Mill Branch Coal Corporation v. Secretary of Labor

Plain-English summary

Severe floor heave, deteriorating ribs, displaced roof-support jacks, blocked doors, and an obstructed primary escapeway developed while miners retrieved equipment from Mill Branch's Low Splint A Mine. The Commission affirmed the imminent-danger withdrawal order because the inspector reasonably believed the mine's structural integrity could fail before the conditions could be abated. It also affirmed the S&S violation for failing to maintain the primary escapeway and upheld violations of the weekly intake- and return-air-course examination standards. The Commission remanded the S&S findings for the two examination violations because the ALJ had adopted another party's reasoning without making adequate findings. It also vacated the ALJ's no-unwarrantable-failure determinations on those violations because known worsening conditions and the examiner's failure to record hazards required fuller analysis.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.380(d)(1), 75.364(b)(1), and 75.364(b)(2)
• Outcome: The imminent-danger order, escapeway S&S finding, and examination violations were affirmed; the examination S&S and unwarrantable-failure findings were remanded.
• Key point: An imminent danger need not cause harm immediately if miners must be withdrawn because the condition could cause death or serious injury before it can be abated.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

MILL BRANCH COAL CORPORATION             :          

:                      

v.                                                                 :           Docket
Nos.    VA 2012-435-R

:                                   VA
2012-436-R

SECRETARY OF
LABOR,                                      :                                   VA
2012-439-R

MINE SAFETY
AND HEALTH                             :                                   VA
2012-440-R

ADMINISTRATION                                                :                      

BEFORE: Cohen, Nakamura, and Althen, Commissioners[1]

DECISION

BY THE COMMISSION:

In these contest proceedings, arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act” or “Act”), the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued a citation and multiple orders, including an imminent
danger order, to Mill Branch Coal Corporation after observing deteriorating
conditions in the operator’s Low Splint A Mine. A Commission Administrative Law
Judge upheld the imminent danger order and a citation alleging a significant
and substantial (“S&S”)[2] violation of an escapeway
standard.[3] 34 FMSHRC 2090, 2137
(Aug. 2012) (ALJ). He also upheld two orders alleging S&S violations of standards
mandating weekly safety examinations. [4] Id. The Judge
concluded, however, that the weekly examination violations had not resulted
from an unwarrantable failure to comply with the standards.[5]
Id.

Mill Branch and the Secretary of
Labor filed cross-petitions for discretionary review, which we granted. For the
reasons set forth below, we affirm the Judge’s decision: (1) upholding the
imminent danger order; (2) concluding that the violation of the escapeway
standard was S&S; and (3) holding that the operator violated the weekly
examination standards. As to the examination violations, we remand the Judge’s
S&S determinations for further findings and analysis and vacate the Judge’s
unwarrantable failure determinations and remand for findings and analysis
consistent with this decision.

I.

Factual and
Procedural Background

The Low Splint A Mine is an underground coal
mine located in Wise, Virginia, which exists at a middle level between two
other mines. The Taggart seam, which lies approximately 250 feet below the Low
Splint A Mine, is mined out, and the mine formerly in that seam is now closed. The
mining of the Taggart seam created pressures in the Low Splint A Mine,
including the creation of “floor heave.”[6]

Mining was performed in the Low Splint A Mine in
the following sequence: development of the Southeast Mains, A Left and B Left
sections; retreat mining of the B Left section; development of the B Right and
the 5 West sections; and retreat mining of the 5 West and B Right sections. On
May 21, 2012, the only producing section in the mine was the B Right section,
where retreat mining was being conducted using a continuous miner.[7]

On May 22, 2012, MSHA Inspector Christopher
Cain, accompanied by his supervisor, Gary Hall, visited the mine in order to
conduct a monthly retreat-mining review, a six-month evaluation of the roof control
plan, and a regular underground inspection. Inspector Cain had driven by the
mine the day before and had seen coal coming out of the mine on the stacker
belt, so he knew that production had been occurring. He had previously
inspected the mine in January 2012, when another MSHA inspector had asked him
to consult on floor heaval along the Southeast Mains, and a citation had been
issued alleging a failure to maintain the roof and ribs along the No. 5 belt.

Inspector Cain stated that when he arrived, Randy
Hensley, who had been acting as superintendent at the mine since earlier that
month, informed him that they were no longer mining and that they were pulling
equipment from the B Right area because the belt could no longer run. 34 FMSHRC
at 2094; 5 Tr. 28-29; 6 Tr. 6.[8] Hensley explained that
the floor heaval under the belt had required the belt to be raised to the point
that it was too close to the roof to run. 5 Tr. 29, 40-41, 165, 218.  Cain
checked the weekly examination book, which did not describe the conditions
described by Hensley.

Cain, Hall, and Hensley travelled toward the
face via the No. 3 entry, which was the secondary escapeway (also referred to
as the “return entry” or “alternate escapeway”), through the Southeast Mains
panel. The secondary escapeway served as the travelway for men and equipment from
the No. 5 belt drive to the working face. Inspector Cain observed that the floor
heaving that he had previously seen in January was worse, and that the ribs had
deteriorated more.

In the A Left panel, they got out of the mantrip
and continued on foot. Conditions worsened, as documented by photographs, and
included floor heaval, heaved floor material scooped and dumped into crosscuts
and entries, bent and tilted 100-ton jacks, knocked-out jacks, and spalling
ribs. Some of the jacks had been recently set, as demonstrated by the lack of
rock dust on them. Some jacks had been knocked out and not reset.

