Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources operated the No. 7 Mine near Birmingham, Alabama. MSHA cited the company after an inspector found combustible trash around a ventilation curtain, including a large accumulation in an inactive area and a smaller accumulation in an active area. The Commission held that the ALJ analyzed the operator’s conduct too narrowly by focusing on the non-violative accumulation and not fully applying the factors used to assess unwarrantable failure. The majority vacated the ALJ’s decision and remanded for further consideration, while two Commissioners dissented and would have affirmed the ALJ’s decision because the Secretary had not shown causation or aggravated conduct.

Decision snapshot

• Governing provisions: 30 U.S.C. § 814(d)(1); 30 C.F.R. §§ 75.2 and 75.400.
• Outcome: The Commission vacated the ALJ’s decision and remanded for further consideration of unwarrantable failure.
• Key point: Conditions that do not themselves violate a mine-safety standard may still be considered with the violative conditions when determining whether the operator’s conduct was unwarrantable.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                           July 29, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 94-244-R
:
JIM WALTER RESOURCES, INC. :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

                                            DECISION

BY: Jordan, Chairman; Marks and Beatty, Commissioners

    This contest proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30

U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), involves a citation issued by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”), alleging a violation of 30 C.F.R.
§ 75.4001 because of a trash accumulation in an entry of the No. 7 Mine of Jim Walter Resources,
Inc. (“JWR”). Administrative Law Judge Gary Melick concluded that the violation was neither
significant and substantial (“S&S”) nor due to JWR’s unwarrantable failure. 16 FMSHRC 1511
(July 1994) (ALJ). The Commission affirmed the judge’s determination. 18 FMSHRC 508 (Apr.
1996). The Secretary appealed, and the court of appeals affirmed the Commission’s S&S
determination but reversed the unwarrantable failure determination and remanded the case for
further proceedings. Secretary of Labor v. FMSHRC and Jim Walter Resources, Inc., 111 F.3d 913
(D.C. Cir. 1997). The Commission then vacated its unwarrantable failure determination and
remanded the issue. 19 FMSHRC 1377 (Aug. 1997). On remand, the judge again concluded that

    1
        30 C.F.R. § 75.400 states:

                    Coal dust, including float coal dust deposited on rock-dusted
             surfaces, loose coal, and other combustible materials, shall be cleaned up
             and not be permitted to accumulate in active workings, or on . . . electric
             equipment therein.

“Active workings” is defined in 30 C.F.R. § 75.2 as “[a]ny place in a coal mine where miners are
normally required to work or travel.”

                                         21 FMSHRC 740

the violation was not due to the operator’s unwarrantable failure. 19 FMSHRC 1646 (Oct. 1997)
(ALJ). The Commission granted the Secretary’s petition for review. For the reasons that follow, we
vacate the judge’s decision and remand for further consideration.

                                               I.

                             Factual and Procedural Background

    On January 24, 1994, MSHA Inspector Thomas Meredith cited JWR for a violation of

section 75.400 because of a trash accumulation in the No. 2 entry at JWR’s No. 7 Mine near
Birmingham, Alabama. 18 FMSHRC at 509. On January 31, Meredith conducted a follow-up
inspection to ascertain whether JWR had abated the conditions that led to the January 24 citation.
Id. While in the No. 3 entry, Meredith observed trash around a check curtain, which provided
ventilation to the face and separated the active outby section from the inactive inby section. Id.
Essentially, the check curtain ran across the top of a pile of trash dividing the pile in two parts. 111
F.3d at 916. The bulk of the trash, which extended for 250 feet and included paper bags, rags, rock
dust bags, wooden pallets and large cable spools, was on the inby inactive side of the curtain. 18
FMSHRC at 509. A smaller amount of trash, including a garbage bag containing sandwich
wrappers and oily rags, rock dust bags, a cardboard box, and sandwich bags, was on the outby active
side of the curtain. Id.; 16 FMSHRC at 1512; 111 F.3d at 916. The materials on both sides of the
curtain were combustible. 18 FMSHRC at 509.

    Inspector Meredith issued a withdrawal order and a citation charging a violation of § 75.400

because of the trash on both sides of the curtain. Id. at 509; 111 F.3d at 916. Meredith designated
the citation S&S2 and determined that it was the result of JWR’s unwarrantable failure to comply
with the standard.3

    JWR filed a notice of contest and a hearing was held before an administrative law judge.

The judge affirmed the citation as to the outby area but vacated the citation as to the inby area,
because the inby area was not in the “active workings” of the mine as specified by § 75.400. 16
FMSHRC at 1512. The judge concluded that the evidence was insufficient to support either the
S&S or unwarrantable failure designation of the citation based on the few items of trash that were in
the outby section. Id. at 1512-14.

     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.”

     3
      The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 30

U.S.C. § 814(d)(1), 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.”

