, which is approximately 21
by 48 inches in size. The cone funnels and loads the coal into trucks parked
beneath the loading bin. Tr. 64, 117; JWR Exs. 6g-6i.

����������� JWR contracted
with O&O to provide the labor and supervision for a project to replace the
cone-shaped bin. 33 FMSHRC at 364. O&O was to remove the eight sections of
the cone and replace them with new sections.

����������� O&O�s work on
the project began on December 2, 2007. Id. Loops, called �pad eyes� were
welded onto the existing bin and the new sections of the cone. Id. at
370; Gov�t Ex. 20F; Tr. 334-35, 389. The loops could be used to lift the
structure�s pieces or for miners to tie-off on them. Tr. 389. Removal of the
cone sections exposed the hole in the floor of the platform. During part of the
project, the hole was covered with a metal plate that had metal fins, or
�gussets,� protruding from it. Tr. 64-65.

����������� On December 4,
two issues arose regarding the project. Tr. 319-21. First, there were concerns
that part of the structure had been unevenly cut, which could potentially
result in gaps between the new cone sections. Tr. 233-36, 263-64, 277, 310. Second,
O&O experienced difficulty in positioning some of the new sections of the
cone into place because the metal fins on the metal plate covering the hole in
the platform were interfering with placement of the pieces. Tr. 67-68, 312.

����������� At some point
during installation of the cone pieces, the metal plate was moved away from
covering the entire hole and a section of 2 x 12 wooden board was placed over
the open space, partially covering the hole. Tr. 78, 317, 393. Tony Pierce, an
O&O employee, stood on the board using a pry bar to move the fifth cone
section into place. Tr. 67, 109-10, 117-18, 316-17. The board was dislodged,
and Mr. Pierce fell through the hole a distance of 25 feet and landed on a
concrete platform. Tr. 81, 139. Pierce was not wearing a safety belt or fall
protection. Tr. 113.

����������� The Department of
Labor�s Mine Safety and Health Administration (�MSHA�) investigated the
accident. As a result of the investigation, MSHA Inspector Stephen Womack
issued citations to O&O and JWR. The citation issued to O&O alleged a
significant and substantial (�S&S�) violation of section 77.1710(g) that
had been caused by O&O�s unwarrantable failure.2 Gov�t Ex. 2. The Secretary proposed a
penalty of $60,000 against O&O. O&O agreed to pay $5,000 in settlement
of the citation, and the Judge approved the settlement. 33 FMSHRC at 364 n.1;
PDR at 3, 4.

����������� The citation
issued to JWR, Citation No. 7693051, alleged an S&S violation of section 77.1710(g)
that had been caused by moderate negligence. Gov�t Ex. 3. The citation was
terminated on February 5, 2008, after �[JWR] management . . . submitted to MSHA
a statement indicating that a greater emphasis on the use of PPE [personal
protective equipment] will be related to contractors doing work on JWR No. 4
mine property, and during the process of hazard training will review recent
accidents of contractor employees.� Id. The Secretary proposed a special
assessment of $45,000 against JWR.3

����������� JWR challenged
the citation, and the parties conducted discovery and filed prehearing
pleadings. Prior to and during the hearing, the Judge granted in part a motion
in limine filed by the operator seeking to exclude evidence that had been the
subject of previously issued protective orders. PDR at 3 n.1; Tr. 7-10. The
Judge excluded evidence regarding a 2001 incident, including proposed Gov�t Ex.
13A, which is a citation issued to JWR alleging a violation of section
77.1710(g). Tr. 7-8, 10. The Judge admitted evidence regarding a 2007 incident,
including a citation issued to JWR for a violation of section 77.1710(g)
arising from a fatal fall by JWR�s contractor (Gov�t Ex. 9) and a decision
approving settlement regarding the 2007 incident (Gov�t Ex. 11). Tr. 134-35. The
Judge excluded other evidence regarding the 2007 incident. Tr. 5, 7.

