Jim Walter Resources, Inc.

Plain-English summary

Jim Walter Resources operated an underground coal mine where line curtains were used to route methane away from a tailgate methane monitor. The Commission affirmed violations for failing to maintain the monitor in proper operating condition and failing to take required measures after methane reached actionable levels. It held that an operator cannot avoid the regulation by deliberately preventing a monitor from detecting methane, and that constructive knowledge can satisfy the knowledge requirement when the operator's conduct created the ignorance. The Commission also affirmed unwarrantable-failure findings because the conduct was intentional, production-driven, and exposed miners to a serious hazard.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.342(a)(4); 30 C.F.R. § 75.323(b)(1)
• Outcome: The violations and unwarrantable-failure findings were affirmed.
• Key point: Deliberately routing methane away from a required monitor does not excuse noncompliance with methane-control requirements or prevent an unwarrantable-failure finding.

Full text (FMSHRC public release)

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

                                    November 14, 1997

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 95-140
:
JIM WALTER RESOURCES, INC. :

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

                                        DECISION

BY THE COMMISSION:

    These consolidated civil penalty proceedings arise under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. ' 801 et seq. (1994) (AMine Act@ or AAct@). At issue is
Commission Administrative Law Judge T. Todd Hodgdon=s determination that Jim Walter
Resources, Inc. (AJWR@ or AJim Walter@), violated 30 C.F.R. '' 75.323 and 75.342 and that the
violations were the result of JWR=s unwarrantable failure.1 18 FMSHRC 21 (January 1996)
(ALJ). The Commission granted JWR=s petition for discretionary review (APDR@) challenging
those findings. For the reasons that follow, we affirm the judge=s decision.

                                             I.

                            Factual and Procedural Background

    The No. 2 longwall in JWR=s No. 7 Mine, an underground coal mine in Alabama, was

inspected by Kirby Smith, an MSHA inspector, on August 25, 1994. 18 FMSHRC at 23. While
walking the length of the No. 2 longwall, from headgate to tailgate, at about the longwall=s mid-
point Smith began noticing that plastic line curtains had been rolled out on the mine floor. Id.; Tr.
40-41, 145. The width of the curtain covered the area from the longwall chain line, across the
longwall pontoons, to the place where the longwall shield jacklegs joined the pontoons. 18

   1
     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
Aan unwarrantable failure of [an] operator to comply with . . . mandatory health or safety
standards.@

Page 2

FMSHRC at 23. Because there was loose coal, water and muck on the mine floor, the inspector
was not certain that the curtains were continuously deployed on the floor. Tr. 46-47.

    Farther down the longwall, Smith saw that line curtains had also been hung on the

longwall from where the jacklegs joined the shield down to the pontoons. 18 FMSHRC at 23; Tr.
47-48. The curtains were so hung for a length of 20 or 25 shields, past shield 184, the final
shield. Id.; Gov=t Ex. 4. Thus, the curtain extended past the tailgate methane monitor, located
between shields 183 and 184. 18 FMSHRC at 23; Tr. 49, 51; Gov=t Ex. 1.2 Methane monitors
are required to sound an alarm when detecting 1% or more of methane and trigger an automatic
shut down of power to the longwall when 2% or more methane is detected. 30 C.F.R. ' 75.342.

    During his inspection Smith took methane measurements with his hand-held detector. 18

FMSHRC at 23; Tr. 34-35. At roughly the mid-point of the longwall, he detected .4% methane
12 inches from the mine roof and 1.1% methane 12 inches from the mine floor. 18 FMSHRC at
23; Tr. 80. Behind the curtains hanging from shield 184 he detected 2.2% methane, while at the
tailgate sensor he detected 1.2% methane. 18 FMSHRC at 23; Tr. 38-39, 61. Those
measurements were later confirmed by bottle samples that Smith took at the time of his
inspection. Id.; Gov=t Ex. 3.

     During the course of his inspection, the inspector learned that JWR had been having

problems controlling methane bleeding from the mine floor at the No. 2 longwall. Tr. 42-43, 46.
The effect of JWR=s deployment of line curtains was to direct the methane along the floor and
behind the curtains hung from the shields, diverting the methane away from the tailgate methane
monitor and into the longwall gob and tailgate entry, which was serving as a return. Tr. 25, 43,
51-53, 69-70, 149. The deployment of the line curtains on the mine floor explained why, at the
mid-point of the longwall, Smith found the level of methane at the mine floor to be higher than at
its roof. Tr. 144-45. Methane, being lighter than air, is normally found in higher concentrations
closer to the mine roof. Tr. 145.