When Cain and Hall traveled through the B Right
area, they observed seven miners working underground to remove mining
equipment, including one mechanic who was removing the canopy from a shuttle
car. They also observed a “cutter,” or crack, where the roof met the ribs,
indicating deterioration, and they directed that area to be dangered-off. 5 Tr.
170-71.

Inspector Cain asked Hensley if they could use
the mantrip to travel through the primary escapeway (sometimes referred to as
the “intake escapeway”). Cain stated that Hensley replied that the mantrip
would not make it through the primary escapeway due to the heaving bottom.

5 Tr. 68-69; S. Ex. F1 at p. 4. As the inspectors walked
through the primary escapeway, they observed conditions similar to those they
observed in the secondary escapeway, which they also documented with
photographs. Both inspectors noted that, unlike the secondary escapeway, there
was no evidence that the operator had attempted to scoop the heaving floor. In
addition, there was a roof fall which required the primary escapeway to be
re-routed.

After traveling past the roof fall in the
primary escapeway, Cain and Hall could not find a door that would open between
the primary and secondary escapeways. Inspector Cain stated that for 1400 feet
they could not find a door that would open and allow access into and out of the
intake escapeway. In addition, he stated that the door positioned just outby
the seven drive, where he had seen miners working, would not open. The doors
would not open because of the pressure exerted on them by the floor heaval.

Before returning to the surface, Cain issued a
verbal imminent danger order for the Southeast Mains and the A Left and B Right
areas of the mine due to the excessive pressure in the area. Once on the
surface, Inspector Cain issued one citation and several additional orders.

Following the inspection by Cain and Hall on May
22, there were other visits to the mine to inspect conditions. On the night of
May 22, Daniel McGlothlin, the safety manager for Alpha Natural Resources, and
General Manager John Richardson went into the mine to look at conditions and to
mark the location of the remaining equipment. On May 23, Mill Branch personnel
accompanied state mine inspectors through the area. On May 24, accompanied by
some of the operator’s personnel, Cain and Hall inspected the mine with Mike
Gauna, a mine engineer from MSHA’s Office of Technical Support. On June 1, MSHA
went underground again because the Judge granted a motion permitting the
operator’s technical experts to observe the conditions, and the Judge ordered
MSHA representatives to accompany them.

Mill Branch contested the citation and orders,
and an expedited hearing was conducted on: (1) the imminent danger order (Order
No. 8178569); (2) Citation No. 8178570, alleging that the operator failed to
adequately maintain the primary escapeway in violation of section 75.380(d)(1) and
that the violation was S&S and caused by unwarrantable failure; and (3)
Order Nos. 8178573 and 8178574, alleging that Mill Branch failed to inspect and
record in the weekly examination books the hazards present in the intake and
return escapeways in violation of sections 75.364(b)(1) and (b)(2), and that
the violations were S&S and caused by unwarrantable failures.

After the hearing, the Judge affirmed imminent
danger Order No. 8178569 and the S&S primary escapeway violation alleged in
Citation No. 8178570. The Judge concluded that the inspector did not abuse his
discretion in issuing the imminent danger order given: (1) the conditions that
comprised an S&S violation of section 75.380(d) and (2) evidence that there
might be a massive failure of the structural integrity of the mine. He found,
however, that the violation of section 75.380(d) had not resulted from
unwarrantable failure. The Judge further concluded that the operator violated
sections 75.364(b)(1) and (b)(2) because there were numerous observable hazards
in the escapeways that the weekly examiner essentially failed to recognize,
record, or report. The Judge adopted the Secretary’s rationale expressed in his
post-hearing brief that the violations were S&S, but concluded that they
were not unwarrantable because there was some question regarding the length of
time that the conditions were known to the operator and the weekly examiner had
not recorded the hazards because they were already known to the operator.

Mill Branch filed a petition for discretionary
review with the Commission, challenging the Judge’s determinations upholding
the imminent danger order, that the violation of section 75.380(d)(1) was
S&S, that it had violated sections 75.364(b)(1) and (b)(2), and that those
violations were S&S. The Secretary challenged the Judge’s determination
that the violations of sections 75.364(b)(1) and (b)(2) had not resulted from
unwarrantable failures.[9] The Commission granted
both petitions and heard oral argument.

II.

Disposition

A.        Order No. 8178569 –
The Imminent Danger Order

Mill Branch argues that the Judge erred in
affirming the imminent danger order because the Judge failed to properly
consider the imminence of the danger associated with the conditions present,
and that there was no objective evidence that a collapse or an emergency
situation would occur in a short time. The operator asserts that Cain’s and
Hall’s concerns about the conditions were belied by the repeated investigations
permitted in the area after issuance of the order. In addition, it contends
that the Judge erred in his imminent danger analysis by improperly assuming the
occurrence of an emergency requiring the use of the primary escapeway.