����������� Following a
hearing on the citation issued to JWR, the Judge affirmed the citation and
assessed a civil penalty of $500 against JWR rather than the proposed penalty
of $45,000. 33 FMSHRC at 368, 370-71. He concluded that O&O violated the
standard, and that the violation was S&S. Id. at 368-69. The Judge
reasoned that because the Secretary may cite JWR as an owner-operator for its
contractor�s violations, JWR was also liable for the violation. Id. at
368.

����������� Applying the
factors set forth in section 110(i) of the Mine Act, 30 U.S.C. � 820(i), in his
assessment of penalty, the Judge found that JWR is a large business, that there
was no evidence that the proposed penalty would affect its ability to remain in
business, and that the violation was abated promptly and in good faith. Id.
at 369. The Judge further found that gravity was high, and that JWR had a
significant history of violations. Id. at 368-69.

����������� Regarding
negligence, the Judge noted that Inspector Womack testified that JWR was
moderately negligent because it did not do �everything [it] could� to see that
its contractor was following federal regulations. Id. at 369-70. The
Judge reasoned that the Secretary was in essence suggesting that JWR must
maintain direct and continuous supervision over its contractor�s employees, but
that such a requirement is not required by law. Id. at 370. He stated
that the closest the Secretary had come to providing notice as to the standard
of care required of JWR was the abatement required regarding the 2007 incident.
Id. Those abatement actions included additional training and requiring
JWR to install an adequate anchorage system. Id. The Judge found that,
in this instance, JWR had provided an adequate anchorage system and that
O&O employees were provided adequate training prior to beginning work. Id.
The Judge concluded, accordingly, that JWR exercised the standard of care
required by law and that the Secretary failed to prove that JWR was negligent. Id.

����������� The Secretary
filed a petition for discretionary review challenging the Judge�s finding that
JWR was not negligent, the Judge�s treatment of evidence regarding the 2001 and
2007 incidents, and the Judge�s reduction of penalty. The Commission granted
the Secretary�s petition.

II.

Disposition

A.������� The Judge�s Finding that JWR was Not
Negligent Is Supported by Substantial Evidence.

����������� The Commission
has recognized that �[e]ach mandatory standard . . . carries with it an accompanying
duty of care to avoid violations of the standard, and an operator�s failure to
meet the appropriate duty can lead to a finding of negligence if a violation of
the standard occurs.� A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983).
In determining whether an operator met its duty of care, we consider what
actions would have been taken under the same circumstances by a reasonably
prudent person familiar with the mining industry, the relevant facts, and the

�protective purpose of the
regulation.4 See
generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).

����������� Considering JWR�s
conduct against this framework, we conclude that substantial evidence supports
the Judge�s determination that JWR was not negligent.5 The record demonstrates that JWR was
not negligent in hiring O&O. O&O had no prior MSHA violations. Tr. 197,
333, 414. O&O had completed other projects for JWR safely, including three
or four that year, and was considered an �approved vendor� for JWR. Tr. 274,
292-93. JWR also determined that O&O was appropriately aware of MSHA�s regulations.
JWR ensured that O&O had received required training before work on the
project began. Tr. 299, 349-50. As part of their hazard training, O&O�s
employees watched an MSHA fall protection video. Tr. 387, 400-02. O&O�s
training program had been approved by MSHA. Tr. 185-86, 414. Robin O�Dell, an
employee of O&O who provided training, was an MSHA certified trainer. Tr.
387, 398-401.

����������� Furthermore, we
disagree with the Secretary�s argument that JWR failed to adequately monitor
O&O�s compliance with safety standards once O&O began work. The project
was relatively brief in duration. O&O began the project during the night
shift Sunday and had removed the cone and was in the process of replacing the
fifth of eight cone pieces at the time of the accident on the following Tuesday
morning. Tr. 67, 173, 232, 275. JWR Senior Maintenance Engineer Jerry Pullen
met with O&O on Tuesday, and JWR Project Supervisor Randy Osborne and JWR
Plant Manager Alan Smith met with O&O at the site on Monday and Tuesday
mornings. Tr. 231-32, 261-62, 276-77. Osborne and Smith testified that at the
time that they were on the site, they did not observe any miners who were in
danger of falling who were not wearing fall protection. Tr. 260-61, 266, 299. Smith
testified that he had previously seen O&O employees working at heights on
previous projects, and that they had been wearing and using fall protection. Tr.