                                      21 FMSHRC 741



    The Secretary appealed the judge’s S&S and unwarrantability determinations. The

Commission affirmed the judge’s determination that the violation was not S&S, holding that the
judge correctly refused to consider evidence of the non-violative trash accumulation on the inby
inactive side of the curtain. 18 FMSHRC at 510-11. With regard to the unwarrantable failure
determination, the Commission concluded that the judge also properly limited his consideration to
the trash accumulation in the outby active area. Id. at 511-13. The Commission further held that
JWR’s prior violation of § 75.400 and a remark by JWR’s longwall coordinator regarding JWR’s
cleanup efforts were insufficient to support the unwarrantable failure designation. Id.

    The Secretary appealed the Commission’s decision to the U.S. Court of Appeals for the

District of Columbia Circuit. The court affirmed the Commission’s holding that the violation was
not S&S and rejected the Secretary’s argument that in making that determination the Commission
should have considered the surrounding non-violative trash accumulation in the inby area. 111 F.3d
at 917-18. On the question of unwarrantability, the court concluded that the Mine Act was
ambiguous on whether the non-violative conditions could be considered. Id. at 914-15.
Accordingly, the court determined that it was required to defer to a reasonable interpretation of the
Secretary. Id. at 914-15, 919-20, citing Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-45 (1984). The court held that the Secretary’s interpretation, which allowed
consideration of conditions that do not violate health and safety standards, was a reasonable
construction of the Mine Act. 111 F.3d at 919-20. The court remanded the case to the Commission
to determine whether, applying the Secretary’s interpretation of the statute, “the record contains
sufficient evidence of causation and culpability to support an ‘unwarrantable failure’ finding.” Id. at
920.

     Following the court’s remand, the Commission vacated its prior decision and remanded the

proceeding to the judge to consider the non-violative accumulations in the inactive area of the mine
in determining whether the violation was unwarrantable. 19 FMSHRC at 1378. Specifically, the
Commission directed the judge to consider the “massive” accumulations in light of the factors that
the Commission may examine in determining whether a violation is unwarrantable, “including the
extent of a violative condition, the length of time that it has existed, whether the violation is obvious
or poses a high degree of danger, whether the operator has been placed on notice that greater efforts
are necessary for compliance and the operator’s efforts in abating the violative condition made prior
to the issuance of the citation or order.” Id. at 1379 (citations omitted).

   On remand, the judge stated :

                   Before proceeding with an analysis of the issues on remand it
           should be observed that two issues in this case have now been
           resolved through the appellate process, i.e., that the accumulations
           cited in the inactive area were not violations and that the violative
           accumulations in the active area were not the result of “unwarrantable
           failure” or high negligence based upon consideration of those
           violative conditions alone. Accordingly, those issues are not


                                       21 FMSHRC 742



             reconsidered here.

                     The limited issue on remand, then, is whether or not the non-
             violative accumulations were the result of operator negligence
             (culpability) and, if so, whether that negligence was of such an
             aggravated nature as to constitute more than ordinary negligence. If
             such non-violative accumulations were the result of such negligence,
             the issue then is whether the record contains sufficient evidence of
             causation to support an “unwarrantable failure” finding as to the
             violative condition.

19 FMSHRC at 1648-49 (footnote omitted).

    In addressing the non-violative accumulations, the judge noted that the duties of a mine

operator are defined by regulation and the absence of a legally defined duty may be considered on
the issue of negligence. Id. at 1650. The judge concluded that the operator was “at least minimally
negligent to have allowed the non-violative accumulations to exist.” Id. The judge considered the
amount of the trash accumulation and the length of time that it might have existed. Id. With regard
to the prior withdrawal order involving trash accumulations, the judge noted that it involved an
active area and would not have provided notice that the operator needed to clean up non-violative
trash accumulations. Id. The judge concluded that the facts fell short of establishing reckless
disregard or gross indifference with regard to the non-violative accumulation. Id. at 1650-51.
Finally, the judge found that the Secretary had failed to address the issue of causation, which was an
essential element in the court’s remand. Id. at 1651. However, the judge noted that, even if the
Secretary had a theory of causation, it would be irrelevant because the level of negligence was
minimal. Id. Thus, the judge concluded the level of negligence associated with the non-violative
accumulations “would not enhance the negligence in regard to the violative accumulations
sufficiently to justify unwarrantable failure findings.” Id.

    The Secretary appealed to the Commission, stating that the judge’s decision was legally

erroneous and not supported by substantial evidence, S. PDR at 1, and the Commission granted
review.

                                                II.

                                           Disposition

     The Secretary argues that the judge erred when he examined the operator’s negligence only

in relation to the non-violative accumulation. S. PDR at 10-11.4 Further, the Secretary argues that
when the judge found the operator’s negligence mitigated, he relied too heavily on the fact that the
accumulation in the inby area was not violative. Id. at 12-13. Rather than just looking at whether

     4
         The Secretary designated her petition for discretionary review as her brief.

                                        21 FMSHRC 743

the non-violative accumulations were unwarrantable, the Secretary argues, the judge should have
looked at the facts in relation to both the violative and non-violative accumulations to ascertain
whether the operator’s conduct was “aggravated.” Id. at 13-14. The Secretary contends that the
judge did not consider that the operator had received a withdrawal order for a trash accumulation in
an adjacent area just seven days before the issuance of the citation at issue. Id. at 15-16. The
Secretary argues that the judge failed to address or inadequately addressed other evidence relating to
the operator’s unwarrantable failure, including the operator’s knowledge of the violation and lack of
corrective action to clean it up. Id. at 16-20. Finally, the Secretary contends that she did not waive
the issue of causation and that, more significantly, the Commission’s remand order did not direct the
judge to separately consider the issue of causation. S. Reply Br. at 1-4.

