Secretary of Labor v. Sunbelt Rentals, Inc.

Plain-English summary

A Sunbelt employee was injured by material falling inside a cement-plant preheat vessel after the company's examiner inspected the upper compartment only from portholes one floor below. The Commission affirmed that the entire vessel was a working place and that an adequate examination required using the accessible seventh-floor portholes to inspect the overhead area. It held that the violation was the failure to look from a reasonably necessary vantage point, so the Secretary did not have to prove that a visible hazard would have been found there. A majority also affirmed the S&S designation. The Commissioners divided on negligence: two found ordinary negligence, two would have affirmed high negligence, and Chair Marco Rajkovich found no violation but joined the ordinary-negligence result solely to form a majority. The Commission reversed the high-negligence finding, vacated the $23,750 penalty, and remanded for reassessment; the later ALJ decision assessed $17,300.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.18002(a)
• Outcome: The violation and S&S finding were affirmed, negligence was reduced from high to ordinary, and the penalty was remanded for reassessment.
• Subsequent proceeding: The remand decision in va-2013-291-alj assessed a $17,300 penalty.
• Key point: A workplace examination can be inadequate because the examiner failed to use a reasonably necessary vantage point, even without proof that the missed view would have revealed a visible hazard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA)        

v.

SUNBELT
RENTALS, INC.

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Docket
No. VA 2013-291-M

BEFORE: 
Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners

DECISION

BY:
Young and Althen, Commissioners

This proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). At issue
is a citation issued to Sunbelt Rentals, Inc., (“Sunbelt”) by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) after an accident at a
concrete plant. The
citation alleged that Sunbelt failed to conduct an adequate examination of a “working
place” in the pre-heat tower, which processed limestone to make concrete. MSHA
charged a violation of 30 C.F.R. § 56.18002(a) [1] and designated the
violation as significant and substantial (“S&S”) [2] and a
result of high negligence. MSHA also proposed a penalty of $51,900.

An Administrative Law Judge of the Commission was
assigned to this matter. The Judge granted Sunbelt’s motion for summary
decision, reasoning that the standard does not explicitly require that exams be
“adequate” and therefore that an exam need not necessarily identify all hazards
which a reasonably prudent person would identify. 35 FMSHRC 3208 (Sept. 2013)
(ALJ).

Subsequently, the Commission vacated the
summary decision and remanded the case to the Judge, holding that the
regulatory requirement that a “competent” person conduct the examination means
that the examination must be adequate. 38 FMSHRC 1619, 1625-28, 1629 (July
2016).

After a hearing on remand, the Judge determined that
the operator had failed to examine adequately the working place at issue. He
held that the
violation was S&S and a result of the operator’s high negligence. He assessed
a penalty of $23,750. 40
FMSHRC 573, 578-79 (Apr. 2018) (ALJ).

The operator petitioned the Commission for review,
which was granted, and challenged the Judge’s findings regarding the violation,
S&S, and negligence. [3] Upon review, a majority of
Commissioners affirms the Judge’s finding of a violation and the S&S finding
because they conclude that substantial evidence supports the Judge’s
ruling that the operator did not conduct an adequate examination. [4] Chairman
Rajkovich, writing separately, would find no violation.

Commissioners
Jordan and Traynor would affirm the Judge’s finding of high negligence, while Commissioners
Young and Althen conclude the violation was instead the result of ordinary
negligence. Chairman
Rajkovich, while finding no violation, concurs with Commissioners Young and
Althen solely for the purpose of forming a majority decision of ordinary
negligence to remand for a new penalty assessment. The Judge’s negligence
determination and penalty assessment are reversed, and the case remanded for a
new penalty.

I.                   

Background

Roanoke
Cement Co. (“Roanoke”) operated a cement plant that included a pre-heat tower. The
inside of the pre-heat tower contained six numbered, vertically connected
conical vessels – each about 50 feet tall. The accident resulting in the
citation occurred in a vessel denominated as the fourth vessel. That vessel consisted
of an upper and a lower compartment connected through an opening, called a
“thimble,” between them. The inspector did not measure the compartments or the
thimble and did not testify to their size. An operator witness testified that
each floor in the tower was about 20 to 30 feet high and that the upper
compartment of the fourth vessel was smaller than the lower compartment.

Nine
floors were located on the outside of the tower, adjacent to the vessels on the
inside. A miner could use an exterior staircase or elevator to reach each floor.
The floors outside the vessels were numbered in ascending order. The sixth
floor was adjacent to the lower compartment of the fourth vessel while the
seventh floor was adjacent to the upper compartment of the fourth vessel. Tr.
118.

The interior walls of each vessel were lined with heat-resistant
refractory brick to prevent corrosion. Over time, some of the limestone could
adhere to the refractory, resulting in limestone building up inside the vessels.
There were three two feet by two feet portholes (“large portholes”) and an one
inch by one inch porthole (“small porthole”) on the sixth floor, outside the lower
compartment of the fourth vessel. The smaller upper compartment of that vessel
also contained two large portholes, two feet by two feet in size. Tr. 256-58. The
small porthole in the lower compartment allowed miners to clear buildup of
loose material in each vessel with an air lance. [5]
The large portholes allowed miners to look into each vessel while standing on an
adjacent floor of the tower.  

Sunbelt contracted with LVR, Inc. (“LVR”) to erect
scaffolding inside the vessels of the tower. Once the scaffolding was erected,
LVR would perform annual maintenance on the tower, as per its contract with Roanoke.
However, before scaffolding was erected, a miner could examine the inside of
each vessel by standing on an adjacent floor and looking through the corresponding
portholes.

On December 30, 2012, the tower was shut down. On
that day or shortly afterwards, each vessel of the tower was air lanced through
the small portholes. Subsequently, an employee of Roanoke, Jason Oedel, inspected
the tower through the portholes in early January 2013. He looked through the
portholes on the seventh floor in the upper compartment of the fourth vessel and
did not observe any loose hanging material in the vessel. Instead, he testified
that if there was any potentially loose material, it was indistinguishable from
the solid refractory of the vessel.

A few days later, Sunbelt began to work in the
fourth vessel. As stated a large open tube (the “thimble”) was located between
the lower and upper compartments of the fourth vessel. Sunbelt planned to erect
scaffolding in the lower compartment of the fourth vessel between the sixth and
seventh floors, after which LVR would replace the thimble in the vessel.

On January 8, at approximately 7:30 a.m., [6] Kendrick Davis examined
the interior of the fourth vessel by looking through portholes on the sixth
floor. At the time, Davis, an employee of Sunbelt, had been designated by
Sunbelt as its examiner for working places inside the fourth vessel and had
received site-specific training from Roanoke to inspect for falling material hazards
in the vessel.           