295. Inspector Womack testified that he had been informed by O&O Foreman
     Kris Gamble that Pierce had been wearing fall protection earlier in the day of
     the accident when he was on a ladder. Tr. 108-09, 177.

����������� There is likewise
no evidence that there was an unusual condition that should have alerted JWR to
a hazardous condition. Fall protection equipment had been provided and was located
in the area of the accident, and pad eyes used for tying off had been installed
on the cone sections. 33 FMSHRC at 370; Gov�t Exs. 20F, 20H; Tr. 73, 334. There
were no allegations that use of the metal plate with gussets to cover the hole
was negligent.

����������� In addition, JWR
had not been informed that O&O was having difficulty installing the cone
sections because the gussets of the plate covering the hole interfered with
placement of the sections. Tr. 231-32, 263-64, 268-69, 320-21. Pullen�s and
Osborne�s testimony that they had not been informed of the problem with the
plate was corroborated by O&O Foreman Gamble, who testified that although
he discussed with Pullen and Osborne the problem involving the cone sections
not matching up because one had not been cut level, he did not discuss the
plate problem. Tr. 320-21. On the morning of the accident, Pullen and Osborne
were in the area of the plate covering the platform but saw no hole in the
platform because the hole was covered at the time of their visit. Tr. 235, 243,
245, 264-65, 267.

����������� Substantial
evidence also supports the Judge�s finding that JWR was not aware that Pierce
was working over the open hole or that Pierce failed to wear fall protection. 33
FMSHRC at 370. As discussed above, Pullen and Osborne testified that at the
time they were at the site, the hole in the platform was covered. Tr. 243, 245,
265, 267. Smith testified that he was not aware that O&O had installed a
plate over the hole or that it had been moved. Tr. 280-81.

����������� The Secretary fails
to describe any specific action that JWR did not take to meet its standard of
care. Rather, Inspector Womack explained that the citation had been issued to
JWR because MSHA believed there was negligence and JWR �did not do everything
[it] could� to see that the contractor was following regulations. Tr. 125. The
inspector�s accident investigation report does not specify any actions or
failure to act by JWR that contributed to the violation. Rather, the report
only states that �the contractor [O&O] failed to adequately control
the work site and workers actions.� Gov�t Ex. 6 at 2 (emphasis added); Tr.
126-27, 160-61, 211-12. We conclude that substantial evidence supports the
Judge�s determination that the Secretary did not meet her burden of proving
negligence on the part of JWR. 33 FMSHRC at 370.6

B.������� The Judge Did Not Err in his Treatment of
the 2001 and 2007 Incidents.

����������� The Secretary
contends that the Judge failed to consider the 2001 and 2007 incidents, which
the Secretary argues should have put JWR on notice that it was not meeting its
standard of care. He does not dispute the Judge�s exclusion of evidence with
respect to the 2007 incident but, rather, argues that the Judge failed to
adequately consider the 2007 violation in finding that JWR was not negligent. Sec.
Reply Br. at 1-2 n.1, 6. Regarding the 2001 incident, the Secretary contends that
the Judge erred in excluding proposed Gov�t Ex. 13A, the citation issued to JWR
arising from the 2001 incident. Sec. Reply Br. at 1-2 n.1. The Secretary
explains that the Judge excluded the citation because �he believed it was �too
old to represent an expression of the [Secretary�s] unreviewable prosecutorial
discretion in late 2007.� Id. at 3. The Secretary submits that his
discretion to cite an owner for the violations of its independent contractor is
unreviewable and because the Judge had no authority to even consider the
Secretary�s prosecutorial discretion, he abused his discretion in excluding the
citation. Id.