     In response, JWR argues that substantial evidence supports the judge’s decision. JWR Resp.

Br. at 4-5. JWR further argues that the judge’s decision must be affirmed because the Secretary
failed to address the issue of “causation” with regard to the non-violative accumulations. Id. at 5-6.
Further, JWR contends that the judge did not err by looking primarily at the non-violative
accumulations in determining unwarrantability and that he properly considered the non-violative
accumulations in light of the unwarrantability factors. Id. at 6-8. JWR also argues that the prior
withdrawal order provided no notice relating to the accumulations in inactive areas that were legal.
Id. at 8-9. Lastly, JWR contends that, contrary to the Secretary’s argument, the judge considered
and addressed evidence relating to JWR’s knowledge of the accumulation, testimony regarding
JWR’s efforts to clean up the trash accumulation, and the length of time during which the trash had
accumulated. Id. at 9-11.

   We conclude that the judge erred by analyzing the operator’s conduct under the law of

negligence to the exclusion of any examination of the criteria that the Commission generally
considers in an unwarrantable failure analysis. Further, the judge misstated the issue before him on
remand and failed to consider the impact of the violative, as well as the non-violative, conditions.

     The judge defined the issue on remand as whether or not the non-violative accumulations

resulted from operator negligence and, if so, whether it was aggravated negligence. 19 FMSHRC at
1648-49. By focusing only on the non-violative accumulations, the judge erred. The primary issue
in this case since the judge’s initial decision has been the extent to which the non-violative
accumulations could be considered in conjunction with the violative accumulations to ascertain
unwarrantability. 5 See 18 FMSHRC at 510-513; 111 F.3d at 919-20. Even JWR concedes that “the
unwarrantability factors by definition apply only to the actual violative conditions, . . . which remain
the focal point of this entire matter.” JWR Resp. Br. at 4 n.3 (emphasis in original). Thus, it is

     5
       We disagree with the dissent that the judge was simply following the Commission’s

remand instructions when he examined only the non-violative accumulations. Slip op. at 13.
The remand clearly directed the judge to consider the non-violative accumulations “in light of the
other factors that the Commission may examine in determining whether a violation is
unwarrantable,” including various factors relating to the violative accumulations. 19 FMSHRC
at 1378-79.

                                       21 FMSHRC 744

apparent from the judge’s decision that the scope of his factual analysis was too narrow. The
judge’s overly restrictive examination of the trash accumulations led him to place undue emphasis
on the fact that those accumulations in the inby inactive areas were not in violation of the regulation
and, therefore, erroneously concluded that JWR’s “negligence was . . . strongly mitigated.” 19
FMSHRC at 1650.

    In addition to this clear error, the judge focused on traditional concepts of negligence —

causation and culpability — while largely ignoring the factors that the Commission directed him to
consider in its decision directing remand.6 The Commission instructed the judge to consider the
factors set forth in Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994), including “the
extent of [the] violative condition, the length of time that it has existed, whether the violation is
obvious or poses a high degree of danger, whether the operator has been placed on notice that greater
efforts are necessary for compliance and the operator’s efforts in abating the violative condition
made prior to the issuance of the citation or order.” 19 FMSHRC at 1379. While the judge
referenced these factors in his decision, 19 FMSHRC at 1649 n. 2, he made no considered analysis
of them in relation to the record evidence. For instance, the judge never discussed whether the
operator was put on notice of the trash accumulation as a result of the inby conditions or whether the
accumulation was obvious because of the inby conditions.7 The judge also does not appear to factor
into his analysis of the unwarrantability of the violation his own conclusions that management
“knew or should have known” of the inby trash and that the trash was extensive. 19 FMSHRC at
1650. Moreover, the judge’s error in focusing solely on the non-violative accumulations led him to
discount the prior withdrawal order resulting from trash accumulations in an adjacent entry
(“presumably in an active area,” id.). See Peabody Coal Co., 14 FMSHRC 1258, 1263-64 (Aug.

     6
       In addressing the court’s decision, the dissent has presented an overly narrow

impression of what the judge was required to do. Thus, we disagree with the dissent’s view that
the judge, by focusing on culpability and causation, was simply following remand instructions of
the D.C. Circuit that somehow altered or superseded the existing Commission test for
determining whether a violation is unwarrantable. Slip op. at 12, 13. The court’s reference to
causation and culpability occurs in the context of a more comprehensive discussion of
unwarrantability, with a citation to the Commission’s seminal decision in Emery Mining Corp., 9
FMSHRC 1997 (Dec. 1987). In addition, both the Secretary and JWR fully briefed and argued
the applicability of the Mullins factors to the court. In this circumstance, we do not read the
court’s references to causation and culpability in its remand instructions as anything more than a
shorthand reference requiring a comprehensive analysis to determine whether the violation was
the result of the operator’s unwarrantable failure. See 111 F.3d at 919-20.
7
The evidence suggests that, because of the inby conditions, the violation was obvious
and JWR must have been aware of it. For instance, the inspector testified without contradiction
that the operator had placed a ventilation curtain on top of the trash accumulation, splitting open
a garbage bag and spilling its contents on the outby side of the curtain. Tr. 19-20, 65. The
inspector testified that the accumulation that was outby the curtain was “just the continuation of
everything that was inby the curtain.” Tr. at 19.