Unlike Oedel, Davis did not examine the top of the
vessel by looking through any seventh floor portholes. It is undisputed that instead,
he simply examined this portion of the vessel while standing on the sixth floor,
20-30 feet below. The interior of the vessel lacked a lighting system, and Davis
did not use any portable lights to examine the top of the fourth vessel. Instead,
he relied on the early morning sunlight to inspect the portion of the vessel
above the seventh floor. 40 FMSHRC at 579-80, 83-86.

During his examination, Davis did not observe any
loose hanging material in the part of the vessel above the seventh floor. Id.
at 584-85. Davis documented his examination of the fourth vessel in his
Pre-Shift Hazard Assessment. While filling out the Pre-Shift Hazard Assessment,
Davis listed falling material and poor lighting as potential hazards. Gov’t Ex.

6. Subsequently, on Davis’s instruction, other employees of Sunbelt beat the
   side of the fourth vessel to dislodge any loose material.

Shortly afterwards, at 10:30 a.m. on January 8, loose
material fell from the top of the vessel. The falling material struck and knocked
unconscious an employee of Sunbelt, Brian Tyler, while he was helping to erect
scaffolding in the fourth vessel. At the time of the accident, Tyler was on a
platform in the scaffolding below the open thimble. Material in the upper
compartment of the vessel, above the adjacent seventh floor of the tower, fell
and knocked Tyler unconscious. Three of the four straps on the headband to his
hard hat were broken. The exact nature of the material that struck Tyler is
unclear. Subsequently, a “headache board” [7]
was installed to protect miners from falling material. Id. at 589.

After being notified of the accident that morning, MSHA
issued an order at 11:00 a.m. under 30 U.S.C. § 813(j) to preserve the
conditions of the tower. [8]
MSHA Inspector David Nichols arrived at the tower soon afterwards, just after
Tyler had been placed into an ambulance following his injury. Subsequently, Inspector
Nichols peered through portholes on the seventh floor and observed a buildup of
material on the walls of the fourth vessel above the seventh floor of the
tower.

Inspector Nichols inferred that the buildup
indicated that loose, hanging material was present in the upper compartment of
the vessel, above the seventh floor, during Davis’s examination. Following his
inspection, the inspector issued a citation to Sunbelt for a
violation of 30 C.F.R. § 56.18002(a) . The citation was issued for failure to
conduct an adequate examination based upon the failure of Davis to look through
portholes on the seventh floor.

The standard provides that “[a] competent person
designated by the operator shall examine each working place at least once each
shift for conditions which may adversely affect safety or health. The operator
shall promptly initiate appropriate action to correct such conditions.” 30 C.F.R. § 56.18002(a) . The citation alleged that Sunbelt “did
not do an adequate work[ing] place exam in the [relevant area] as there [was]
hanging material overhead that had not been noted on the work[ing] place exam. The
area above was never checked.” Gov’t Ex. 8. MSHA proposed a penalty of $51,900. 40
FMSHRC at 573.

As set forth at the outset, the Judge initially
granted summary decision in favor of Sunbelt. On appeal, the Commission
vacated the citation and instructed the Judge, on remand, to consider whether
the area of the fourth vessel above the seventh floor was a “working place” and
whether Sunbelt violated the standard by failing to conduct an adequate exam of
such area. 38 FMSHRC at 1628. More specifically, the Commission held
that the examination “must be adequate in the sense that it identifies
conditions which may adversely affect safety and health that a reasonably
prudent competent examiner would recognize.” [9]
Id. at 1627.

II.                

Judge’s Decision on Remand

On
remand, the Judge applied the standard identified by the Commission and
determined that the standard required Davis to (1) examine the upper
compartment of the fourth vessel,    (2) look through the seventh floor portholes
while conducting such an exam, and (3) identify and correct the hazard of loose
hanging material in the upper compartment above the adjacent seventh floor of
the tower. 40 FMSHRC at 599.  

The examination requirement under section
56.18002(a) applies to a “working place.” The Judge found that the area of the upper
compartment of the fourth vessel above the seventh floor (the area at issue) was
a working place. Therefore, the Judge determined that the operator was required
to conduct an exam of this area. Id. at 598.

The Judge ruled that Sunbelt’s examiners failed to
adequately examine a working place – that is, the vessel’s walls and ceiling
above the seventh floor. Id. at 600. He rejected Davis’s testimony that he
could see the entire upper compartment of the vessel while standing on the
sixth floor. Id. at 584. The Judge found that the sixth floor portholes
provided an incomplete view of the area of the upper compartment above the
adjacent seventh floor of the tower. Therefore, the Judge agreed with Inspector
Nichols’ determination that a reasonable examiner would have looked through the
seventh floor portholes when examining the area of the upper compartment above
the seventh floor. Id. at 597-99.

Furthermore, the Judge found that if Davis had
looked through the seventh floor portholes, he would have seen loose material in
the area at issue above the seventh floor and would have identified such loose material
as a falling material hazard. He concluded that a reasonably prudent examiner
would not only have examined the area at issue from the seventh floor
portholes, but would have identified and corrected the hazard. Id. at
599.

In addition, the Judge determined that the
violation was S&S and resulted from the operator’s high negligence.
The Judge found that Sunbelt was highly negligent because it failed to
identify and correct a loose material hazard despite being informed by another
operator, Roanoke, of potential hazards of falling material in the pre-heat
tower. Specifically, the Judge noted that Roanoke had provided site-specific
training to Davis, which alerted Davis to a potential hazard of falling
material in the tower. The Judge assessed a penalty of $23,750. Id. at 601,
604-05, 608.

On appeal, Sunbelt challenges the Judge’s conclusion
that there was a violation, that the violation was S&S, and that it was the
result of high negligence. Sunbelt also claims that it lacked notice that its
examination of the working place at issue – the area of the fourth vessel above
the seventh floor – needed to be adequate. In its subsequent reply brief, the
operator claims for the first time that the Judge was not appointed in
accordance with the Appointments Clause of the U.S. Constitution.

III.             

Disposition

A.    
The
Appointments Clause Issue Has Not Been Properly Raised Before the Commission on
Review.

Judges deemed to be officers of the United States are
subject to the Appointments Clause of the Constitution of the United States. U.S.
Const. Art. II, § 2, cl. 2. In Lucia v. S.E.C. , 138 S. Ct. 2044,
2053 (2018), the Supreme Court ruled that administrative law judges of the
Securities and Exchange Commission were subject to the Appointments Clause
because they were “inferior officers” of the United States. In Jones Bros .
Inc. v. Sec’y of Labor , 898 F.3d 669, 679 (6th Cir. 2018), a
decision rendered a month after Lucia , the Sixth Circuit concluded that administrative
law judges of this Commission are officers of the United States. As such, they
are subject to the Appointments Clause and must be appointed by the President,
a Court, or the Head of a Department. Id.

In its reply brief in this case, Sunbelt claimed for
the first time that the Judge who presided over this case was not constitutionally
appointed, as he had not been appointed by the President, a court, or the head
of a department when he conducted the hearing in this matter in May 2017. Sunbelt
Reply Br. at 10-13.