����������� When reviewing a
Judge�s evidentiary rulings, the Commission applies an abuse of discretion
standard. Gray v. North Fork Coal Corp, 35 FMSHRC 2349, 2356 (Aug.
2013). An abuse of discretion may be found when �there is no evidence to
support the decision or if the decision is based on an improper understanding
of the law.� Id. (quotations and emphasis omitted).

����������� In his negligence
analysis, the Judge noted that the 2007 citation involved �a prior violation of
the same standard by JWR about one month before the incident herein and
involving a fatal fall accident of an employee of a JWR contractor.� 33 FMSHRC
at 370. He considered the accident to determine the notice provided to JWR of
the required standard of care. Id. The Judge noted the actions required
by the Secretary for JWR to abate the 2007 violation (providing additional
training and installing an adequate anchorage system to secure personnel from
falling) and that JWR had taken those actions before the time that the subject
accident occurred. Id. As noted above, the anchorage system available at
the subject accident site and JWR�s actions in ensuring that O&O had
received adequate training are relevant to the consideration of negligence. Accordingly,
we conclude that the Judge adequately considered the 2007 violation in his
negligence analysis.

����������� We further
conclude that the Judge did not abuse his discretion in excluding proposed
Gov�t Ex. 13A, the citation issued to JWR arising from the 2001 incident. After
viewing in context the Judge�s statement, it is clear that the Judge was not
actually considering the Secretary�s prosecutorial discretion. See, e.g.,
Tr. 25 (stating in part, �I am referring to notice. I don�t have any problem
with exercising discretion�). Rather, the Judge�s statements demonstrate that
he considered the standard of care required of an owner-operator in cases in
which its independent contractor has been cited to be vague, and that the 2001
citation did not provide notice to JWR of what was expected of it at the time
of the subject accident. Tr. 17-19, 25-27; see also 33 FMSHRC at 370
& n.5. Thus, the Judge�s exclusion of the 2001 citation was not based on an
erroneous conclusion that he could consider the Secretary�s prosecutorial
discretion in citing JWR.

����������� In any event,
even if we were to conclude that the Judge erred in excluding Gov�t Ex. 13A, we
would find such error to be harmless. For the reasons discussed above, we find
substantial evidence in the record supporting the Judge�s negligence holding,
and consideration of the 2001 citation would not alter our conclusion.

C.������� The Judge Did Not Err in Reducing the
Penalty Amount.

����������� The Secretary
argues that the Judge abused his discretion in reducing the penalty assessed
against JWR from the proposed amount of $45,000 to $500. He asserts that the
Judge failed to explain the reduction adequately, even if the reduction were
based on his no negligence finding, because the Judge also found the violation
history to be significant and gravity to be high. The Secretary contends that a
Judge may not give dispositive weight to any one penalty factor.

����������� Commission Judges
are accorded broad discretion in assessing civil penalties under the Mine Act. See,
e.g., Cantera Green, 22 FMSHRC 616, 620 (May 2000). Such discretion is not
unbounded, however, and must reflect proper consideration of the penalty
criteria set forth in section 110(i) and the deterrent purpose of the Act. Sellersburg
Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983), aff�d, 736 F.2d 1147
(7th Cir. 1984). Although there is no presumption of validity given to the
Secretary�s proposed assessments, the Commission has recognized that
substantial deviations from the Secretary�s proposed assessments must be
adequately explained using the section 110(i) criteria. Cantera Green,
22 FMSHRC at 620-21. 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).

����������� We conclude that
the Judge did not abuse his discretion in assessing the penalty. The Judge
addressed and made findings on all six section 110(i) factors in his assessment
of penalty. 33 FMSHRC at 369-70.

����������� The Commission
has recognized that in assessing a civil penalty, there is no requirement that
equal weight must be assigned to each of the penalty assessment criteria. Rather,
�Judges have discretion to assign different weight to the various factors,
according to the circumstances of the case.� Lopke Quarries, Inc., 23
FMSHRC 705, 713 (July 2001), citing Thunder Basin Coal Co., 19
FMSHRC 1495, 1503 (Sept. 1997). Indeed, the Commission has held that Judges
have not abused their discretion by more heavily weighing gravity and
negligence than the other

penalty criteria.7 Lopke, 23 FMSHRC
at 713; Musser Engineering, Inc., 32 FMSHRC 1257, 1289 (Oct. 2010).