Section 107(a) of the Mine Act provides in
relevant part that if an MSHA inspector “finds that an imminent danger exists,
[the inspector] shall . . . issue an order requiring the operator of such mine
to cause all persons . . . to be withdrawn from” the relevant area until the
danger no longer exists. 30 U.S.C. § 817(a). Section 3(j) of the Act defines an
“imminent danger” as a condition “which could reasonably be expected to cause
death or serious physical harm before such condition or practice can be
abated.” 30 U.S.C. § 802(j). The Commission has held that “there must be some
degree of imminence to support a section 107(a) order.” Utah Power and Light
Co., 13 FMSHRC 1617, 1621 (Oct. 1991) (“UP&L”). [10]

The Commission has also recognized
that “‘[t]he concept of imminent danger is not limited to hazards that pose an
immediate danger.’” Connolly-Pacific Co., 36 FMSHRC 1549, 1555 (June
2014) (quoting Cumberland Coal Res., LP, 28 FMSHRC 545, 555 (Aug. 2006),
aff’d, 515 F.3d 247 (3d Cir. 2008)). While the danger justifying an
imminent danger order need not be immediate, the danger must be such as to
require the immediate withdrawal of miners because it could reasonably be
expected to cause death or serious harm before the danger can be abated. Freeman
Coal Mining Co. v. Int. Bd. of Mine Op. App., 504 F.2d 741, 744-45 (7th
Cir. 1974). Thus, the Commission has upheld the issuance of an imminent danger
order involving an extremely hazardous condition that was created by the
potential for fall of material from a long-existing highwall that the operator
was not able to abate. Connolly-Pacific, 36 FMSHRC at 1555.

An inspector’s issuance of a section 107(a)
imminent danger order is reviewed under an “abuse of discretion” standard. Island
Creek Coal Co., 15 FMSHRC 339, 345-47 (Mar. 1993); UP&L, 13
FMSHRC at 1622. A section 107(a) order will be upheld if the Secretary proves
by a preponderance of the evidence that the inspector reasonably concluded that
an imminent danger existed. Island Creek, 15 FMSHRC at 346-47. The
Commission has explained that a Judge is not required to accept an inspector’s
subjective perception that an imminent danger existed but, rather, must
evaluate whether it was objectively reasonable for the inspector to conclude
that an imminent danger existed. Id. at 346. We review the Judge’s
determination of whether the inspector abused his discretion under a
substantial evidence standard. See, e.g., Connolly-Pacific, 36 FMSHRC at
1555.

With respect to Order No. 8178569, the Judge
determined that a reasonable person possessing a qualified inspector’s
education and experience would have been warranted in issuing an imminent
danger order when confronted with the conditions that Inspector Cain found on
May 22 “[g]iven the objective stigmata of dangerous pressure convergence,
including floor heaval, rib collapse, compromised jacks, signs and reports that
conditions had significantly worsened in recent days, and given that [Mill
Branch] had in fact stopped mining and was in the process of retrieving
equipment.” 34 FMSHRC at 2129.

In reaching his determination, the
Judge made many credibility determinations. On review, the Judge’s credibility determinations are entitled to great
weight and may not be overturned lightly. Farmer v. Island Creek Coal Co.,
14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767,
2770 (Dec. 1981). Because the Judge “has an opportunity to hear the testimony
and view the witnesses[,] he [or she] is ordinarily in the best position to
make a credibility determination.” In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona
Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), aff’d sub nom.
Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir.
1998). Nonetheless, we will not affirm such determinations if they are
self-contradictory or if there is no evidence or dubious evidence to support
them. Id. at 1881 n.80; Consolidation Coal Co., 11 FMSHRC 966,
974 (June 1989).

Similar to the hazardous conditions in Connolly-Pacific
which could not be abated, Mill Branch had ceased mining and had begun
retrieving equipment rather than abating conditions in the Southeast Mains, A
Left, and B Right areas of the mine. Inspector Cain testified that Acting
Superintendent Hensley had informed him that Mill Branch had ceased mining in
the B Right area because the No. 6 belt had been squeezed between the floor and
roof and could no longer run. 34 FMSHRC at 2094; 5 Tr. 28-29, 40-41, 159. Therefore,
Mill Branch was withdrawing its equipment from the area in order to mine a
different section of the mine. 34 FMSHRC at 2094; 5 Tr. 29.[11]

Inspector Cain testified that he issued the imminent
danger order because he believed the mine was “past the point of no return” due
to the “squeeze” pressures exerted on the floor, ribs, and roof.[12]
5 Tr. 87-88. He observed that there had been dramatic changes in the mine that
had occurred since he last visited the mine in January, and knew from
conversations with Hensley and Martin that conditions had “dramatically
worsened” in the past week or so. 5 Tr. 84-85, 88; S. Ex. E-1 (Order No.
8178569).

Regarding the floor conditions, Inspector
Cain observed floor heaval that reduced the height and width of the area, and
affected mandoors. Although the average height of an entry in the mine area was
5 feet, the secondary escapeway had been reduced to a height of 35 to 36 inches
in most places, and 25 inches at one place. 5 Tr. 32, 75-76, 101, 146. In the
primary escapeway, Cain and Hall observed floor heaval almost to the mine roof.
5 Tr. 181; S. Ex. B-7. Inspector Cain testified that Hensley had acknowledged
that the mantrip would not fit in the primary escapeway. 34 FMSHRC at 2096; 5
Tr. 68, 107; S. Ex. F-1 at p. 4. The heaving had caused the mandoors between
the primary and secondary escapeways to be inoperable for approximately 1400
feet. 5 Tr. 80-81, 100, 140, 189. Inspector Cain also testified that the door
just outby the 7 drive where miners were working would not open. 5 Tr. 141.

The floor heaval also impacted
jacks set throughout the area to provide support. 5 Tr. 36, 61. Cain and Hall
observed multiple 100-ton jacks that had bent because of the floor heaval. 5
Tr. 36-39, 185-86, 210; S. Ex. B-18. Cain and Hall observed jacks in the
secondary escapeway that had been recently set, as evidenced by their lack of
rock dust, and that were already leaning due to pressures exerted in the area. 5
Tr. 58, 185; S. Ex. B-14. In addition, the inspectors observed that jacks had
been knocked out but not reset in the secondary escapeway. 5 Tr. 61, 217-19; S.
Ex. B-18.