   2
       There was also a methane sensing element on the longwall shear. Tr. 26-28; Gov=t Ex.

1.

                                             2

Page 3

   The inspector consequently issued Order No. 3189434 under section 104(d)(2), 30 U.S.C.

' 814(d)(2), alleging that JWR violated section 75.323.3 18 FMSHRC at 23-24; Gov=t Ex. 2 at 1.

   3
       Section 75.323(b) provides:

                    (1) When 1.0 percent or more methane is present in a
            working place or an intake air course, . . . C
                    (i) Except intrinsically safe atmospheric monitoring systems
            (AMS), electrically powered equipment in the affected area shall be
            deenergized, and other mechanized equipment shall be shut off;
                    (ii) Changes or adjustments shall be made at once to the
            ventilation system to reduce the concentration of methane to less
            than 1.0 percent; and
                    (iii) No other work shall be permitted in the affected area
            until the methane concentration is less than 1.0 percent.
                    (2) When 1.5 percent or more methane is present in a
            working place or an intake air course, including an air course in
            which a belt conveyor is located, or in an area where mechanized
            mining equipment is being installed or removed C
                    (i) Everyone except those persons referred to in ' 104(c) of
            the Act shall be withdrawn from the affected area; and
                    (ii) Except for intrinsically safe AMS, electrically powered




                                             3

Page 4

Section 75.323(b) sets forth the actions that must be taken when various maximum methane
levels are exceeded. When 1.0% or more methane is present in a working place, electrical
equipment must be deenergized and ventilation changes made to reduce methane below 1.0%,
with no work permitted until methane is so reduced. 30 C.F.R. ' 75.323(b)(1). At trial, the
Secretary contended that, because the operator failed to take the prescribed actions until the
inspector alerted JWR personnel to his measurements of impermissibly high levels of methane,
JWR violated the regulation. S. Post Hearing Br. at 9-10.

           equipment in the affected area shall be disconnected at the power
           source.




                                            4

Page 5

     The inspector also issued Order No. 3189435 under section 104(d)(2) charging a violation

of section 75.342(b),4 on the ground that by deploying line curtain to divert accumulations of
methane outby the tailgate methane sensor, JWR rendered inaccurate the methane monitor=s
response to methane along the longwall face. 18 FMSHRC at 24; Gov=t Ex. 5. At trial, the
Secretary alleged that JWR=s use of line curtain in such a manner violated section 75.342(a)(4)=s
requirement that A[m]ethane monitors shall be maintained in permissible and proper operating
condition@ Tr. 216-17. JWR contended that, because there was nothing physically wrong with
the tailgate methane monitor, the regulation had not been violated. JWR Post Hearing Br. at 4.

    The judge rejected JWR=s argument that there was no violation of section 75.342. 18

FMSHRC at 25-26. The judge concluded that, while JWR had met many of the requirements of
the regulation, by deliberately directing the methane away from the tailgate methane monitor JWR
had intentionally precluded the monitor from performing its function. Id. Because the judge
found JWR=s actions to be the equivalent of rendering the monitor inoperable, he determined that
JWR had failed to maintain the monitor in proper operating condition. Id.

   4
       Section 75.342 provides:

                     (a)(1) MSHA approved methane monitors shall be installed
            on all face cutting machines, continuous miners, longwall face
            equipment, loading machines, and other mechanized equipment
            used to extract or load coal within the working place.
                     (2) The sensing device for methane monitors on longwall
            shearing machines shall be installed at the return air end of the
            longwall face. An additional sensing device also shall be installed
            on the longwall shearing machine, downwind and as close to the
            cutting head as practicable. . . .
                     ....
                     (4) Methane monitors shall be maintained in permissible
            and proper operating condition . . . .
                     ....
                     (b)(1) When the methane concentration at any methane
            monitor reaches 1.0 percent the monitor shall give a warning signal.
                     (2) The warning signal device of the methane monitor shall
            be visible to a person who can deenergize the equipment on which
            the monitor is mounted.
                     (c) The methane monitor shall automatically deenergize the
            machine on which it is mounted when C
                     (1) The methane concentration at any methane monitor
            reaches 2.0 percent; or
                     (2) The monitor is not operating properly.