����������� The Judge did not
err by weighing the negligence criterion more heavily than the other section
110(i) factors in assessing the penalty against JWR. In proposing a penalty,
the Secretary weighs the gravity criterion more heavily than the negligence
criterion. PDR at 7. However, the Judge was not required to weigh the criteria
in assessing the penalty in the same manner that the criteria are weighed in
the proposal of a penalty. In determining the amount of a penalty, neither the
Judge nor the Commission is restricted by the penalty proposed by the
Secretary. Musser Engineering, 32 FMSHRC at 1288 (citations omitted). See
also 29 C.F.R. � 2700.30(b) (�In determining the amount of a penalty,
neither the Judge nor the Commission shall be bound by a penalty proposed by
the Secretary or by any offer of settlement made by a party.�).

����������� Moreover, when cited
for a contractor�s violation, an owner-operator is strictly liable for the
violation and its fault, or lack thereof, may be taken into account only in the
consideration of negligence during penalty assessment. Int�l Union, UMWA v.
FMSHRC, 840 F.2d 77, 83-84 (D.C. Cir. 1988); Musser, 32 FMSHRC at
1272, citing Asarco, Inc., 8 FMSHRC 1632, 1634-36 (Nov. 1986), aff�d,
868 F.2d 1195 (10th Cir. 1989) (�the operator�s fault or lack thereof, rather
than being a determinant of liability, is a factor to be considered in
assessing a civil penalty�). Here, the Judge appropriately considered JWR�s
fault, or lack thereof, in his determination of negligence and assessment of
penalty. Accordingly, we affirm the Judge�s assessment of a penalty of $500.8

III.

Conclusion

����������� For the reasons
discussed above, we affirm the Judge�s determination that JWR was not
negligent, his treatment of evidence regarding the 2001 and 2007 incidents, and
his assessment of penalty.������������������������������� �����������������������������������������������������������

����������������������������������������������������������������������������������� /s/
Mary Lu Jordan

����������������������������������������������������������������������������������� Mary
Lu Jordan, Chairman

����������������������������������������������������������������������������������� /s/
Patrick K. Nakamura

����������������������������������������������������������������������������������� Patrick
K. Nakamura, Commissioner

����������������������� ����������������������������������������������������������������������������������� ����������������������������������������������������������������������� ����������� ����������������������������������������������� /s/
William I. Althen

����������������������������������������������������������������������������������� William
I. Althen, Commissioner������

�����������

Commissioners Young and
Cohen, dissenting:

����������� We cannot agree
with the Judge�s analysis of JWR�s negligence in this case, which fails to
fully appreciate the context in which this violation occurred or to analyze the
operator�s duty in that context. While we do not believe the record requires
reversal, we would remand the case for re-evaluation of the negligence and, if
necessary, reconsideration of the penalty.1 Accordingly, we dissent.

����������� The near-fatal
fall in this case was the third time in seven years that a contractor�s
employee had fallen at a JWR operation while working, unprotected, at height. The
previous two falls, in 2001 and 2007, had been fatal. The miner in this case
fell 25 feet onto a concrete pad, was seriously injured, and easily could have
been killed. Tr. 139.

����������� The Judge seemed
to lack sufficient grasp of the influence that the prior falls might reasonably
have exerted on JWR�s appreciation of the potential danger. It may well be that
JWR was justified in trusting O&O to safely oversee its own workers, using
JWR�s remedial abatement measures and fall protection which O&O should have
known was required under the circumstances. However, the owner-operator�s
conduct here must also be properly evaluated in light of the Act and the duties
it imposes upon operators.

����������� We thus agree
with the Secretary that the Judge improperly imposed an additional burden on
the Secretary to provide notice to an owner-operator of the standard of care
owed to contractor employees. While the allocations of duty and responsibility
may vary under different circumstances, an operator of a mine does indeed owe a
high duty of care to all miners working in that mine, including contractor
employees.