                                      21 FMSHRC 745

1992) (repeated similar violations may be relevant to an unwarrantable failure determination to the
extent that they serve to put an operator on notice that greater efforts are necessary for compliance).

    JWR argues that the judge’s remand decision in which he addressed only the non-violative

inby accumulations must be read in conjunction with his July 1994 decision, in which he addressed
only the violative outby accumulations.8 See JWR. Br. at 6-7, 9-11. However, we vacated the prior
unwarrantability determination (19 FMSHRC at 1378) because the judge and the Commission had
applied an interpretation of unwarrantability that the court of appeals rejected. See 16 FMSHRC at
1513-14. The bifurcated approach suggested by JWR is contrary to the Secretary’s interpretation
approved by the court of appeals. Accordingly, it is necessary for the judge to evaluate the totality of
the operator’s conduct on remand, including both the violative and non-violative accumulations, in
order to make an unwarrantability determination.

    JWR also argues that, in his remand decision, the judge fully considered the record evidence

concerning unwarrantability. JWR R. Br. at 9-11. However, to the extent that the judge considered
this evidence, he did so only in weighing the operator’s negligence in relation to the non-violative
accumulations, which, as we have stated, was too narrow in scope.9

    In addition, although the issue was neither raised nor briefed by the parties, the dissent

questions whether JWR’s due process rights were violated because it did not have an opportunity to
adequately defend against “a retroactive application of the Secretary’s expansive interpretation of
section 104(d).” Slip op. at 14.10 There is good reason why JWR has not raised this issue. From the

     8
        The judge’s only consideration of key testimonial evidence concerning whether JWR

was on notice of the accumulations and what effort had been made to clean them up was in his
first decision that was vacated. See 16 FMSHRC at 1514.
9
Our dissenting colleagues err in quoting from the court’s decision (slip op. at 16) to
support their argument that the Secretary somehow improperly relies on non-violative conditions
to support an unwarrantability determination. As the dissent recognizes, this quotation pertains
to the Secretary’s S&S analysis, not the unwarrantability analysis at issue here. 111 F.3d at 916­

17. In contrast to the section of the opinion cited by the dissent, the court concluded, in a
    subsequent passage, that the Secretary’s interpretation of section 104(d)(1), 30 U.S.C.
    § 814(d)(1), to include consideration of inby, non-violative trash accumulations was
    “reasonable.” 111 F.3d at 920.
    10
    The dissent suggests (slip op. at 14 n. 8) that the judge’s passing reference to “due
    process” in regard to whether non-violative coal accumulations presented a hazard (19 FMSHRC
    at 1650 & n. 3) is sufficient to preserve this question for Commission review, even though no
    party has raised the issue. This approach is at odds with the Mine Act, 30 U.S. C.
    § 823(d)(2)(A)(iii), and with well-settled appellate procedures. See Wyoming Fuel Co., 16
    FMSHRC 1618, 1623 (Aug. 1994). While the dissent’s citation of the “due process” reference in
    the judge’s decision suggests that the judge’s concern was with “the Secretary’s new and
    expansive reading of section 104(d)(1),” the judge was actually referring to the question of the

                                       21 FMSHRC 746
    

beginning of this proceeding, MSHA cited JWR because it permitted trash accumulations on the inby
and outby sides of a check curtain. 18 FMSHRC at 509; Pl. Ex. 2 (Citation No. 3182848). MSHA
included with the citation its determination that the violation was the result of JWR’s unwarrantable
failure. 18 FMSHRC at 509. The dissent simply fails to accept the factual predicate of this
proceeding — which has always been that both the inby and outby accumulations were the basis for
the unwarrantability determination. Accordingly, the dissent’s suggestion that JWR did not have an
opportunity “to make a record” on the impact of the inby accumulations on the issue of
unwarrantable failure (slip op. at 15) is at odds with the history of the case. Moreover, the dissent’s
approach would have us ignore the D.C. Circuits’s decision, which adopted the Secretary’s
interpretation, reversed the Commission on this issue, and is the law of the case. This we will not
do.11

   Moreover, we have no difficulty rejecting the dissent’s concern that this amounts to an

impermissible retroactive application. See Sewell Co. Co. v. FMSHRC, 686 F.2d 1066, 1070 (4th
Cir. 1982) (“retroactive application of a novel principle expounded in an adjudicatory proceeding
does not infringe the rights secured by the due process clause”).12 We simply note that the issue has

operator’s negligence in allowing the non-violative accumulations to exist. 19 FMSHRC at 1650
& n. 3.
11
The dissent’s further suggestion that application of the Commission’s “reasonably
prudent person” test shields JWR from liability for unwarrantable failure is also misplaced. Slip
op. at 15-16 n. 10. The Commission’s reasonably prudent person test pertains to whether an
operator had fair notice of an agency’s regulatory interpretation. E.g., General Electric Co. v.
EPA, 53 F.3d 1324, 1330-31 (D.C. Cir. 1995); Ideal Cement Co.,12 FMSHRC 2409, 2415 (Nov.
1990) (interpreting and applying broadly worded standards). This case, in contrast, presents the
issue of whether the facts surrounding a violation establish aggravated conduct rising to the level
of unwarrantable failure. See, e.g., Emery Mining Corp., 9 FMSHRC 1997.