Sunbelt failed to raise the issue in its petition
for discretionary review (“PDR”). If an issue is not raised before the Judge, the
Mine Act allows a party to raise the issue before the Commission only if the
party shows there is “good cause” to excuse its failure to raise the issue below.
30 U.S.C. § 823(d)(2)(A)(iii). Going further, however, the Mine Act limits the
Commission’s appellate authority to those issues that were raised in the PDR. Specifically,
the Mine Act states that “if [a PDR is] granted, review [by the Commissioners]
shall be limited to the questions raised by the petition.” Id. Commission
Procedural Rule 70(g), 29 C.F.R.       § 2700.70(g), reiterates that the scope
of appellate review by the Commission is limited to issues which were raised in
the PDR unless Commissioners decide to review additional issues on their own
motion, pursuant to the rule. [10]

Contrary to Sunbelt’s argument, our disposition of
the Appointments Clause issue is fully consistent with the Sixth Circuit’s
decision in Jones Bros. In that case, the court concluded that the
operator had forfeited the appointments clause issue because it had failed to
properly raise the issue in its PDR. Jones Bros ., 898 F.3d at 677-79.
The operator had briefly mentioned the issue in a footnote in its PDR, but the
court ruled that the footnote language was not sufficient to constitute a
developed argument that could be acted upon by the Commission.

The court then addressed the question of whether the
operator’s forfeiture could be excused pursuant to section 106(a)(1) of the
Mine Act, 30 U.S.C. § 816(a)(1), which allows appellate courts to excuse
forfeiture “because of extraordinary circumstances.” The court determined that
because of confusion about whether the Commissioners could entertain this
constitutional claim, it would excuse the forfeiture in that case under the
“extraordinary circumstances” provision.

In contrast to the court in Jones Bros. , the
Commission is bound to apply the twin requirements that the Commission may only
consider an issue not raised before a Judge upon a showing of “good cause,” and
that the Commission may only review issues raised in the PDR. Second, the
operator in Jones Bros., unlike Sunbelt in this case, did raise the
appointments clause issue in its PDR. Therefore, the Mine Act did not foreclose
review. In short, Jones Bros. provides no support for Sunbelt’s position.

Here, Sunbelt did not raise the Appointments Clause
issue in its PDR (or in its opening appellate brief). Only in its reply brief
responding to the Secretary did Sunbelt raise the Appointments Clause issue. Furthermore,
Sunbelt failed to ever address, in its reply brief or in subsequent oral
argument, the statutory provision (30 U.S.C. § 823(d)(2)(A)(iii)) which limits
the Commission’s scope of review to issues raised in the PDR.

For the foregoing reasons, we decline to review the
Appointments Clause issue.

B.     
The
Judge Properly Held That The Area of the Vessel above the Seventh Floor Was a “Working
Place. ”

The standard in question, 30 C.F.R. § 56.18002(a) , provides that “[a] competent person
designated by the operator shall examine each working place at least
once each shift for conditions which may adversely affect safety or health” (emphasis
added). MSHA’s regulations define a “working place” as any place in or
about a mine “where work is being performed.” 30 C.F.R. § 56.2.

The Judge found that the upper compartment of the
fourth vessel above the adjacent seventh floor of the tower was a working place
because the entire vessel was the working area, rendering the upper compartment
part of the working area. In addition, the Judge noted that the area of the
vessel above the seventh floor was directly above miners who were working
between the sixth and seventh floors. 40 FMSHRC at 598. In contrast, Sunbelt
claims that on the day in question, it planned to erect scaffolding to the top
of the lower compartment of the fourth vessel and did not plan to work in the
upper compartment.

The regulatory definition of “working place” in a surface metal and
nonmetal mine is “any place in or about a mine where work is being performed.”
30 C.F.R. § 56.2. It is undisputed that Tyler was a miner working in the lower compartment
of the double-compartmented fourth vessel. PDR at 13-15. The thimble created a large
opening between the lower and upper compartments of the vessel through which
materials could fall. In fact, the very reason for the thimble was to allow
passage of materials from the upper to the lower compartment. Therefore, the
fourth vessel clearly constituted one integrated work site in which falling
material from the upper compartment would threaten a miner below it within the
vessel. Without a doubt, that entire vessel was a place where work was being
performed.     

Indeed, the Pre-Shift Hazard Assessment form,
completed by Davis, indicated that the entire fourth vessel, not just a
particular area in that vessel, constituted the “designated work area” on
January 8. Gov’t Ex. 6. Moreover, Davis testified that while standing on the
sixth floor, he raised his head to look through the thimble at the top of the
vessel above the seventh floor. Tr. 350-51. That was a natural act
demonstrating that the upper compartment of the vessel was a working place. Given
the opening from that area, there obviously was a danger of material falling
though the thimble that required an examination of the upper compartment.

C.    
The
Judge Correctly Concluded that the Operator Violated 30 C.F.R. § 56.18002(a).

In the Commission’s earlier decision, the Commission
found that under 30 C.F.R.       § 56.18002(a), the operator must conduct
“adequate” exams of any working place. 38 FMSHRC at 1625-29. The Commission
further defined such adequate exams as those which would identify all hazards
which a reasonably prudent examiner would recognize. In addition, the
Commission concluded that Sunbelt had notice that 30 C.F.R. § 56.18002(a)
contains an adequacy requirement, i.e. , that the reasonably
prudent examiner test would be used to determine violations of the standard. 38
FMSHRC at 1627-28. The Commission’s prior decision on this exact issue is the
“law of the case.” Black Beauty Coal Co. , 38 FMSHRC 1307, 1311-12 (June
2016). Under the Commission’s prior decision, the operator had notice of the
adequacy requirement, for the reasons set forth in that decision.

On appeal, the operator argues that there was no
violation because the Secretary conceded that the hazard in the working place
at issue – the portion of the fourth vessel above the seventh floor — was
“latent” [11]
rather than “obvious” during Davis’s examination and that an operator cannot be
required to identify a latent hazard. However, it is unnecessary to resolve this
issue because the Judge’s finding of a violation is supported by substantial
evidence even if the hazard was latent during Davis’s exam.

Sunbelt’s argument misapprehends the nature of the
violation in this case. It is not necessary for the Secretary to prove that
there was loose material that would have been noted by Davis in his
examination. Rather, the Secretary need only prove that the examination was
inadequate – that is, that a reasonably prudent examiner would have gone to the
seventh floor and examined the vessel from those portholes.  