����������� This is organic
to the structure and purpose of the Act. Section 2 of the Mine Act notes the
terrible toll exacted by unsafe and unhealthful conditions and practices in the
nation�s mines and provides that �the operators of such mines with the
assistance of the miners have the primary responsibility to prevent the
existence of such conditions and practices in such mines.� 30 U.S.C. � 801(e).

����������� Thus, while the
Judge agreed with JWR that it had not been provided with notice of the standard
of care, 33 FMSHRC 362, 369-70 (Feb. 2011) (ALJ), the Act itself imposes a duty
to prevent unsafe conditions or practices. Furthermore, while 30 C.F.R. Part
100 is not binding on the Commission,2
it clearly provides notice to operators of the Secretary�s conception of the
duty owed to miners under the Act. Section 100.3(d) informs JWR and every other
operator of the Secretary�s expectation of the �high standard of care� owed to
all miners in its mines, and of its responsibility to �be on the alert� for
unsafe practices or conditions and �take steps necessary to correct or prevent
them.� PDR at 8-9, citing 30 C.F.R. � 100.3(d).3 The regulation goes on to flatly
state that the failure to do so constitutes negligence. Id. The operator
should have at least known the Secretary�s expectations, expressed in a
published regulation.

����������� Thus, the
question posed by this case is not whether JWR did �everything they [sic]
could,� 33 FMSHRC at 369, but whether the operator failed to apprehend the
evident danger in this case and to take such steps as a reasonable person,
familiar with the mining industry and the protective purposes of the Act, would
take under the circumstances to prevent miners from being exposed to a risk of
injury or death. The majority acknowledges this as the correct standard. Slip
op. at 4, citing U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). However,
the majority then analyzes JWR�s duty in terms of substantial evidence,
disregarding the Judge�s legal error in miscasting the concept of negligence in
this case. Slip op. at 5. ������

����������� In evaluating an
operator�s duty, and its possible breach, context is crucial. Yet the Judge
utterly failed to consider two nearly identical, fatal injuries to contractor
employees in JWR�s recent history. One of the two falls happened a mere four
months before the fall in this case. G. Ex. 9; PDR at 13-14. Instead of considering
the two prior falls by contract employees, he misapplied the law and excluded
evidence of the 2001 accident altogether, on grounds that it was �too old� to
provide notice to JWR of MSHA�s policy of prosecuting injuries to contract
employees. Tr. 10.4 The
Secretary correctly questions how a fatal accident only seven years earlier
could have faded from memory. PDR at 13. Indeed, it is not unreasonable to
expect it to have become part of JWR�s consciousness on safety issues involving
contractors.

����������� As the Secretary
notes (PDR at 12; Sec. Reply Br. at 4-5), as demonstrated by Alabama law, for
example, a Judge should have considered both accidents as evidence of negligence,
�so long as the conditions of the prior incidents are substantially similar� �
in this case, they are nearly identical � �and are not too remote in time.� See
e.g., Wyatt v. Otis Elevator Co., 921 F.2d 1224, 1227 (11th Cir.
1991). Here, the Judge did not do so, nor did he explain why a fatal accident
seven years earlier at one of the operator�s own work sites was too remote in
time, a fact we cannot accept as self-evident.

����������� If the 2001
fatality was at least arguably relevant to JWR�s negligence, the 2007 fatality
was doubly so. The Judge therefore was required to determine whether a
reasonably prudent person would have recognized the danger that event evinced,
as well as the possibility that this fall and the 2001 fatality may have
represented a pattern of inadequate contractor attention to the safety
standards governing fall protection. Instead, the 2007 accident, which was the
subject of evidence presented to the Judge,5 is not meaningfully considered in his negligence
analysis. The majority errs in miscasting the relevance of the very recent
fatality in nearly identical circumstances. The important question is not JWR�s
notice of the standard of care. See slip op. at 7; 33 FMSHRC at 369-70. It
is whether and how JWR�s duty to protect the workers in its mines, in light of
an incident that a reasonable person would have to consider in determining how
to uphold that duty, was fulfilled.