     12
        Commissioner Beatty notes that, to support their retroactivity/due process argument,

Commissioners Riley and Verheggen rely on their dissenting opinion, and his concurring
opinion, in Topper Coal Co., 20 FMSHRC 344, 371, 378-79 (Apr. 1998). In Topper,
Commissioner Beatty agreed with Commissioners Riley and Verheggen that it would be unfair
on review to apply a presumption that a violation was S&S where the Secretary’s counsel had
first argued for the application of a presumption in her post-hearing brief, thereby depriving the
operator the opportunity to adduce evidence at the hearing to rebut the presumption. Id.
Commissioner Beatty concludes that Topper is not controlling here, since it is distinguishable
from this case in several important respects. First, as shown above, unlike the operator in
Topper, JWR did have an opportunity to make a record on the impact of the inby accumulations
on the issue of unwarrantable failure. Although the Secretary’s theory of how those
accumulations might support a finding of unwarrantability necessarily changed as a result of the
judge’s initial decision, it is unlikely that the evidence that JWR would have introduced to show
that those accumulations were not indicative of unwarrantable failure would have been any

                                      21 FMSHRC 747

been fully briefed and argued to both the Commission and the D.C. Circuit. Additionally, as
discussed above, the Secretary’s retroactive application of its theory of unwarrantability has the
express approval of, and is in fact directed by, the reviewing court on appeal.

    In sum, because the judge did not analyze the unwarrantability factors and the operator

conduct that he was directed by the Commission to consider, his decision must be vacated and the
proceeding remanded. See Doss Fork Coal Co., 18 FMSHRC 122, 125-26 (Feb. 1996). On remand,
in making an unwarrantable failure determination for the violation at issue, the judge must consider
the violation and “mine conditions beyond the violation itself, including conditions not themselves
violating mine safety and health standards.” 111 F.3d at 920.

different. More importantly, Topper involved a far different issue, the retroactive application of
a presumption — a procedural device designed to “‘shift[] the burden of producing evidence.’”
Id. at 378 (quoting 2 McCormick on Evidence § 343, at 454) (emphasis in original). This case,
by contrast, involves the “retroactive application of a novel principle expounded in an
adjudicatory proceeding,” which has been consistently held not to violate due process rights.
Sewell Coal Co. v. FMSHRC, 686 F.2d at 1069-70 (citing NLRB v. Bell Aerospace Co., 416 U.S.
267 (1974); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969); SEC v. Chenery Corp., 332 U.S.
194 (1947)); see also Molina v. INS, 981 F.2d 14, 23 (1st Cir. 1992) (“retroactive application of
new principles in adjudicatory proceedings is the rule, not the exception.”) (citing SEC v.
Chenery, 332 U.S. 194 (1947)).

                                       21 FMSHRC 748



                                            III.

                                        Conclusion

   For the foregoing reasons, we vacate the judge’s decision and remand the proceeding to the

judge for further consideration consistent with this decision.

                                         Mary Lu Jordan, Chairman




                                         Marc Lincoln Marks, Commissioner




                                         Robert H. Beatty, Jr., Commissioner




                                     21 FMSHRC 749

Commissioners Riley and Verheggen, dissenting:

    The majority fails to provide a meaningful basis for its remand order sending this case back

to the judge once again. We therefore respectfully dissent. For the reasons set forth below, we
would affirm the judge’s decision.

    In a decision issued on May 2, 1997, the U.S. Court of Appeals for the District of Columbia

Circuit remanded this case to the Commission with instructions “to determine whether, applying the
Secretary’s interpretation of the statue, the record contains sufficient evidence of causation and
culpability to support an ‘unwarrantable failure’ finding.” Secretary of Labor v. FMSHRC, 111 F.3d
913, 920 (D.C. Cir. 1997).1 The Commission, in turn, issued its decision and instructions to the
administrative law judge as follows:

           Pursuant to the court’s order, we vacate the judge’s unwarrantable
           determination and remand to the judge to consider the non-violative
           accumulations in the inactive area of the mine. The judge is to
           consider these accumulations, which his decision refers to as massive,
           in light of the other factors that the Commission may examine in
           determining whether a violation is unwarrantable, including the extent
           of a violative condition, the length of time that it has existed, whether
           the violation is obvious or poses a high degree of danger, whether the
           operator has been placed on notice that greater efforts are necessary for
           compliance and the operator’s efforts in abating the violative condition
           made prior to the issuance of the citation or order.