                                             5

Page 6

    The judge determined that JWR had also violated section 75.323. Id. at 26-27. The judge

found, based on the testimony and the relevant longwall section report, that the equipment at the
longwall was energized when the inspector took his methane readings and issued the orders. Id.
at 26 n.2. The judge concluded that JWR Ashould have known that methane of 1.0 percent or
more was present in the working area,@ because either Asomeone with a methane detector could
have taken a reading, or . . . one of the monitors on the longwall could have sensed it.@ Id. at 26-

27. The judge held that JWR violated the regulation because A[h]aving taken steps to make the
    methane monitor not operate properly, Jim Walter cannot now claim that it did not comply with
    Section 75.323 because it did not know that methane was present. The fact is that it would have
    but for its actions to avoid knowing.@ Id. at 27.

    In addition, the judge concluded that both violations resulted from JWR=s unwarrantable
    

    failure. Id. at 28-29. In determining that the violations were unwarrantable, the judge found the
    line curtain to have been intentionally deployed for the purpose of preventing the detection of
    methane in order that longwall operations could continue. Id. The judge also found it significant
    that none of the non-JWR witnesses had ever heard of using line curtain in that fashion. Id. at 29.

                                             6
    

Page 7

                                              II.

                                        Disposition

   A.       Violations

            1.     Section 75.342

    JWR contends that the judge erred in finding that the placement of the line curtain along

the longwall face constituted a violation of section 75.342, as nothing in the regulation prohibits
using line curtain to direct methane away from a methane sensing unit and its tailgate methane
monitor met all the requirements of section 75.342, including the maintenance requirement of
section 75.342(a)(4). JWR PDR at 2-4.5 The Secretary argues that, because the judge
interpreted section 75.342 in a manner which furthers the purpose of that regulation, his decision
should be upheld. S. Am. Br. at 6-9.

      The issue before us is whether the judge correctly concluded that an operator violates

section 75.342 by intentionally routing air the operator has reason to believe contains methane on
a path which prevents a monitor from detecting that methane. The Commission has recognized
that, where the language of a regulatory provision is clear, the terms of the provision must be
enforced as they are written unless the regulator clearly intended the words to have a different
meaning. See, e.g., Utah Power & Light Co., 11 FMSHRC 1926, 1930 (October 1989) (citing
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)).
It is only when the meaning is doubtful or ambiguous that the issue of deference to the Secretary=s
interpretation arises. See Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984).
Similarly, if a statute is clear and unambiguous, effect must be given to its terms. Chevron, 467
U.S. at 842-43. Accord Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir.
1994).

    Section 75.342(a)(4)=s requirement that A[m]ethane monitors shall be maintained in

permissible and proper operating condition@ is derived from section 303(l) of the Mine Act, 30
U.S.C.' 863(l), which provides that methane monitors Ashall be kept operative and properly
maintained.@ The language of section 75.342(a)(4) and section 303(l) of the Act is sufficiently
clear to establish that JWR violated the standard by using line curtain to deflect methane away
from a methane monitor. In the absence of statutory or regulatory definitions or technical usage,
we apply the ordinary meanings of words chosen by the drafters. Peabody Coal Co., 18
FMSHRC 686, 690 (May 1996). The term Amaintain@ is not defined in 30 C.F.R. Part 75, but one
of the dictionary meanings is Ato keep in a state of repair, efficiency or validity.@ Webster=s Third
New International Dictionary (Unabridged) 1362 (1986). Similarly, the dictionary meaning of
the term Acondition,@ which is likewise undefined in 30 C.F.R. Part 75, is not limited to merely
5
JWR designated its PDR as its brief.

                                              7

Page 8

physical attributes, but includes Aa mode or state of being.@ Id. at 473. Lastly, the statutory term
Aoperative@ is not defined in the Mine Act, but its primary dictionary definition is Aproducing an
appropriate or designed effect.@ Id. at 1581.

    Any methane monitor knowingly deployed in a fashion that renders it unable to

accomplish its intended purpose C to detect and alert miners to the presence of methane C cannot
be said, under the terms of the regulation, to be Ake[pt] in a state of . . . efficiency@ or in a Aproper
operating state of being.@ Likewise, such a monitor is in violation of the standard=s statutory
source, as in such an instance the monitor would not be capable of Aproducing the appropriate or
designed effect@ of alerting miners when methane reaches dangerous levels. Because JWR
deployed its longwall tailgate methane monitor in a manner that defeated its intended purpose, we
conclude that the monitor was not being Amaintained@ in Aproper operating condition.@ Cf.
Western Fuels-Utah, Inc., 19 FMSHRC 994, 998 (June 1997) (where dictionary definitions
include functional component indicating that term means that item will be adequate to achieve
intended purpose, functional interpretation is consistent with plain meaning of language of
standard).