����������� The Judge
therefore erred in two significant regards. His understanding of JWR�s duty did
not conform to the expectations of the Mine Act and the regulations
implementing it, and he failed to consider incidents similar enough to be
relevant to JWR�s knowledge and actions in the context of this case. The result
is an improperly constrained view of the operator�s actions here. The Judge
faults the Secretary for �suggesting that JWR must maintain direct and
continuous supervision over its contractor�s employees� to ensure fall
protection is employed when required, 33 FMSHRC at 370. But his opinion is
devoid of analysis of any lesser measures that JWR might have undertaken in
these circumstances, in light of a recent history of contractor employees
falling to their deaths.

����������� The Judge thus
never considered whether, for example, JWR might have averted the severe
consequences in this case by taking a more safety-conscious approach, such as
reminding the contractor specifically, before commencing work each day,6 of the steps JWR had
taken to provide a safe work environment, and the need for the contractor to
ensure its employees used the fall protection JWR had made available.

����������� This is not a
case where the operator �did nothing.�7 Nor is it a case where the operator should be excused
without reflection for �not doing everything it could.� It is instead a
garden-variety negligence case, in which the operator�s conduct must be
properly evaluated against the expectations imposed upon a reasonable operator
in the same context. The Judge failed to recognize this, and we therefore
dissent and suggest that the case should be remanded for a proper analysis of
the operator�s conduct.

�����������������������������������������������������������������������

����������������������������������������������������������������������������������� /s/
Michael G. Young

����������������������������������� ����������������������������������������������� Michael
G. Young, Commissioner

����������������������������������������������������������������������������������� /s/
Robert F. Cohen, Jr.

����������������������������������������������������������������������������������� Robert
F. Cohen, Jr., Commissioner

�����������������������������������������������������������������������������������������������������������������������������������������������������������

Distribution:

Guy Hensley, Esq.

Jim Walter Resources, Inc.

3000 Riverchase Galleria,
Suite 1700

Hoover, AL 35244

David M. Smith, Esq.

John B. Holmes, Esq.

Maynard, Cooper & Gale,
P.C.

1901 Sixth Ave. North, Suite
2400

Birmingham, AL 35203

Melanie Garris

Office of Civil Penalty
Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th
Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Administrative Law Judge Gary
Melick

Federal Mine Safety &
Health Review Commission

Office of Administrative Law
Judges

1331 Pennsylvania Avenue, N.
W., Suite 520N

Washington, D.C. 20004

1 30
C.F.R. � 77.1710 provides in part that, �Each employee working in a surface
coal mine or in the surface work areas of an underground coal mine shall be
required to wear protective clothing and devices as indicated below.� Paragraph
(g) provides:

Safety
belts and lines where there is a danger of falling; a second person shall tend
the lifeline when bins, tanks, or other dangerous areas are entered.

30 C.F.R � 77.1710(g).

�

2 The
S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.

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

3 In the Secretary�s determination of a proposed
penalty amount, the Secretary may propose a �regular assessment� under 30
C.F.R. � 100.3 or a �special assessment� under 30 C.F.R. � 100.5.

4 We reject the Secretary�s argument that the
Commission must apply the standard of care set forth in 30 C.F.R. � 100.3(d) in
considering whether JWR was negligent. Section 100.3(d) defines negligence in
part as �conduct, either by commission, or omission, which falls below a
standard of care established under the Mine Act to protect miners against the
risks of harm.� 30 C.F.R. � 100.3(d). The Secretary�s Part 100 regulations
apply only to the Secretary�s. penalty proposals, while the Commission
exercises independent authority to assess penalties pursuant to section 110(i)
of the Mine Act. Deshetty, emp. by Island Creek Coal Co., 16 FMSHRC
1046, 1053 (May 1994); Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147,
1151-52 (7th Cir. 1984), aff�g Sellersburg Stone Co., 5 FMSHRC
287 (Mar. 1983) (�[N]either the ALJ nor the Commission is bound by the
Secretary�s proposed penalties . . . we find no basis upon which to conclude
that [MSHA�s Part 100 penalty regulations] also govern the Commission.�).