The floor heaval impacted the safe accessibility
of the lifelines in the escapeways. In the primary escapeway, floor heaval was
directly under the lifeline. 5 Tr. 72-74; S. Ex. B-1. In the secondary
escapeway, the lifeline was positioned against the left rib where supports had
been compromised and not reset. 5 Tr. 60-61; S. Ex. B-17.

Regarding the rib conditions, Cain and Hall
observed ribs deteriorating on both sides of the primary escapeway (5 Tr. 72,
78, 180; S. Ex. B-6) as well as ribs deteriorating in the secondary escapeway
(5 Tr. 53, 183-84; S. Exs. B-8, B-10). When asked whether pictures taken in the
primary escapeway by the inspectors showed “pretty major rib sloughage,” Acting
Superintendent Hensley admitted that they did and that walking over the
sloughage when using the lifeline would be hazardous. 6 Tr. 50-51; S. Ex. B-6.

As to the roof conditions, Inspector Cain observed
that there were areas of roof fall that required the re-routing of the primary
escapeway. 5 Tr. 80-81, 98-100, 142; S. Ex. A-3. A roof fall occurred in the
primary escapeway on April 25, less than a month before the inspection. 5 Tr.
99; S. Ex. A-3. Moreover, the inspectors observed in the secondary escapeway a
“cutter,” or crack, where the roof met the ribs, in a crosscut near the 7 drive.
5 Tr. 170-71. The cutter required the inspectors to have the area dangered-off.
5 Tr. 170. Donald Jacobs, the senior manager of geology at Alpha Natural Resources
(6 Tr. 144), testified that “typically in the mine, before when we’ve had roof
failure, you would typically see cutters where the roof [was] breaking up.” 6
Tr. 156-57. Mill Branch acknowledged that there was a cutter at the 7 drive. 6
Tr. 16-17; MB Br. at 15 n.4.

Gauna corroborated the conditions
observed by Cain and Hall, explaining that the overall stability of the area
was negatively impacted by the pillar and floor failure. He testified that
conditions of closure, or the coming together of the roof and floor, were
created by the retreat mining of the B Left and 5 West areas, and that these
two areas of failure were trying to merge. 5 Tr. 235-36, 238, 240-42. Gauna observed
that there was pillar system failure along the 6 belt area, which is an area
between the B Left and 5 West sections. 5 Tr. 241-42; S. Ex. C at p. 2. He
stated that “when you see this type of floor heave and you see this type of
pillar degradation, it’s a combination pillar failure and floor failure that’s
happening simultaneously.” 5 Tr. 234. He explained, “[w]hen you’re in a system
failure like this, things can become unpredictable,” and that “you’ve lost
control in the overall stability.” 5 Tr. 242. Gauna testified that the operator
should have pulled its equipment out sooner because closure is “a trap waiting
to happen. It’s like a fish trap.” 5 Tr. 257. He explained that closure could
happen at an “indeterminate time,” which could be “instantaneous,” and that it
was the first time he had seen miners working in an area with that degree of
failure. 5 Tr. 243-44, 258, 260-61.

In contrast, the operator’s expert
witness, David Newman, testified that the roof was stable, that the area had
reached a state of equilibrium after mining had ceased, and that there were no
stability related issues. 6 Tr. 177-78, 185-86, 197-98. In reaching his
conclusion, Newman relied upon modeling and checking eleven “bore holes,” or holes
that previously had been drilled into the roof of the secondary escapeway. 6 Tr.
165-68, 179-85; MB Ex. LS-4.

There is ample evidence in the
record to support the Judge’s crediting of Gauna’s testimony over that of Newman.
34 FMSHRC at 2129 n. 22, 2132.  The Judge credited Gauna’s testimony that the
model relied upon by Newman was flawed because the modeling program incorrectly
assumed that the roof and floor were of the same material. 34 FMSHRC at 2118,
2129 n.22.  Gauna testified that the model did not accurately display the
global stability because it overstated the stability of the pillars. 6 Tr. 236.
He explained that the pillars could not be stable because they were on a soft
floor, and the model did not work with conditions involving a soft floor. 5 Tr.
254; 6 Tr. 237-38. On cross-examination, Newman admitted that the model assumed
that the roof and floor were composed of the same rock, although that was not
the case at the mine. 6 Tr. 193-94.

Besides finding that the model Newman relied upon was
flawed as applied to the mine’s conditions, the Judge found that Newman spent
little or no time assessing the primary escapeway. 32 FMSHRC at 2132. Newman
admitted that he traveled in the secondary escapeway and did not witness conditions
in the primary escapeway. 6 Tr. 158.

In addition, the Judge found that Newman’s “narrow
focus on the ‘stability of the immediate roof’ raised questions regarding his
conclusions about the mine’s global stability.”

34 FMSHRC at 2132. The Judge gave limited weight to
Newman’s testimony that the cessation of mining had lessened stresses on the
roof and that a state of equilibrium had been attained, and found more
persuasive Gauna’s testimony “regarding the unpredictable nature of the global
environment at Low Splint A, even after the work stoppage.” 34 FMSHRC at 2130.