    Interpreting section 75.342 to proscribe deflecting methane from a monitor is also

consistent with the intent of the standard=s drafters. The language of section 303(l) of the Mine
Act was carried over without change from section 303(l) of the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. ' 863(l) (1976). Its legislative history reveals the emphasis
Congress placed on the function served by methane monitors:

            Experience has shown that in almost every instance when ignitions
            and explosions occur, it was because dangerous concentrations of
            methane accumulate before miners are aware of the condition.
            Thus, the need for a methane monitor on electric face equipment,
            particularly the continuous miner and cutting machine, is evident.
            Even more important, it must be kept operative to be effective.
            The monitor would include a methane detector or sensing device
            which would continuously sample the atmosphere . . .

S. Rep. No. 411, 91st Cong. 1st Sess. 60 (1969), reprinted in Senate Subcommittee on Labor,
Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I, Legislative History of the

                                               8

Page 9

Federal Coal Mine Health and Safety Act of 1969, at 186 (1975) (emphasis added).6
Accordingly, we affirm the judge=s conclusion that JWR violated section 75.342.
2. Section 75.323

    According to JWR, section 75.323 is only violated when an operator fails to act upon

learning methane exceeds the levels set forth in that standard. JWR PDR at 6. JWR argues that,
because it did not know of the excessive methane at the No. 2 longwall until the inspector pointed
out the condition, it did not violate section 75.323. Id. at 5-6. JWR also contends that substantial
evidence does not support the judge=s conclusion that the longwall was energized at the time the
inspector issued the orders. Id. at 4-5.

     The Secretary takes the position that Smith=s detection of excessive methane established a

violation, based on the judge=s finding that JWR would have known that methane was present but
for its actions to avoid knowing. S. Am. Br. at 10-11 & n.7. The Secretary also maintains that
substantial evidence supports the judge=s finding that the longwall was energized when the
methane was found by the inspector. Id. at 10.

   6
       MSHA similarly explained its intent in promulgating section 75.342 as part of revising

its ventilation regulations in 1992, stating that A[c]onstant monitoring of methane during mining
activities is an important safeguard against methane ignitions and explosions that could endanger
miners.@ 57 Fed. Reg. 20,868, 20,890 (1992) (emphasis added). Consequently, MSHA based its
adoption of some of the requirements of section 75.342 on its desire to Amaximize the
effectiveness of monitoring sensors,@ and Aensure that monitors provide accurate monitoring of
methane.@ Id.

                                             9

Page 10

    Section 75.323(b)(1) obligates an operator to take specified actions A[w]hen 1.0 percent

or more methane is present in a working place or an intake air course.@ Taken literally, the
standard would seem to be applicable upon the mere presence of methane above that level.
However, MSHA has taken the position that the provision should not be read literally.7 In further
revising its ventilation regulations in 1996, but leaving untouched the language at issue in section
75.323, MSHA agreed with comments submitted in that rulemaking that

           a methane problem cannot be corrected unless it has been detected
           and that the mere presence of methane does not constitute a
           violation [of section 75.323]. Only the failure to [take the actions
           required by section 75.323] once being made aware of the presence
           of methane in excess of allowable levels is a violation.

61 Fed. Reg. 9,764, 9,778 (1996). Consequently, JWR can only be held to have violated section
75.323 if there is substantial evidence to support the conclusion that it had knowledge of
excessive methane and failed to take any of the required actions.8
a. Whether Section 75.323(b) Requires Actual Knowledge of
Methane

   7
      Section 75.323(b)(1) was promulgated by MSHA in 1992 as part of a revision of its

ventilation regulations. Prior to that, the required actions were expressly conditioned upon the
presence of methane found by a test. See 30 C.F.R. ' 75.308 (1991) (methane accumulations in
face area).
8
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). ASubstantial evidence@ means A>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 (November 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).