19 FMSHRC at 1378-79 (citations omitted).

    In accordance with these instructions, the judge addressed the non-violative trash

accumulations in the inactive area of the mine. 19 FMSHRC at 1648-49. He considered those facts
and circumstances relevant to a determination of unwarrantable failure, including the extent and
duration of the accumulations, and found that the operator “was not without negligence in allowing
these non-violative accumulations to exist.” Id. at 1650. However, as to culpability, the judge
concluded that the operator’s conduct, while negligent, did not rise to the level of aggravated
conduct2 because there was no legal duty on the part of the operator to prevent such accumulations.

     1
       According to the court, the Secretary’s interpretation of section 104(d)(1) of the Mine

Act allows consideration of “mine conditions beyond the violation itself, including conditions
not themselves violating mine safety and health standards,” in determining whether a violation is
the result of unwarrantable failure. 111 F.3d at 920.
2
Unwarrantable failure is defined as aggravated conduct constituting more than ordinary
negligence, and is characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Emery Mining Corp.,

                                      21 FMSHRC 750

19 FMSHRC at 1650. Finally, the judge noted that the Secretary failed to offer any evidence on the
issue of causation, and considered this failure an abandonment of her claim and a default. Id. at
1651.

    We find that the judge’s decision closely adheres to both the court’s and the Commission’s

instructions, which are the binding law of the case. See Lion Mining Co., 19 FMSHRC 1774, 1777
(Nov. 1997). The judge limited his inquiry on remand to the non-violative trash accumulations in
the inactive area of the mine, as directed by the Commission. 19 FMSHRC at 1648-49. He also
fully considered those factors, as directed by the Commission, relevant to determining
“unwarrantable failure,” including extent, duration, notice, and efforts to abate. Id. at 1650.

      The judge’s finding with respect to the operator’s culpability, made at the direction of the

appeals court, is also legally sound. It is undisputed that the operator had no legal duty to remove or
clean up trash in the inactive workings of the mine. In the absence of a legal duty, there can be no
finding of aggravated conduct. See Lafarge Construction Materials, 20 FMSHRC 1140, 1148 (Oct.
1998) (“The aggravated conduct required for a finding of unwarrantable failure is the kind of conduct
that . . . results in a breach of duty.”). The appeals court also directed the Commission (and hence,
the judge) to make a finding with respect to causation (111 F.3d at 920), but on remand the Secretary
declined to address the issue. 19 FMSHRC at 1651. Since the Secretary failed to adduce any
evidence with respect to causation, which the appeals court specifically directed the Commission to
consider in its unwarrantability determination, she failed to meet her burden of proof in this case.
Peabody Coal Co., 18 FMSHRC 494, 499 (Apr. 1996) (“Commission precedent has established that
the Secretary bears the burden of proving that an operator’s conduct, as it relates to a violation, is
unwarrantable.”). On this basis alone we would affirm the judge’s decision.

    The majority, however, asserts that the judge committed two errors, neither of which have

any basis in the record before us. First, our colleagues assert that “the judge erred by analyzing the
operator’s conduct under the law of negligence to the exclusion of any examination of the criteria
that the Commission generally considers in an unwarrantable failure analysis.” Slip op at 5. The
judge, they argue, “focused on traditional concepts of negligence — causation and culpability —
while largely ignoring the factors that the Commission directed him to consider.” Id. at 6.

    The judge, however, cannot be faulted for “focusing” on the “traditional” negligence

concepts of causation and culpability for the simple reason that the District of Columbia Circuit
specifically directed the Commission to bring such a focus to bear on this case. Indeed, the judge
was duty bound to “determine whether . . . the record contains sufficient evidence of causation and
culpability to support an ‘unwarrantable failure’ finding.” 111 F.3d at 920. Nor can it be said that
the judge failed to examine the criteria used by the Commission to weigh allegations of
unwarrantable failure. In fact, the judge analyzed a number of the factors as directed by the
Commission. As to extent and duration of the non-violative trash accumulations, the judge found

9 FMSHRC 1997, 2001, 2003-04 (Dec. 1987); Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 194 (Feb. 1991).

                                       21 FMSHRC 751

them to be extensive and that some of the materials may have accumulated over a period as long as a
week. 19 FMSHRC at 1650. As to notice, the judge acknowledged that another withdrawal order
had been previously issued for accumulations in an adjacent entry, but found that this order would
not have put the operator on notice that accumulations in an inactive area of the mine had to be
removed. Id. Finally, with respect to abatement efforts, the judge found no evidence that the
operator attempted to clean up the non-violative accumulations. Id. To say that the judge “largely
ignor[ed] the factors,” or “made no considered analysis” of them (slip op. at 6), is simply inaccurate.3

    Secondly, our colleagues argue that the judge erred “[b]y focusing only on the non-violative

accumulations.” Slip op. at 5. Yet, this is precisely what we directed the judge to do. The
Commission’s remand instructions direct “the judge to consider the non-violative accumulations in
the inactive area of the mine,” and do not refer to the violative accumulations in the active outby
section.4 19 FMSHRC at 1378. Notwithstanding these instructions, our colleagues argue that the
non-violative conditions should have been considered “in conjunction with” the violative conditions,
since even the operator concedes that this case is really about whether the latter is unwarrantable.
Slip op. at 5. Clearly, the judge recognized this when he concluded that his findings with respect to
the non-violative accumulations “would not enhance the negligence in regard to the violative
accumulations sufficient to justify unwarrantable failure findings.” 19 FMSHRC at 1651. Based on
the Commission’s own instructions,5 the judge properly limited his consideration to the non-violative
conditions.