The Judge predicated his determination that Sunbelt
failed to conduct an adequate exam on “Sunbelt’s . . . [failure] to identify
conditions which a reasonably prudent and competent examiner would recognize as
hazardous.” 40 FMSHRC at 599. While substantial evidence supports the Judge’s conclusion
as to the consequences of the inadequate examination, he, too, misses
the fundamental deficiency. It is a failure to look , not a
failure to see. The operator’s examiner must perform a complete
examination of the entire working place. That required Davis to place himself
in a position to identify hazards in the working place at issue – the upper
compartment of the vessel above the adjacent seventh floor. In other words, Sunbelt
needed to examine this working place from all vantage points a reasonable
examiner would use, i.e. , all vantage points that were reasonably
necessary for an examination of such area. In a nutshell, an adequate exam must
include areas where a hazard might endanger miners – which here includes the
area from which objects could fall on miners working below.

The Judge concluded that Sunbelt did not adequately
examine the seventh floor walls and ceiling. Id. at 600. The Judge found
that the portholes on the seventh floor were reasonably necessary vantage points
because the sixth floor portholes provided an incomplete view of the working
place at issue. Id. at 584. In turn, this factual determination
was predicated on a credibility determination, where the Judge “discredited
Davis’s testimony that he could see any loose material hanging [in the upper
compartment] from the sixth floor [portholes].” Id. at 604. We find no
basis for overturning this credibility determination. [12]

The Judge’s finding that the examination was not
adequate is supported by his credibility determination, as well as by facts
recounted in the decision. [13]
First, the Judge noted that Davis examined the portion of the fourth vessel
above the seventh floor while standing on the sixth floor approximately 20 to
30 feet below. Tr. 339; 40 FMSHRC at 580-84. Second, the Judge noted that there
was no lighting system inside the vessel and that Davis did not use any
portable light during his exam. [14]
While some natural light came into the vessel through the portholes, artificial
light was only installed following Davis’ examination. Tr. 101-02, 371-72, 392;
40 FMSHRC at 580, 586.

The Judge discredited
Davis’s testimony that his view of the upper compartment of the vessel would be
partially restricted if he looked through the seventh floor portholes. [15] However,
it is unnecessary for us to discuss this credibility determination. As stated
above, the Judge found that the sixth floor portholes provided an incomplete
view of the working place at issue. Therefore, even if Davis’s view from the
seventh floor portholes was restricted, a reasonably prudent examiner would
have used these portholes to further examine the working place rather than
simply relying on the sixth floor portholes.

The inspector testified that he issued the citation
for failure to perform an adequate workplace examination because:

After surveying
the area, and looking at the seventh floor, sixth floor, I determined that it
would have been very easy for them to have went [sic] to the seventh floor as
part of their inspection, since it was overhead of the sixth level.

Tr.
152, 40 FMSHRC at 593. The inspector added that “Anytime you are in that area,
if there could possibly be a hazard overhead, then you should examine that.” Tr.
154.

Roanoke and LVR employees examined the area at issue
from the seventh floor portholes. As previously noted, during a walkthrough in
early January, Jason Oedel, Roanoke’s pyro supervisor (who was responsible for
the pre-heat tower and kiln system), inspected every open porthole throughout
the tower (although he was not performing or documenting any formal workplace
examination at that time). He testified that he was looking “for any damage [that
he] didn’t know about, or work that needs to be replaced, and any type of
buildup that we need to remove before contractors showed up on site.” Tr. 264;
40 FMSHRC at 579, 582. After this initial walkthrough, he testified that he
conducted an additional walkthrough of each floor of the tower with
construction supervisor Gary Snyder from LVR, and that Roanoke and LVR
inspected each level of the pre-heat tower, including the seventh floor, by
looking through the exterior doors for loose refractory and build-up. 40 FMSHRC
at 582. The Judge also pointed out that right after the accident, Oedel and
Gary Snyder from LVR went to the seventh floor to look at the area above where
the miners had been working. Tr. 271. When they looked at the upper compartment
of the vessel through the seventh floor portholes, they saw buildup. 40 FMSHRC
at 598.  

Moreover, the Judge found, and the operator does not
dispute, that the seventh floor portholes were reasonably accessible to Davis
on February 8. Id. at 600. Rather, Davis claims that he did not look
through the seventh floor portholes simply because none of the miners would be
physically standing or walking in the area of the vessel above the seventh
floor.

We respectfully disagree with the Chairman’s dissenting/concurring analysis of the examination standard at issue. As previously stated, the standard requires that “a competent person . . . shall examine each working place . . . for conditions which may adversely affect safety or health.” The standard thus mandates that an operator conduct an examination (which the Commission has interpreted as an “adequate” examination) for potential hazards. To prove a violation, therefore, the Secretary need only show that this adequate examination was not conducted. Nothing in the language of the standard requires a showing that the Secretary present evidence of hazards missed by the examiner. But this is exactly what the Chairman’s dissent/concurrence would require as he emphasizes that “the focus should hone in on what was loose, or fractured, or on the point of material failure at the time of the examination.” Slip op. at 22. This approach would eviscerate the protective purpose of examinations, and jeopardize miner safety.                  For example, what if a Sunbelt examiner failed to look into the sixth floor portholes (which no one disputes is required for an adequate examination here), but the evidence at trial revealed that no hazards had existed in the vessel? Clearly, the operator is liable for a failure to examine a working place “for conditions which may adversely affect safety and health.” Manalapan Mining Co. , 18 FMSHRC 1375, 1396 (Aug. 1996) (“[T]he determination of risk to be accorded to a failure to conduct the pre-shift exam should not turn on the fortuitous circumstance that the unexamined area did not contain the hazardous conditions the exam was designed to detect”) (opinion of Chairman Jordan and Commissioner Marks); Jim Walter Res., Inc. , 28 FMSHRC 579, 604 (Aug. 2006) (“because pre-shift examinations have a prophylactic purpose and because certain mine conditions are transitory in nature, later examinations are not sufficiently indicative of the conditions that may have existed at the time the area should have been examined”).                    The Chairman’s dissent/concurrence asserts that the Secretary is imposing a “presumption . . . that something could have been seen from the seventh floor that would have indicated the presence of a hazard.” Slip op. at 22. This is incorrect. We do not know what a competent examiner would have seen from the seventh floor before the accident occurred, because Davis did not view the tower from that perspective – as we hold a reasonably prudent, competent person should have done. But, more significantly, the conditions that might subsequently have been discovered are not relevant to the inquiry of whether an adequate examination was conducted in the first place.                  The Chairman’s dissent/concurrence also relies repeatedly on Davis’s assertion that he could see to the top of the vessel, beyond the seventh floor, from port holes on the sixth floor. Slip op. at 20. This ignores the fact that the Judge explicitly rejected this testimony (“I do not credit Davis’s testimony that he could see any loose material hanging from the sixth floor [portholes] and that he could only see straight across from the portholes on the seventh floor”). 40 FMSHRC at 584.                                                     Finally, our dissenting/concurring colleague’s reliance on Asarco, Inc., 14 FMSHRC 941 (June 1992), is misplaced. In Asarco , which involved a roof examination, the examiners testified that they had looked at the relevant area, and the Secretary did not dispute this assertion. The violation was based on the fact that a roof fall had occurred, rather than on evidence that an exam had not adequately been conducted. In contrast, Sunbelt’s liability centers on its failure to examine a portion of the “working place” – the finding of violation is not based on the fact that an accident occurred.                  The Judge’s finding that the portholes on the seventh floor were a reasonably necessary and accessible vantage point is supported by substantial evidence. Therefore, we affirm the Judge’s finding that Sunbelt violated the standard because Davis failed to act as a reasonably prudent examiner and did not perform an adequate examination.  