                                            10

Page 11

    The judge never reached the question of whether JWR had actual knowledge of the

presence of methane at actionable levels prior to the time that Inspector Smith issued the order
alleging a violation of section 75.323. Rather, the judge concluded that any lack of such actual
knowledge was the result of JWR=s own actions in preventing the tailgate monitor from detecting
methane. 18 FMSHRC at 27. JWR does not contest that conclusion, which is supported by
substantial evidence.9

    We interpret the judge=s conclusion as a finding that JWR had constructive knowledge of

the actionable levels of methane. JWR, however, argues that a section 75.323(b) violation was
not established because it did not have actual knowledge of the presence of methane. Section
75.323(b) paraphrases section 303(h)(2) of the Mine Act, 30 U.S.C. ' 863(h)(2). While MSHA
has stated that knowledge of methane is a prerequisite to the obligations imposed by section
75.323(b), neither section 75.323(b) nor its statutory source address whether only actual
knowledge triggers those obligations.

    Because Congress has not directly spoken to the issue, we examine whether MSHA=s

interpretation is a reasonable one. See Chevron, 467 U.S. at 842-44; Thunder Basin Coal Co., 18
FMSHRC 582, 584 n.2 (April 1996); Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (January
1994). Deference is accorded to Aan agency=s interpretation of the statute it is charged with
administering when that interpretation is reasonable.@ Energy West Mining Co. v. FMSHRC, 40
F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). The agency=s interpretation of
the statute is entitled to affirmance as long as that interpretation is one of the permissible
interpretations the agency could have selected. Chevron, 467 U.S. at 843; Joy Technologies, Inc.
v. Secretary of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 117 S. Ct. 1691 (1997).
See also Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).

    We find the Secretary=s interpretation of section 75.323(b) reasonable. Looking first at

the language of the regulation and its statutory source, we note that neither explicitly contains a
requirement of operator knowledge at all, much less actual knowledge. Thus, the Secretary=s
interpretation is consistent with the regulatory language. We also conclude that the Secretary=s
9
At trial, JWR=s foreman, Maynard Thomas, admitted that JWR=s deployment of line
curtains was intended to prevent methane that it knew was seeping from the mine floor from
being detected by a methane monitor. Tr. 270-71. Thomas also stated that JWR had used line
curtain in such a fashion in its No. 7 Mine on many occasions in the past in order to cover up a
methane bleeder in the floor that was Aclose to a sniffer[,]@, i.e., a methane monitor. Tr. 286-87,
291-94.

                                             11

Page 12

interpretation here is a sensible one that furthers the safety-promoting purposes of the Mine Act in
general and section 75.323(b) in particular. That section=s thrust is to require operators to take
specified measures once they are aware that methane has reached certain levels, in order to
minimize the likelihood of explosion. We agree with the Secretary that to permit an operator to
evade the required measures by taking intentional steps to keep itself ignorant of methane levels
would permit circumvention of section 75.323 Aby [a] cynical expedient.@ See S. Am. Br. at 10-
11 n.7.

   Moreover, the Secretary=s construction of section 75.323 is consistent with Commission

and court interpretations of the term Aknowingly.@ In Kenny Richardson, 3 FMSHRC 8, 16
(January 1981), aff=d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928
(1983), the Commission interpreted Aknowingly@ as used in section 110(c) of the Mine Act, 30
U.S.C. ' 820(c), to mean Aknowing or having reason to know.@ The D.C. Circuit recently
deferred to this interpretation in Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358,
363-64 (1997). In affirming the Commission, the court noted that Acourts have . . . found that

knowingly= encompasses more than actual knowledge.@ Id. at 363 (citations omitted).

                   b.     Whether JWR Failed to Take any Measure Required by the
                          Standard

    JWR contends that the judge also erred in finding a violation of section 75.323 because

the evidence does not support his conclusion that the longwall was energized when Smith took his
methane measurements in the tailgate area. We need not address that question. Section
75.323(b) requires that, when excessive methane levels are encountered, in addition to de-
energizing the longwall, an operator must make ventilation changes or adjustments to reduce
methane below 1%. 30 C.F.R. ' 75.323(b)(1)(ii). Below, the Secretary contended that JWR
made no such changes or adjustments, even though it was aware it had a methane problem, while
JWR argued that it satisfied the standard by making the required ventilation changes or
adjustments after it learned of the excessive methane levels from the inspector. S. Post-Hearing
Br. 10-14; JWR Post-Hearing Br. at 6. Because he found the longwall was energized, the judge
did not address the subject.

     JWR continues to take the position that it complied with section 75.323(b) by making the

required ventilation changes or adjustments upon learning of the excessive methane levels from
the inspector. JWR PDR at 5-6. However, our conclusion that JWR had knowledge of excessive
methane prior to that time means that JWR should have been making such changes or adjustments
earlier. JWR=s failure to do so establishes a violation of the standard, regardless of whether the

                                            12

Page 13

longwall was energized during the inspection.10 Accordingly, we affirm in result the judge=s
finding of a section 75.323(b) violation.