The Judge’s credibility determination
is supported by the record. MSHA witnesses testified that the miners removing
the equipment were in danger even though mining had ceased.[13]
Inspector Cain testified that in order to remove the feeder, the operator would
have to use the continuous miner or scoop to make the entry large enough. 5 Tr.
156-57. Acting Superintendent Hensley admitted that the operator might have had
to use the continuous miner to get the feeder out of the mine. 6 Tr. 8. Hall
testified that as miners moved equipment out and removed the floor in order to
clear the equipment, he did not know what was going to trigger a collapse. 5
Tr. 189. He explained that “[t]he ribs are already failed . . . if you continue
to let them move that material, . . . I just couldn’t predict when it would
have a failure.” 5 Tr. 189. Moreover, even if the equipment could be removed,
an examiner would still need to travel through the area to perform weekly
examinations. 6 Tr. 143.

Accordingly, we affirm the Judge’s
determination that Inspector Cain did not abuse his discretion in issuing Order
No. 8178569 as supported by substantial evidence.[14]

B.        Citation
No. 8178570 – Primary Escapeway Violation

The Commission has
recognized that a violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious
nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission
further explained:

In order to establish that a violation
of a mandatory safety standard is significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the underlying violation of
a mandatory safety standard; (2) a discrete safety hazard — that is, a measure
of danger to safety — contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a reasonably
serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek
Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power,
Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria).

The Judge concluded that the primary escapeway
violation described in Citation No. 8178570 was S&S. 34 FMSHRC at 2126. In
satisfaction of the first Mathies factor, he found that the operator had
failed to maintain the primary escapeway in a safe condition to always assure
passage of anyone, including disabled persons, as required by section
75.380(d)(1). Id. Regarding the second factor, the Judge determined that
the violation contributed to a discrete safety hazard in that miners did not
have a safe means of escaping during an emergency at the mine. Id. He
concluded that the inability of miners, disabled or otherwise, to escape
quickly was reasonably likely to cause a serious injury in satisfaction of the
third factor. Id. Finally, the Judge found that the fourth factor had
been satisfied because the inability of miners to get out quickly and safely in
emergency conditions would clearly lead to a reasonable likelihood of injuries
that would be of a reasonably serious nature. Id. at 2127.

Mill Branch disputes the Judge’s findings with
respect to the second and third Mathies factors. It argues that the
Judge should have used a sliding scale in considering the difficulty of using
the escapeway – that is, a consideration that what constitutes a quick escape
in a coal seam with a height of 36 inches is different from what is considered
for a coal seam with a height of six feet – and that it was only required to
have an escapeway that was approximately three feet high. The operator further
contends that the Judge failed to consider that potential fire sources were
removed from the area.

We have recognized that the need
for adequate escapeways will only arise in the context of an emergency
evacuation from the mine and that the S&S nature of an escapeway violation
must be considered in the context of an emergency. Spartan Mining Co.,
35 FMSHRC 3505, 3508-09 (Dec. 2013). Therefore, we conclude that the Judge
accurately described the relevant hazard contributed to by the violation as
delayed escape from the mine during an emergency.

We further conclude that
substantial evidence supports the Judge’s S&S determination.  The record
reveals the existence of floor heaval directly under the lifeline in the primary
escapeway. 5 Tr. 72-74; S. Ex. B-1. In addition, the floor heaval in the
primary escapeway was not being scooped, as it was in the secondary escapeway. 5
Tr. 76-77, 180-82. Doors were damaged between the primary and secondary
escapeways, thus preventing access between the escapeways for approximately
1400 feet. 5 Tr. 140. The operator’s Acting Mine Superintendent admitted that
the floor heaval made travel through the area slower and more difficult in an
emergency situation. 6 Tr. 45. Moreover, Bruce Martin, the operator’s weekly
examiner, testified, “[y]ou could get a stretcher down there[,] but you
couldn’t carry it.” 6 Tr. 113. McGlothlin similarly testified that travel
through the primary escapeway with a stretcher “wouldn’t have been easy,” and
that travel through the area would be difficult. 5 Tr. 278-79, 307. Thus, there
is clearly substantial evidence that the cited conditions would contribute to a
delayed escape during an emergency, particularly for disabled miners, and the
delay in escape would be reasonably likely to lead to serious injury.

We do not find persuasive Mill Branch’s argument
that the Judge should have used a sliding scale in considering the difficulty
in using the escapeway since it was only required to have an escapeway that was
approximately three feet high. In the primary escapeway, inspectors observed
floor heaval almost to the mine roof. 5 Tr. 181; S. Ex. B-7. Cain testified
that he had difficulty traveling through the primary escapeway even without a
stretcher. 5 Tr. 147. Such evidence amounts to substantial evidence demonstrating
a reasonable likelihood of injury under the cited conditions regardless of how
low the escapeway was permitted to be. Accordingly, we affirm the Judge’s
determination that the violation of section 75.380(d)(1) alleged in Citation
No. 8178570 was S&S.

C.        Order
Nos. 8178573 and 8178574 – Weekly Examination Violations

1. Whether the Judge
   correctly determined that Mill Branch violated 30 C.F.R. §§ 75.364(b)(1) and
   (b)(2)

Orders Nos. 8178573 and 8178574
allege violations of sections 75.364(b)(1) and (b)(2) because the weekly
examiner failed to recognize and record in the weekly examination book
hazardous conditions existing in the intake and return escapeways,
respectively. The Judge upheld the violations because there were numerous
observable hazards in the escapeways that the weekly examiner essentially
failed to recognize, record, or report.[15] 34 FMSHRC at 2135, 2136.