D.    
The
Judge Did Not Err in Finding that the Violation was S&S.

The Judge determined that the violation at issue was
S&S. 40 FMSHRC at 603. The operator argues that because there was no
violation, the Judge erred in finding that the violation was S&S. Crucially,
the operator did not claim that any of the other elements of the S&S
analysis were not met.

As set forth above, substantial evidence supports
the Judge’s finding of a violation, which was the only element of the S&S
analysis challenged by the operator. Furthermore, the exhibits and the
operator’s own witnesses noted the potential hazard of falling material, and
the standard requires the examination in order to identify such hazards. Finally,
the serious injury that resulted from an identified hazard here demonstrates
the significant potential for serious injury here. Therefore, the Judge’s
S&S determination should be affirmed.

E.     
The
Judge Erred in Finding that the Violation was a Result of High Negligence.

The
Judge found high negligence. The bases for his finding are that Sunbelt
“ignored” site-specific training requiring it to inspect working places for
falling material hazards and breached its duty to identify loose hanging
material. 40 FMSHRC at 604-05.

The Judge below
correctly stated that Commission Judges are not bound by the Secretary’s
characterizations and that in assessing negligence, a Judge must consider “what
actions would have been taken under the same circumstances by a reasonably
prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation.” 40 FMSHRC at 603 (citing Brody
Mining, LLC , 37 FMSHRC 1687, 1701-03 (Aug. 2015)). This is, of
course, the same as the normal civil law definition of negligence. The Judge
further correctly found that “the gravamen of high negligence is ‘an aggravated
lack of care that is more than ordinary negligence.’ Brody Mining , 37
FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co. , 20 FMSHRC 344,
350 (Apr. 1998)).” 40 FMSHRC at 603.

The Judge found that Sunbelt
demonstrated an “aggravated lack of care,” asserting Sunbelt “ignored”
site-specific training requiring it to inspect working places for falling
material hazards and did not identify a buildup of materials on the inside of
the upper compartment of the vessel. 40 FMSHRC at 605. We disagree. The record
simply does not support the notion that Davis showed an aggravated lack of
care, “ignored” the danger of falling material or that, had Davis gone to the
seventh floor, he would have observed loose and hanging material.

While we accept that
substantial evidence supports the Judge’s decision that Sunbelt erred by Davis’
failure to go to the seventh floor and therefore, was negligent, substantial
evidence does not support the claim that Sunbelt “ignored” the hazards of
falling material or would have found loose material if the Sunbelt inspectors
had looked through the portholes on the seventh floor. The totality of the
evidence shows a measure of respect for safety inconsistent with a finding of
an aggravated lack of care.

Jason
Oedel, the Safety Manager for Roanoke who at the time of the accident was the
Pyro Manager in charge of the pre-heat tower, inspected the pre-heat tower
twice before the day of the accident. On the latter of those inspections, Gary
Snyder, a manager for LVR, the subcontractor charged with cleaning the pre-heat
tower, accompanied him. Oedel looked through portholes on the seventh floor. He
clearly testified that he did not see any loose material that was in danger of
falling. Tr. 260, 282, 294-95, 298, 308-09.   

Oedel
testified that the inside of the upper compartment appeared to be a monolith —
that is, poured shotcrete over bricks used to form a consistent smooth surface
near the bottom of the chamber. Oedel explained that before the accident, the
interior material all “looked one color, one shape. It was completely smooth.” Tr.

308. He further testified:

Like I said,
when we went through — well, I went through twice myself — neither did Gary
Snyder — neither one of us saw that as a potential hazard, because we thought
it was all part of the monolithic. We didn’t know until after it had fractured
that there was buildup on there.

Tr.

298. [16]

This
testimony undercuts the view that going to the seventh floor certainly would
have revealed problems. Further, these views are consistent with LVR Foreman
Snyder’s view. Davis testified that he went to Snyder the morning of the
accident, which would have been after Snyder had examined the pre-heat tower
with Oedel. According to Davis, “I always go to him in the mornings at 7:00 to
meet with him about our next work area and what we are going to be doing. So I
went to meet with him that morning, and ask him what areas would he like us to
proceed with for our work. And he referred to stage four. And I asked him, had
it been inspected by him, Roanoke Cement? Was it safe for us to go in? And he
said, ‘[Y]es, everything is safe.’ You can go ahead and proceed with your
work.” Tr. 343.

Snyder’s
answer did not relieve Sunbelt of the obligation to do an adequate pre-shift
inspection. However, it does demonstrate that both LVR and Roanoke had
inspected the stage four vessel and did not see any danger of material falling
as the Judge simply speculates Davis would have found. Further, separate from
the Judge’s unfounded speculation of what Sunbelt would have seen through the
seventh floor portholes, many acts by Sunbelt demonstrate that it did not
engage in an aggravated lack of care or wholly fail to examine the upper
compartment. [17]

Davis testified that he
could see the upper compartment of the fourth vessel through the thimble. Indeed,
he testified he had a better look at it from the sixth than the seventh floor. Although
the Judge discredited the latter testimony, there is no doubt that Davis could
see through the thimble to the upper compartment. Pictures taken by the MSHA
inspector depict views of the upper compartment through the thimble. Indeed,
photographs taken by the MSHA inspector from the sixth floor porthole through
the thimble show an area that witnesses believed may have been the point from
which material fell. Tr. 75-77, 91-92, 307. Clearly, because it is visible in
the photograph, that area was visible from the sixth floor porthole and may
have been part of the monolith referred to by Oedel.

Davis in fact testified that he believed
he could see the area above better from the sixth level because of the
inability to see parts of the upper compartment of the vessel from the seventh
floor. Tr. 421. He also testified that there was sufficient light to conduct
the examination. He had 26 years’ experience conducting workplace examinations.
Tr. 325. Indeed, Davis had conducted approximately 100 to 130 workplace
examinations at the Roanoke cement plant. [18]
When asked, Davis supplied a cogent reason for his examination from the sixth
floor. He explained:

And my thoughts
was, looking from the sixth up through the seventh, I can see any loose
material hanging from there, and also I could see the thimbl[e] from the inside
and outside and the brick on the outside of the thimble.

Tr. 350-51.