5 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)).

6 Our
colleagues agree with us that the appropriate legal standard to determine
negligence

in this matter is the
reasonably prudent person standard. Slip op. at 12. They would remand the case
and instruct the Judge to apply this standard to the facts in the record.

����������� This
would be an unnecessary exercise, since the Judge articulated and applied a
standard that was similar, and that took into account the reasonableness of the
operator�s actions 33 FMSHRC at 369-70 (�Negligence has been defined as conduct
involving an unreasonably great risk of causing damage or conduct that falls
below the standard established by law for the protection of others against
unreasonable risk of harm.�). Finally, even if the foregoing had not occurred,
remand here is not necessary because the evidence in this case supports no
other conclusion than that the Secretary failed to prove that JWR was
negligent. See American Mine Svcs., Inc., 15 FMSHRC 1830, 1833-34 (Sept.
1993) (holding that remand would serve no purpose because the evidence
presented on the record supported no other conclusion than that the operator�s
conduct was not unwarrantable).

7 We conclude that Fort Scott Fertilizer-Cullor,
Inc., 19 FMSHRC 1511 (Sept. 1997), the case cited by the Secretary to
support his argument, is distinguishable. In that case, the Commission vacated
the penalty assessed by the Judge because the Judge only addressed and made
findings with respect to one of the six criteria. 19 FMSHRC at 1518. Here, as
noted, the Judge addressed and made findings on all six criteria.

8 We note that if the penalty had been proposed as a
regular assessment (rather than a special assessment) with a finding of no
negligence, the proposed penalty would have been within the general range of
the $500 penalty assessed by the Judge. Cf. Sedgman, 28 FMSHRC 322, 327
n.6 (June 2006) (noting that the Secretary proposed a penalty of $1,270 against
JWR for its violation of section 77.1710(g)).

1 We agree with the majority that if the Judge properly
analyzes the negligence element and explains a significant reduction in the
penalty based on that element alone, as he did in this case, he has not abused
his discretion.

2 The majority misapprehends the significance of
Section 100.3. See slip op. at 4, n.4. To the extent the Judge held that
the operator did not have notice of the duty it owes its miners, he is refuted
by a published regulation, and the well-understood operation of the broad
definition of �miner� under the Act.

3 Section
100.3(d) provides in part:

Negligence
is conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of
harm. Under the Mine Act, an operator is held to a high standard of care.
A mine operator is required to be on the alert for conditions and practices
in the mine that affect the safety or health of miners and to take steps
necessary to correct or prevent hazardous conditions or practices. The
failure to exercise a high standard of care constitutes negligence.

30
C.F.R. � 100.3(d) (emphasis added).

4 The fact that the Secretary did not articulate the
law properly below does not excuse the Judge�s legal error, which we review de
novo. As the majority acknowledges, a decision based on an improper
understanding of the law is abuse of discretion per se. Slip op. at 7,
citing Gray v. North Fork Coal Corp., 35 FMSHRC 2349, 2356 (Aug. 2013).

5 The Judge also took testimony on the 2001 incident as
a proffer to preserve the facts for a possible appeal. Tr. 222-26. As noted
above, failure to consider the 2001 incident was erroneous.

6 Chris O�Dell of O&O testified that the contractor
had a safety meeting each morning on the job and that fall protection was
specifically addressed. Tr. 332. There is no evidence of any JWR
representatives discussing fall protection with O&O employees at the daily
meetings.

7 As the operator says in its brief, witnesses for
O&O noted that JWR routinely applied pressure to contractors to abide by
safety rules, especially those pertaining to fall protection. JWR Br. at 7; Tr.
330-31. JWR also discussed fall protection with O&O each time the
contractor bid on a job, and JWR expressly told O&O that �[i]f we didn�t
follow safety procedures as in tying off . . . we would be escorted off the
site.� JWR Br. at 7; Tr. 384. We note that the Judge did not evaluate these
actions either, and on remand would be required to do so under the appropriate
standard of care.