As noted above, hazardous
conditions in both the primary and secondary escapeways justified the issuance
of an imminent danger order. There is substantial evidence in the record that,
although such conditions had existed for some time and the operator was aware
of them, the conditions had not been reported in the weekly examination book
before the May 22 inspection other than the entry on May 8 that the “bottom was
hooving in some places.” S. Ex. G, at 2; 5 Tr. 112. The return escapeway had
three generations of stopping lines that had been crushed out, rebuilt, and
re-patched. 5 Tr. 107-08, 119, 241. The primary escapeway also had damage and
rehabilitation to stoppings. 5 Tr. 108. The conditions of the stoppings had
existed for some time. 5 Tr. 194-95, 257. In addition, there is evidence in the
record that the belt had to be repeatedly raised in May due to the extreme
floor heaval that caused the belt rollers to stop turning.[16]
6 Tr. 88-89; 5 Tr. 33-34; S. Exs. B-23 through B-28. There were tracks over the
floor heaval in the primary escapeway, indicating that the examiner had passed
through the area and was aware of the deteriorating conditions. 5 Tr. 77; S.
Ex. B-5. Moreover, Cain testified that Hensley knew that a four-wheeler mantrip
could not make it through the primary escapeway. 5 Tr. 69, 85. Such evidence
amounts to substantial evidence supporting the Judge’s determination that Mill
Branch violated section 75.364(b)(1) and (b)(2) by failing to recognize, record,
or report hazardous conditions in the escapeways.[17]

2. Whether the Judge correctly
determined that the violations were S&S

With respect to each violation, the
Judge, in a single sentence, adopted the rationale of the Secretary in
concluding that the violations were S&S. 34 FMSHRC at 2136.

The Commission requires that a
Judge analyze and weigh all probative record evidence, make appropriate
findings, and explain the reasons for his or her decision. Mid-Continent
Res., Inc., 16 FMSHRC 1218, 1222 (June 1994). The D.C. Circuit has
explained that, “[p]erhaps the most essential purpose served by the requirement
of an articulated decision is the facilitation of judicial review.” Harborlite
Corp. v. ICC, 613 F.2d 1088, 1092 (D.C. Cir. 1979). Without findings of
fact and adequate justification for the conclusions reached by a Judge, we
cannot perform our review function effectively. Anaconda Co., 3 FMSHRC
299, 300 (Feb. 1981) (citations omitted).

The Commission has recognized that
“wholesale incorporation of a litigant’s brief is a questionable judicial
practice.”[18] Energy West Mining
Co., 16 FMSHRC 1414, 1419 n.8 (July 1994). Here, the Judge failed to set
forth his findings of fact, indicating which evidence he weighed and any
credibility determinations he made, as well as any other reasons for concluding
that the violations were S&S. Rather, the Judge adopted the reasoning of
the Secretary set forth in a post-hearing brief. Without the Judge’s findings
and explanations, we are unable to effectively perform our review function. Accordingly,
we remand this matter to the Judge so that he may set forth his analysis and
findings supporting his determination that Mill Branch’s violations of sections
75.364(b)(1) and (b)(2) were S&S.

3. Whether the Judge correctly determined that the violations did
   not result from unwarrantable failure

The Judge concluded that the weekly
examiner’s conduct in not recording the conditions alleged in Order Nos.
8178573 and 8178574 did not result from unwarrantable failure. 34 FMSHRC at
2136. The Judge reasoned that the operator’s justification for not recording
the hazards, that is, because the hazards were well known, was more “the result
of ignorance, misunderstanding, and incompetence than that of intentional
misconduct or reckless disregard.” Id. The Judge further noted that
“there remain[] some questions as to the length of time [that] the conditions
were known to the operator.” Id. 

Whether conduct is “aggravated” for purposes of
unwarrantable failure is determined by looking at all of the facts and
circumstances of each case, including: (1) the extent of the violative
condition, (2) the length of time that it has existed, (3) whether the
violation posed a high risk of danger, (4) whether the violation was obvious,
(5) the operator’s knowledge of the existence of the violation, (6) the
operator’s efforts in abating the violative condition, and (7) whether the
operator has been placed on notice that greater efforts are necessary for
compliance. See McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1993 (Aug.
2014); Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal
Co., 31 FMSHRC 1346, 1351 (Dec. 2009); Cyprus Emerald Res. Corp., 20
FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C.
Cir. 1999).

The Commission has repeatedly made clear that it
is necessary for a Judge to consider all relevant factors in determining
whether an unwarrantable failure to comply with a standard has occurred. Coal
River Mining, LLC, 32 FMSHRC 82, 89 (Feb. 2010); San Juan Coal Co.,
29 FMSHRC 125, 129-30 (Mar. 2007); Windsor Coal Co., 21 FMSHRC 997, 1001
(Sept. 1999) (remanding an unwarrantable determination for further analysis and
findings when the Judge failed to analyze all factors). While a Judge may
determine, in his or her discretion, that some factors are not relevant, or may
determine that some factors are much less important than other factors under
the circumstances, all of the factors must be taken into consideration and at
least noted by the Judge. IO Coal, 31 FMSHRC at 1351.

Although the Judge set forth the factors
that must be considered in an unwarrantable failure determination (34 FMSHRC at
2126), he failed to set forth his findings and analysis applying them. See id.
at 2135-36.