We
accept the Judge’s decision on the violation but it is clearly not correct that
Davis “ignored” safety. Indeed, although the absence of testimony by Foreman
Douglas Redmond renders his participation immaterial to the adequacy of the
investigation, he conducted a second inspection. Multiple inspections the same
day show a concern for safety rather than a lack of care.

Moreover,
even after Davis’ examination did not disclose hazards, he had workers beat the
sides of the vessel in an effort to dislodge any material he had not seen. This
was not an aggravated lack of care and additionally undercuts the notion that
Sunbelt was blindly cavalier about safety.  

Further, two exhibits belie the Judge’s
notion that Sunbelt “ignored” overhead dangers. The Judge refers to Government
Exhibit 6, a pre-shift hazard assessment given to Sunbelt by Roanoke. 40 FMSHRC
at 604. The Judge fails to note, however, that it was Davis, the Sunbelt
examiner, who filled out the report. Davis expressly included “loose objects
falling” in his List of Potential Hazards. Thus, far from ignoring the hazard
of falling materials as the Judge asserts, Sunbelt’s examiner expressly noted
it in writing for the crew. Separately, Respondent’s Exhibit 10 is a Job Safety
Analysis used by Sunbelt to provide for the safety of workers. Sunbelt Foreman
Redmond completed it and specifically noted the danger of falling material. Rather
than ignoring task training by Roanoke, therefore, Sunbelt trained its own
employees on the concern for falling material. It is simply incorrect to assert
that Sunbelt “ignored” the concern of falling material because Davis later
examined the upper compartment through a position he thought was appropriate.

Although an examiner should avail
himself of every reasonably accessible perspective when examining for the type
of hazards present here, the actions of this experienced safety inspector do
not reflect aggravated misconduct. The steps Davis did take go significantly
beyond the Judge’s mischaracterization of the evidence as showing “a standard
of care slightly surpassing not conducting the examination at all.” 38 FMSHRC
at 1625.

We therefore
find that the violation here was a result of the operator’s ordinary
negligence. [19]

IV.             

Conclusion

As discussed above, we affirm the
Judge’s finding of a violation on the ground that a reasonably prudent examiner
would have used the seventh floor portholes to examine the portion of the
fourth vessel above the seventh floor. We also affirm the Judge’s finding that
the violation was significant and substantial. However, we reverse the Judge’s
finding of high negligence and instead find that the violation was a result of
ordinary negligence. Therefore, we remand this matter for a reassessment of the
penalty.

/s/
Michael G. Young

Michael G.
Young, Commissioner

/s/ William I.
Althen

William I.
Althen, Commissioner

Commissioner Jordan, Concurring in Part and
Dissenting in Part:

I join my colleagues, Commissioners Young and
Althen, in declining to consider the Appointments Clause issue and in affirming
the Judge’s finding that the area at issue was a working place. I further join
them in affirming the Judge’s finding of a violation and the Judge’s finding
that the violation was S&S, for the reasons set forth in their opinion.  

However, I respectfully disagree with their analysis
of the negligence issue and subsequent reversal of the Judge’s high negligence
determination. Instead, I would affirm the Judge’s ruling that the violation
was the result of Sunbelt’s high negligence. High negligence “suggests an
aggravated lack of care that is more than ordinary negligence.” Mach Mining ,
LLC, 40 FMSHRC 1, 5 (Jan. 2018). Here, the Sunbelt supervisor, who was
fully aware of the potential hazard of falling material, chose not to go up to
the seventh level of the tower while conducting his examination. The
supervisor’s actions “involved[d] a conscious choice to take actions with
knowledge of facts that would disclose to a reasonable foreman an unjustifiably
high risk of potentially fatal injury to a miner.” Lehigh Anthracite Coal,
LLC , 40 FMSHRC 273, 283 (Apr. 2018) (holding that operator’s conduct
amounted to reckless disregard).

Substantial
evidence supports the Judge’s finding that Sunbelt knew that the nature of the
work exposed miners to falling materials. 40 FMSHRC 573, 604 (Apr. 2018) (ALJ).
The Judge noted that Roanoke had provided the Sunbelt supervisor and his crew
with training instructing them to remain alert and check for overhead hazards. Roanoke
had instructed the supervisor, as well as all contractors performing work
inside the pre-heat tower that “[p]rior to vessel entry, inspect vessel
overhead and remove any potential loose material” (emphasis added). Tr.
149-50, Tr. 288 (testimony of Roanoke safety manager), Tr. 384. In fact, Jason
Oedel, a Roanoke supervisor responsible for the pre-heat tower, testified that
material could fall due to the cooling of the tower. Tr. 276-77. Thus, Sunbelt
was on notice that an adequate examination was especially important because of
these possible overhead safety hazards. In addition, as previously noted,
Davis’ pre-shift hazard assessment documenting the exam at issue listed
potential hazards of loose objects falling and dust. Gov’t Ex. 6. Nonetheless,
“Davis said he never thought of the area on the 7th level.” 40 FMSHRC at 604.

A finding of high negligence is also supported by
the fact that, when Roanoke and LVR personnel conducted an inspection, they
inspected each level of the pre-heat tower, including the seventh floor. This
indicates that going to the seventh floor was considered an integral part of
the inspection process.

In
short, the Judge here could reasonably conclude that the violation was due to
high negligence, and his finding is supported by substantial evidence. See,
e.g. , Mach Mining , 40 FMSHRC at 15 (affirming Judge’s high
negligence determination partly because an examiner conducted his inspection
while driving on a travelway, and stating that “the operator should have at
least ensured that a closer examination was made in areas more prone to
accumulations, especially in light of what the operator acknowledged as an
ongoing problem”); Matney, employed by Knox Creek Coal Corp. , 34 FMSHRC
777, 786 (Apr. 2012) (finding aggravated conduct in a section 110(c) case [20] for
failure to conduct an adequate pre-shift examination in part because the
examiner observed the relevant area from 65 feet away and from behind equipment
approximately 45 feet away).

For
the foregoing reasons, the Judge’s negligence ruling should be affirmed.

/s/ Mary Lu
Jordan

Mary
Lu Jordan, Commissioner

Chairman Rajkovich, Dissenting on Part
III C, D and Concurring on Part III A, B, and in Result Only, on the Issue of
Negligence:

I join the majority with regard to the
Appointments Clause and “working place” issues. I dissent with respect to
whether a violation of the standard was established by the Secretary. Considering
the split of opinion among my colleagues with respect to the issue of
negligence, I find no support in the record warranting a label of “high
negligence.” Accordingly, and in order to form a majority on that
issue, I concur in result only in the opinion of Commissioners Young and
Althen.

A.    
The
Appointments Clause Issue was Waived by the Respondent and an Adequate
Examination of the “Working Place” Includes the Area Above Both the Sixth and
Seventh Floors of the Fourth Vessel .