     3
        A judge is not required to consider all of the unwarrantability factors, but only those

that are relevant to the facts and circumstances of a particular case. Lafarge, 20 FMSHRC at
1147. It is also worth noting that our instructions were at best less than a model of clarity, if not
downright confusing and inconsistent with the direction of the court. While we directed the judge
to consider the non-violative conditions, our instructions with respect to the factors refer only to
violative conditions, not non-violative conditions. See 19 FMSHRC at 1379 (directing the judge
to consider “the extent of a violative condition, the length of time it has existed, whether the
violation is obvious or poses a high degree of danger . . . and the operator’s efforts in abating the
violative condition.”) (emphases added). Thus, even if the judge had declined to give any
consideration to the factors — which he most certainly did not in this case — his decision would
have been consistent with the Commission’s remand order, and he would not have committed
any error.
4
Nonetheless, our colleagues, with the benefit of hindsight, now direct the judge to
evaluate “both the violative and non-violative accumulations” (slip op. at 7) despite the fact our
original instructions provided no such direction.
5
If any deficiency is to be found here, it is not in the judge’s decision but rather in the
lack of clarity in our original instructions to the judge. The majority attempts to explain these
instructions as follows: “The remand clearly directed the judge to consider the non-violative
accumulations ‘in light of the other factors that the Commission may examine in determining
whether a violation is unwarrantable,’ including various factors relating to the violative
accumulations.” Slip op. at 5 n.5 (quoting 19 FMSHRC at 1379). What exactly this means is
hardly clear. In fact, we find it as confusing and inconsistent as we find the original remand
instructions.

                                       21 FMSHRC 752



    The majority’s remand is all the more unnecessary given the judge’s ruling on causation. In

the unlikely event, based on the majority’s remand instructions, the judge reverses his culpability
finding, the result of his decision will remain unchanged. He still has no basis for making a finding
on causation, because the Secretary has provided none.6 The Secretary claims she did not waive the
causation issue, but at the same time inconsistently argues that, in fact, she need not address it. S.
Resp. Br. at 1-3 & n.2. According to the Secretary, unwarrantable failure cases have never required a
showing of causation separate from culpability. Id. However, the appeals court clearly required such
a showing in this case.7 The Secretary’s complaint that such a showing is unnecessary is a complaint
more appropriately directed at the court. The judge in this case, however, was duty bound to follow
the law of the case and make a determination on causation.

      Even had the judge been able to make such a finding, however, his analysis would still not

have been complete. If he had found that the violation was due to the operator’s unwarrantable
failure, he still would have been required to determine whether the operator was ever afforded the
opportunity to defend itself against the Secretary’s interpretation of the statute (i.e., that non-
violative conditions should be considered in determining unwarrantable failure), or whether instead
the operator’s due process rights would be violated by what would amount to a retroactive
application of the Secretary’s expansive interpretation of section 104(d). See 19 FMSHRC at 1650
n.3 (“this issue was first raised by the Secretary on appellate review and was not squarely presented
at trial . . . . Because of the result in this case, however, ‘due process’ concerns in this regard are
moot”).8 As the Supreme Court has held, “[r]etroactivity is not favored in the law,” Bowen v.

     6
       Our colleagues inexplicably decline to address directly the issue of causation in their

opinion, even though it is one of the two issues the court directed the Commission to consider.
Instead, our colleagues claim in a footnote that the court’s specific direction to make findings on
causation is merely a “shorthand reference” for a comprehensive unwarrantable failure analysis.
Slip op. at 6 n.6. In other words, the majority claims that the court said what it really did not
mean.
7
Notwithstanding the arguments of the Secretary and the majority to the contrary, the
appeals court clearly directed the Commission to make a specific finding on causation, namely,
to “determine whether . . . the record contains sufficient evidence of causation.” 111 F.3d at 920.
Indeed, it is clear that the court envisioned causation to be an integral element of an
unwarrantable failure analysis. Section 104(d)(1) requires the Secretary to find “such violation to
be caused by an unwarrantable failure of [the] operator to comply with such mandatory health
and safety standards.” 30 U.S.C. § 814(d)(1) (emphasis added). According to the court, the
language of this section “directs decisionmakers to consider the cause of the violation.” 111 F.3d
at 920 (emphasis added).
8
On this point, the majority states that the judge’s due process concern was not with the
Secretary’s interpretation, but that instead he “was actually referring to the question of the
operator’s negligence in allowing the non-violative accumulations to exist.” Slip op. at 7 n.10.
This assertion is logically flawed. The judge on remand would never have even passed on “the
operator’s negligence in allowing the non-violative accumulations to exist” had it not been for

                                       21 FMSHRC 753

Georgetown University Hosp., 488 U.S. 204, 208 (1988) (citations omitted), a maxim the Court has
repeatedly reaffirmed. Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 946 (1997); Lynce
v. Mathis, 519 U.S. 433, 439 (1996); Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994). Cf.
Topper Coal Co., 20 FMSHRC 344, 371, 378-79 (Apr. 1998) (majority of Commissioners rejecting
retroactive application of S&S presumption because operator “had no notice” of the Secretary’s
theory at trial (Commissioner Beatty, concurring with Commissioners Riley and Verheggen)).