Moreover, the Judge erred in
accepting as a mitigating circumstance the examiner’s justification that he did
not record the hazardous conditions because he believed they were known to the
operator. In promulgating the examination regulations, MSHA recognized that
“[e]ffective examinations are the first line of defense to protect miners
working in underground coal mines.” 77 Fed. Reg. 20700, 20702 (Apr. 6, 2012). Cain
and Hall explained that the purpose of an examination and the recording of a
hazard is clear communication of any hazards, so that miners and management are
not surprised by conditions, know whether they have a safe way out of the mine,
and have an opportunity to address the hazardous conditions. 5 Tr. 114-15, 197.
Effective examinations and the recording of hazards are particularly important with
“worsening conditions,” which the Judge found to be occurring in the mine. 34
FMSHRC at 2124. The weekly examiner’s determination that conditions did not need
to be recorded deprived miners of an important first line of defense and
amounted to an aggravating factor.

Accordingly, we vacate the Judge’s
unwarrantable failure determinations. We remand this matter to the Judge so
that he may apply the factors described herein, setting forth his analysis and
findings consistent with this decision.

III.

Conclusion

For the reasons discussed above, we affirm the
Judge’s decision upholding Order No. 8178569, concluding that the violation of
section 75.380(d)(1) alleged in Citation No. 8178570 was S&S, and holding that
the operator violated sections 75.364(b)(1) and (b)(2) as alleged in Order Nos.
8178573 and 8178574. However, we remand the Judge’s S&S determinations with
respect to Order Nos. 8178573 and 8178574 so that he may set forth findings and
analyses supporting his S&S determinations. Finally, we vacate the Judge’s
determinations that the violations of section 75.364(b)(1) and (b)(2) did not
result from unwarrantable failures and remand for findings and analyses
consistent with this decision.

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

[1] Chairman Jordan and
Commissioner Young assumed office after this case had been considered at a
Commission meeting. A new Commissioner possesses legal authority to participate
in pending cases, but such participation is discretionary. Mid-Continent
Res., Inc.,

16 FMSHRC 1218, 1218 n.2 (June
1994). In the interest of efficient decision-making, Chairman Jordan and
Commissioner Young have elected not to participate in this matter.

[2]
The S&S terminology is taken from section 104(d)(1) of the Act, 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.” 30
U.S.C. § 814(d)(1).

[3] That standard, 30 C.F.R.
§ 75.380, provides in relevant part:

(d) Each escapeway shall be –

(1) Maintained in
a safe condition to always assure passage of anyone, including disabled persons[.]

[4] The standard, 30 C.F.R. § 75.364(b), provides in relevant part:

At least every 7 days, an examination for hazardous

conditions . . . shall be made by a certified person .
. . at the following locations:

(1) In at least one entry of each intake air course,
in its entirety, so that the entire air course is traveled.

(2) In at least one entry of each return air course, in
its entirety, so that the entire air course is traveled.

[5] The unwarrantable failure
terminology is taken from section 104(d)(1) of the Mine 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).

[6] Floor “heave” is defined
as a “rising of the floor of a mine caused by its being too soft to resist the
weight on the pillars.” See Am. Geological Institute, Dictionary of
Mining, Mineral, and Related Terms 258 (2d ed. 1997).

[7] A mine map is attached to
this decision as Attachment A.

[8] The hearing in this case
occurred over two days (June 5, 2012 and June 6, 2012), and each day has its
own transcript that begins on page 1. The transcript for June 5 will be
referred to as “5 Tr.,” and the transcript for June 6 will be referred to as “6
Tr.”

[9] The Secretary did not
challenge the Judge’s determination that the violation of section 75.380(d) had
not resulted from an unwarrantable failure. Oral Arg. Tr. at 35-36.

[10] In UP&L, the
Commission additionally stated that “[t]o support a finding of imminent danger,
the inspector must find that the hazardous condition has a reasonable potential
to cause death or serious injury within a short period of time.” 13
FMSHRC at 1622 (emphasis added). We clarify that, while it may be necessary in
some cases for the condition or practice to be reasonably expected to cause
death or serious injury within a short time in order to show imminence, such a
showing is not necessary in all cases. Rather, the Mine Act requires that an
imminent danger be one that “‘could reasonably be expected to cause death or
serious physical harm before [a] condition or practice can be abated.’” See
Connolly-Pacific Co., 36 FMSHRC 1549, 1555 (June 2014) (citing 30 U.S.C. §
820(j)) (added emphasis omitted) (upholding an imminent danger order despite the
absence of evidence demonstrating that the cited danger had a reasonable
potential to cause death or serious injury in a short time).

Commissioner Cohen believes that the
foregoing analysis is not sufficient to resolve the tension between our case
law and the language of the Mine Act. In fact, the UP&L Commission’s
statement that the injury must have the potential to occur “within a short
period of time” was a departure from earlier Commission and U.S. Court of
Appeals holdings that “refused to limit the concept of imminent danger to
hazards that pose an immediate danger.” Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (Nov. 1989) (citing Freeman Coal Mining Co. v. Interior
Bd. of Mine Op. App., 504 F.2d 741 (7th Cir. 1974); Eastern Assoc. Coal
Corp. v. Interior Bd. of Mine Op. App., 491 F.2d 277, 278 (4th Cir. 1974); Old
Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d 25, 33 (7th Cir.
1975)). The court decisions issued prior to enactment of the Mine Act in 1977 are
relevant because the definition of “imminent danger” was created in the Federal
Coal Mine Health and Safety Act of 1969, and was not changed when Congress
enacted the Mine Act in 1977. Cypress Empire Corp., 12 FMSHRC
911, 918 (May 1990).