I join my colleagues in their rejection of the issue
raised by the Respondent regarding the Appointments Clause of the Constitution.
U.S. Const. Art. II, § 2, cl. 2. Our appellate proceedings are governed by
section 113(d)(2)(A)(iii) of the Mine Act. See 30 U.S.C.        § 823(d)(2)(A)(iii).
Accordingly, Commission Procedural Rule 70(g), 29 C.F.R. § 2700.70(g), mandates
that the scope of appellate review is limited to issues that were raised in the
Petition for Discretionary Review. Given that this particular issue did not
debut until the Respondent’s Reply Brief to the Commission, it is waived.

I also agree with the majority in their analysis of
what constitutes a “working place” under these particular facts. Under 30
C.F.R. § 56.2, a “working place” is any place in or about a mine “where work is
being performed.” The complicating factor, in this instance, is that this
particular structure is a multi-leveled facility with six vertically
connected conical vessels, each chamber-like with offsets and approximately fifty
feet tall. Regarding the examination at issue in this case, Sunbelt
employee-examiner Kendrick Davis testified that he conducted a working place
exam of the fourth vessel by standing on the sixth floor, looking through the
sixth floor portholes, and raising his head to look at the top of the vessel
beyond the seventh floor.       40 FMSHRC at 573, 583-84 (Apr. 2018) (ALJ).

As we unanimously found in the previous
appeal of the Judge’s summary decision in this case (38 FMSHRC 1619, 1626 (July
2016)), the examination standard [21]
requires “adequate” working place exams in the sense that such exams must
identify all hazards that a reasonably prudent examiner would identify. That is
just plain common sense. Common sense also dictates that any examiner must look
to the conditions around, below, and above to insure that any area is safe for
work to be performed. Davis, by his own testimony, looked above the sixth floor
level and therefore, defined the “working place” to include more than just the
sixth floor. Accordingly, the “working place” delineated by the majority as the
fourth vessel, including the areas above the sixth and seventh floors, is
proper in this case. [22]

B.     
There
was No Substantial Evidence of a Violation .

I cannot agree, however, with the majority finding
that there was a violation in this case. There was no substantial evidence of a
violation of 30 C.F.R. § 56.18002(a) here.

1. The Facts Show
   that there was an Adequate Examination .

On or about December
30, 2012, Roanoke Cement
Co., operator of the cement plant, which included this pre-heat tower, shut it down
and conducted its last
workplace examination of the area as part of the shutdown activities. Tr. 121-23. Once
the tower began cooling,
Roanoke employees commenced air-lancing through one-inch square portholes in an effort to blow down any “build-up” material. Tr. 108, 123-25, 259-60. Because of the intense
heat, no one performing the air lancing
could enter the tower at that
time. Tr. 122.

On January 2, 2013, Sunbelt
arrived on site and started
preparing to construct the scaffolding inside the preheat tower.
Gov’t Ex. 3, at 4. Roanoke instructed Davis, as well
as all contractors performing work inside the preheat tower, that “ [ p ]rior to vessel
entry inspect vessel overhead and remove
any potential loose material.” Gov’t
Ex. 7, at 3; Tr. 149-50,
288-92.

Davis [23]
testified that he took the elevator to the sixth floor of the pre-heat tower,
walked the floor looking for tripping hazards, and then v i s ually i n spe c t ed the in t er i o r of t h e vessel thr o u gh t h e three port
hole s on the s i x t h f l oor, “ l o o ki n g for l oose ma t erial, missing r efracto r y , l oose bric k ,
l oose
thimble s - a n y thing out of the or d i n ary . ”
Tr. 348-49. D a v i s t e s tif i e d
(credited by the Judge) t h at there was daylight
wh e n he per f ormed h i s w o rk p lace examination.
40 FMSHRC at 583. Davis testified that h e could see i n s i d e the vessel.
Tr. 36 3 . He testified that he could see
a ll the way u p to th e ceiling
of t he sev e nth f l oor and c o uld see the roof from t h e s i x th f l o o r up to the sev e nth . Tr. 349-5 0 . D a v i s noted that t he sixth flo o r port
holes gave a b e tter v a nta g e point
to ex a mi n e th e sev e n t h since
from the sixth floo r , “ y o u can see th e under-roof of the s i x t h floo r , and you
can see the top roof o f the
sev e nth floor fr o m the
s i x t h . ”
Tr. 349-50. As to this examination,
Davis testified that he did not see any “hanging material” nor did he see “any
hazard.” Tr. 351.

The Secretary presented one witness for testimony in
his case-in-chief—MSHA Inspector David Nichols. Nichols testified that he had
never been trained on how to look for hazards in a pre-heat tower. Tr. 180. He
had never been trained on how to look for hazards in cyclones. Id . He
had never performed any work in a cement plant. Id . He had never
performed any work in a cyclone. Id . He had never performed any work
related to scaffolding. Id . He did not know that the accident site was
“stage four” of the unit. [24]
Tr. 177. He had never seen the inside of the cyclone prior to the accident. Tr.

172. He had no evidence as to what the inside of the cyclone looked like prior
     to the accident. Tr. 179-80. Nichols did not know whether Davis could see all
     the way to the top of the vessel, above the seventh floor, from portholes on
     the sixth floor. Tr. 189. Nichols was not aware of any other employee ever
     being struck by falling material at the facility. Tr. 183. He did not find any
     issues with Sunbelt’s training program nor the training of its personnel. Tr.
     182-83.

Nichols began his investigation at the accident site
on the sixth level and took a series of photographs through those
port holes. Tr. 91. He testified that “[o]n the sixth floor, the concrete and
everything looks like the seventh .” Tr. 96 (emphasis added). He further
noted that:

There is no way
to get inside at the seventh level. There was no floor. There was no
scaffolding. There is nothing in there. There is an elbow. So I just basically
reached in through the open door and took the pictures from my camera.

Tr.
111.

There was no evidence presented in the record of any
direct concerns about conditions that needed to be immediately remedied during
the course of Nichols’ investigation. There was no evidence of any Section
107(a) Imminent Danger orders issued or even discussed. At the conclusion of
his inspection on January 8th, Nichols was on a telephone call at which he was
purported to have said, “ Well, I didn’t find anything that Sunbelt did wrong”
(emphasis added). Tr. 380. This quotation was cited in the Judge’s Decision (40
FMSHRC at 594) and never refuted at the hearing.

Two
days later, on January 10th, Nichols issued the citation, which is the subject
of this litigation, citing that Sunbelt “did not do an adequate work place exam
in the area they were working as there were hanging material overhead” and that
“the area above was never checked.” Gov’t Ex. 8. Yet, on cross-examination,
Nichols did not know , for a fact, that the material hitting the victim
actually came from the seventh floor , nor did he know how much
the material actually weighed. Tr. 178-79, 191. He could not pick out the exact
area from which anything fell. Tr. 206. More importantly, however, is that
Nichols admitted that, regarding the “build-up” that he saw, there was no
way to tell when or if it would ever fall. Tr. 179. That statement was
never refuted at the hearing.