    As the majority concedes (slip op. at 8-9), the Secretary failed to advance her interpretation in

the adjudicatory proceeding in which the record of the case was made. The operator was never
presented at trial with the issue of how non-violative conduct could be used by the Secretary to
prove unwarrantable failure, nor was the operator ever given the opportunity to defend itself against
an allegation based on such a theory. Put another way, as we review on appeal the Secretary’s new
interpretation of section 104(d)(1), we have no evidentiary record adduced at trial addressing the
elements of the Secretary’s theory.9 To now apply this theory against the operator without providing
it any opportunity to make a record to the contrary we find unfair and inequitable.10

the Secretary advancing her new interpretation of section 104(d)(1) on appeal to the D.C. Circuit
and the Commission. The majority also states that our focus on due process concerns “would
have [the majority] ignore the D.C. Circuit’s decision, which adopted the Secretary’s
interpretation, reversed the Commission on this issue and is the law of the case.” Slip op. at 8.
Our concerns, however, are not inconsistent with the law of the case as handed down by the D.C.
Circuit. Instead, while acknowledging that the Secretary’s interpretation is the law of the case,
like the judge, we recognize that the next step in the analysis — a step the D.C. Circuit never had
to reach and a step the majority ignores — is to determine whether retroactive imposition of any
legal requirements arising from the Secretary’s interpretation conforms to the law of retroactivity
as set forth in Bowen and its progeny.
9
As the majority concedes, this issue has only been “briefed and argued to both the
Commission and the D.C. Circuit” (slip op. at 9), but not tried before a judge in a Commission
hearing.
10
On the question of notice, which is closely related to the problem of retroactivity, the
Commission has applied an objective standard, i.e., the reasonably prudent person test. See, e.g.,
Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990); Otis Elevator Co., 11 FMSHRC 1896,
1906 (Oct. 1989), aff’d, 921 F.2d 1285, 1291 (D.C. Cir. 1990); Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (Dec. 1982). Under this legal framework, we find it difficult, if not
impossible, to imagine circumstances that could support a finding that a reasonably prudent
person familiar with the mining industry would have been aware of the Secretary’s interpretation
here, particularly when a majority of this Commission initially found it to be an impermissible
reading of the statute. 18 FMSHRC at 512.

                                       21 FMSHRC 754



     Finally, we believe that a remand is unwarranted here because this case has simply gone on

too long. It has been over five years since the Secretary cited the operator. The reason this litigation
has taken so long is due at least in part to the Secretary’s failure at the outset to appeal the judge’s
initial determination that the inby accumulation was non-violative. See 18 FMSHRC at 514
(Commissioner Riley, concurring). Since then, the Secretary has spent years trying to fit the square
peg of non-violative conduct (accumulations outside the active workings) into the round hole of a
section 75.400 violation applying only to active workings. At every step of the process, the
Commission and the courts have warned of the inadequacy of this regulation, warnings which bear
repeating one more time. As the District of Columbia Circuit stated when referring to the significant
and substantial finding in the Commission’s original decision:

           Underlying the Secretary’s arguments, both statutory and evidentiary,
           is [her] concern that dangerous accumulations of trash outside active
           workings will go unchecked if the Commission’s decision is allowed
           to stand. If collections of trash outside active workings can be both
           permissible and hazardous, the fault lies neither with the Mine Safety
           Act nor with the Commission’s legal reasoning, but with the
           Secretary’s combustible materials regulation, which forbids
           accumulations of combustible materials in active workings. The
           regulation does not prohibit such accumulations in inactive areas. We
           think . . . “the regulation may not fully effectuate statutory purposes.
           However, if the Secretary sincerely believes the regulation is deficient,
           [she] should clarify its language through rulemaking, rather than ask
           the [decisionmaker] to rewrite the regulation by adjudication.”

111 F.3d at 918 (citations omitted). These words remain equally applicable today, where
accumulations outside active workings but near enough to present a risk to miners can still be both
“permissible and hazardous.” Id.

                                       21 FMSHRC 755



   Rather than perpetuate this misbegotten litigation, in the interests of justice and for all of the

foregoing reasons, we would affirm the judge’s decision.

                                           James C. Riley, Commissioner




                                           Theodore F. Verheggen, Commissioner




                                        21 FMSHRC 756

Distribution

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

David M. Smith, Esq.
J. Alan Truitt, Esq.
Warren B. Lightfoot, Jr., Esq.
Maynard, Cooper & Gale, PC
2400 AmSouth/Harbert Plaza
1901 Sixth Avenue North
Birmingham, AL 35203

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

                                 21 FMSHRC 757