Now confronted with reconciling these two
seemingly competing interpretations, Commissioner Cohen finds it appropriate to
turn to the statutory language of the Mine Act for assistance. Section 3(j) of
the Mine Act defines “imminent danger” as “the existence of any condition or
practice . . . which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.” 30
U.S.C. § 820(j) (emphasis added). Upon reflection, it appears to Commissioner
Cohen that, in interpreting the language of section 3(j), the UP&L Commission
assumed that all hazardous conditions or practices which necessitate the
immediate removal of miners can be abated “within a short period of time.” (Without
such an assumption, there would be an obvious conflict between the quoted
language of UP&L and section 3(j) of the Mine Act).  He would
conclude that the UP&L assumption is incorrect; the Commission has
subsequently recognized that hazards which require the immediate withdrawal of
miners cannot universally be abated in a short period. See Connolly-Pacific
Co., 36 FMSHRC at 1555 (involving an unstable highwall, which because of
its extraordinary height could not be promptly abated).  

Accordingly, consistent with Rochester &
Pittsburgh Coal Co. and the decisions of the Seventh Circuit and Fourth
Circuit cited therein, Commissioner Cohen would conclude that the definition in
section 3(j) of the Mine Act governs, and that the Secretary is not required to
demonstrate that his inspector believed the cited hazardous condition had a
reasonable potential to cause serious injury within a short period of time
in order to sustain the issuance of a section 107(a) withdrawal order.

[11] Hensley testified that
the decision was made to stop mining the B Right section on May 22 not because
of the impossibility of further mining in the B Right section but because the 4
West area was ready to mine. 6 Tr. 8, 51. The Judge discredited Hensley’s
testimony. 34 FMSHRC at 2131. We see no reason to overturn the Judge’s
credibility determination. As the Judge found, one of the operator’s witnesses,
Alpha Natural Resources Safety Manager McGlothlin, testified that he had
learned of the equipment being withdrawn from the area “because of excessive
floor heave.” Id.; 5 Tr. 304.

[12] The Judge credited
Inspector Cain’s testimony, as corroborated by the testimony of Hall and Gauna,
regarding the conditions observed and the reasonable inferences drawn from such
observations. 34 FMSHRC at 2133. We find no reason to overturn the Judge’s
credibility determination. As the Judge found (id. at 2131, 2133), and
as set forth more fully below, the testimony of these witnesses was internally
consistent, consistent with each other, and Cain’s testimony was corroborated
by his contemporaneous field notes. See, e.g., 5 Tr. 58-59, 78, 180-81,
185; S. Ex. F-1. Moreover, Safety Manager McGlothlin also testified, “If I’d
went through that area, I’d say, ‘we’re pulling out of there.’” 5 Tr. 312.

[13] It is understandable
than an operator desires to retrieve expensive mining equipment and machinery
before abandoning a section. However, the operator must make that decision
before conditions deteriorate to the level of an imminent danger. Once there is
a reasonable expectation that the integrity of the mine environment has been
compromised and a collapse could occur at any moment, miners must be withdrawn.
Equipment may be replaced, the lives of the miners may not.

[14] We do not find
convincing Mill Branch’s argument that MSHA’s actions in permitting later investigations
are inconsistent with the issuance of the imminent danger order. MB Br. at 17. The
unavoidable risk posed by investigating conditions, as permitted by the Mine
Act, state law, and the Judge’s order, does not undermine an inspector’s reasonable
belief that an imminent danger existed at the time when the order was issued. Cf.
Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992) (stating that although
some “imminently dangerous conditions may require abatement that poses a degree
of unavoidable risk to miners[, t]he fact that such actions are necessary to
abate a condition . . . does not mean that the condition does not pose an
imminent danger”).

Further, we need not reach the
operator’s argument that the Judge erred by assuming the occurrence of an
emergency in his imminent danger analysis. Although the Judge considered the
S&S violation of section 75.380(d)(1) in his imminent danger analysis, he
set forth conditions existing outside of those cited as violative of section
75.380(d)(1) that justified issuance of the imminent danger order. See
34 FMSHRC at 2129.

[15] The orders do not allege
violations of 30 C.F.R. §§ 75.363 or 75.364(h), which pertain to recordkeeping
requirements for examinations. Operator’s counsel confirmed that Mill Branch
does not argue that an improper standard was cited. Oral Arg. Tr. at 65-66. Accordingly,
we do not reach the issue.

[16] Although Hensley
testified that the belt had to be raised only one time (6 Tr. 52), weekly examiner
Martin testified that the belt was repeatedly raised in May, although he did
not know how many times. 6 Tr. 88-89. The Judge found Hensley to be less than
fully credible, and we affirm the Judge’s credibility determination. 34 FMSHRC
at 2131.

[17]
We find unpersuasive Mill Branch’s argument that
the orders fail to sufficiently identify hazardous conditions. Section 104(a)
requires that each “citation shall be in writing and shall describe with
particularity the nature of the violation . . . .” 30 U.S.C. § 814(a). We have
recognized that the requirement for specificity serves the purpose of allowing
the operator to discern what conditions require abatement, and to adequately
prepare for a hearing on the matter. Cyprus Tonopah Mining Corp., 15
FMSHRC 367, 379 (Mar. 1993) (citations omitted).  Mill Branch’s extensive
examination and cross-examination of witnesses concerning the cited conditions
demonstrate that Mill Branch was able to adequately prepare for trial and knew
what conditions would have required abatement. See Asarco Mining Co., 15
FMSHRC 1303, 1306 (July 1993).

[18] The document setting
forth the rationale for the Judge’s decision, that is, the Secretary’s
post-hearing brief, is not easily accessible to a reader of the decision.