   10
      The Secretary having raised this argument below, we are free to rely on it as a basis for

review. See 19 James Wm. Moore et al., Moore=s Federal Practice ' 205.05[1] (3d ed. 1997)
(citing United States v. Williams, 504 U.S. 36, 40 (1992)).

                                            13

Page 14

   B.      Unwarrantable Failure

    JWR maintains that its conduct in violating section 75.342 was not aggravated, as line

curtain has been used in mines to route air around methane monitors for many years. JWR PDR
at 4. It also contends that, because it immediately acted to correct the problem upon learning of
the methane buildup, its good faith precludes a finding of aggravated conduct in connection with
the section 75.323 violation. Id. at 6. The Secretary asserts that the judge=s finding of
unwarrantable failure is supported by JWR=s intentional actions and his finding that JWR was
engaging in a dangerous practice. S. Am. Br. at 11-14.

    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 (December 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 Areckless disregard,@ Aintentional
misconduct,@ Aindifference,@ or a Aserious lack of reasonable care.@ Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991) (AR&P@); see also Buck Creek
Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission=s
unwarrantable failure test). In addition, the Commission has relied upon the high degree of
danger posed by a violation to support an unwarrantable failure finding. See BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1243-44 (August 1992) (finding unwarrantable failure where unsaddled
beams Apresented a danger@ to miners entering the area); Warren Steen Constr., Inc., 14
FMSHRC 1125, 1129 (July 1992) (finding violation to be aggravated and unwarrantable based
upon Acommon 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) (finding unwarrantable failure where roof conditions were Ahighly dangerous@).

    Substantial evidence supports the judge=s finding that JWR acted intentionally in using line

curtain to attempt to avoid application of sections 75.342 and 75.323, and therefore engaged in
aggravated conduct. See R&P, 13 FMSHRC at 194 (intentional conduct may be aggravated and
constitute unwarrantable failure). Foreman Thomas acknowledged that JWR intended to avoid
detection of excessive methane. 18 FMSHRC at 28; Tr. 270-71. Moreover, as the judge found,
JWR took evasive action because, with the amount of intake air already at the maximum
allowable amount of 131,000 cubic feet per minute, it otherwise would have had to shut down the
longwall until the amount of intake air relative to the amount of methane was sufficient to dilute
the methane below 1 percent. 18 FMSHRC at 25, 28-29; Tr. 264. Thus, in order to continue
production, a conscious decision was made to evade a device designed to act as an important
preventive safeguard.

    We reject JWR=s contention that, because it was simply engaging in Aa common practice

that has been used in the mines for many years@ (JWR PDR at 4), its violation of section 75.342
was not the result of aggravated conduct. The only evidence JWR presented in support of that
claim was its foreman=s testimony that he had used line curtain on mine floor methane bleeders 50

                                            14

Page 15

to 100 times previously. Tr. 292. Although an operator=s good-faith, albeit mistaken, belief that
cited conduct complied with the Mine Act is a defense to an unwarrantable failure allegation, the
Commission has held that such a belief must be reasonable. Cypress Plateau Mining Corp., 16
FMSHRC 1610, 1615-16 (August 1994). Given the clear commands of section 75.342 and the
high degree of danger posed to miners by JWR=s conduct,11 we do not think the record supports a
conclusion other than that any such belief of JWR=s foreman was unreasonable. See, e.g., id.
(unreasonable belief that roof plan permitted miners under unsupported roof no defense to
unwarrantable failure).

    We also reject JWR=s argument that its immediate abatement of the section 75.323

violation establishes that it acted in good faith. JWR undertook to abate the violative condition
only after Inspector Smith issued the verbal orders. APost-citation [abatement] efforts are not
relevant to the determination whether the operator has engaged in aggravated conduct in allowing
the violative condition to occur.@ Enlow Fork Mining Co., 19 FMSHRC 5, 17 (January 1997).

   11
        Even JWR described it as Aa potentially dangerous situation.@ JWR PDR at 6.



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                                           III.

                                       Conclusion

    For the foregoing reasons, we affirm the judge=s determinations that JWR violated

sections 75.342 and 75.323 and that both violations were the result of unwarrantable failure.

                                         Mary Lu Jordan, Chairman




                                         Marc Lincoln Marks, Commissioner




                                         James C. Riley, Commissioner




                                         Theodore F. Verheggen, Commissioner




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