2. The Secretary
   has Failed to Prove a Violation .

The
Secretary is required to prove a violation by a preponderance of the evidence.    
See Garden Creek Pocahontas Co. , 11 FMSHRC 2148, 2152 (Nov.
1989); Consolidation Coal Co. , 11 FMSHRC 966, 973 (June 1989). Regarding
this evidentiary standard, we have stated: “[t]he burden of showing something
by a ‘preponderance of the evidence,’ the most common standard in the civil
law, simply requires the trier of fact ‘to believe that the existence of a fact
is more probable than its nonexistence.’” In re: Contests of Respirable Dust
Sample Alteration Citations , 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd sub
nom. Sec’y of Labor v. Keystone Coal Mining Corp. , 151 F.3d 1096 (D.C. Cir.
1998). Here, the Secretary’s burden was to persuade the Judge that it was more likely
than not that an inadequate examination occurred through a combination of
direct and circumstantial evidence. The Secretary has fallen far short.

The
Secretary claims that the violation here is that Sunbelt’s examiner should have
gone to the seventh floor on his inspection. The presumption is that something
could have been seen on the seventh floor that would have indicated the
presence of a hazard. Therein lies the problem. The real question in this case
is – what should have been seen from the seventh floor?

The Secretary’s only witness could not identify that
“ something ,” nor could he say where it was. His own testimony was
about the presence of “build-up.” Yet, the presence of “build-up” was no secret
in this situation. That was precisely what this entire operation was focused
upon. The whole idea of this project was that some “build-up” was going to be
removed, any needed repairs would be done to the “monolith,” and damaged
“refractory bricks” were going to be repaired.

Obviously, this examiner actually saw the build-up,
and the monolith, and the refractory. [25]
The examiner saw things that the following clean-up crew was charged to remedy.
The purpose of the examination – what the examiner was really supposed to be
looking for – was whether the area was safe enough to install the scaffolding
so that the whole tower could be cleaned and/or repaired. Even Nichols,
himself, admitted there was no way to tell when or if the build-up that
he saw would ever fall .

By no means is the accident and serious injury here
to be discounted. Something fell from somewhere and hit this
miner. The prime focus should be to determine what happened and to take
measures to insure that it does not happen again. [26] Further,
the focus should hone in on what was loose, or fractured, or on the point of
material failure at the time of the examination.

That
is the question that went unanswered here. That is the key cadre of evidence
that is completely missing in this case.

To assert that something hit this miner, in and of
itself, is not dispositive of an inadequate examination. In Asarco, Inc. ,
14 FMSHRC 941 (June 1992) we concluded that:

Neither the
presence of loose materials, nor the fact that the roof fell, by themselves,
indicate that the area was not properly examined. Roof conditions in a mine are
dynamic; a miner can perform a thorough and competent examination as required
by the standard and determine that the roof is secure and yet, at a later time,
material can become loose and fall.

Id . at 946. In Asarco ,
an underground drill operator conducted an examination of his surroundings by
making a “visual examination of the area and found no cracks, discoloration,
loose ground, or fallen material on the floor.” Id . at 942. That same
operator was later found crushed under a slab that had fallen from the mine
roof and he died of the injuries sustained. Id . at 943. An MSHA
Inspector who arrived at the scene shortly after the incident concluded that
the ground fall that killed the victim was unpredictable. Id . at 944. On
the day after the accident, however, two MSHA investigators issued a citation
charging Asarco with a violation of failure to examine and test for loose
ground prior to the accident. Id . In Asarco , we stated:

The Secretary
introduced no evidence to show that the area was not examined before Norton
started working there on the day of the accident. The only evidence that the
roof was not examined is (a) the fact that part of the roof fell and (b) the
testimony of MSHA inspectors that they observed some areas of loose roof in the
heading at the time of the accident investigation.

Id . at 946.

In this case, there was evidence of an
examination. Davis, the examiner, testified that he could see a ll the way u p to th e ceiling
above t he sev e nth f l oor and c o uld see the roof from t h e s i x th f l o o r up to the sev e nth . Tr. 349-5 0 . Nichols did not refute Davis’ testimony
that he could see all the way to the top of the seventh floor from portholes on
the sixth floor.     Tr. 189. The Secretary only asserts that Davis did not
physically go to the seventh level. Unlike Asarco, the MSHA inspector,
here, had no evidence or any way to tell when or if anything would ever fall.

No witnesses were specifically called to provide
expert testimony in this case. No testifying witness pointed to any cracks
anywhere in the structure to predict a failure. No witness pointed to any
stress points. Regarding any differences in coloration, no witness testified as
to what any such variations would mean regarding any imminent failure.

There was a spot on the inside wall speculated to be
an area from which some material had fallen. Tr. 75-77, 91, 307. Given that the
exhibit photo of that area was taken by Nichols from the sixth floor ,
obviously this area was visible from the sixth floor. Even if that were the
actual area from which this material had fallen, there is still no analysis of
that spot. There was no expert testimony of the strength of material at that
spot. There was no discussion of any cracking or stressing seen around
that spot. To the point, there was no expert testimony to say, “this material
was likely to fall and here’s why it should have been seen on an examination.”

3. An Examiner must
   be given Specific Guidance On Where an Examination was Deficient and Why .

As
noted in the Preamble to the Mine Act:

[T]here is an
urgent need to provide more effective means and measures for improving the
working conditions and practices in the Nation’s coal or other mines in order
to prevent death and serious physical harm, and in order to prevent
occupational diseases originating in such mines.

30
U.S.C. § 801(c). A workplace examination is crucial to providing the most
effective means and measures for assessing working conditions and practices. It
is therefore imperative that an examiner be given thorough training on what
conditions to observe. It is also imperative to give an examiner a thorough
explanation of where his or her examination has been deficient. That is my
concern with the majority opinion in this case. There is no guidance.

The
examiner, here, is told only that he should have gone to the seventh floor of
the tower – but he is not being told what, if anything, that he missed. What
were any signs of material failure that he should have seen? What conditions of
the “build-up” signaled imminent failure? What were any signs of loose
monolithic structure? What indicated any break-down of the refractory bricks?

The
investigating inspector actually went to the seventh floor, and purportedly
looked directly at the seventh floor area from that vantage point. From that
vantage point, looking straight into the seventh floor area, the inspector
could not find the source of the falling material. He found nothing but the
existence of build-up, monolith and refractory brick. At the time of these
observations, Nichols gave no indication of anything that needed to be
corrected immediately to prevent others from encountering hazards. The
inspector’s own conclusion, after direct visual inspection, was that there was
no way to tell when or if it would ever fall. His initial unrefuted statement
was that he did not find anything that Sunbelt did wrong. Tr. 380. We
cannot blame the examiner for something no one else could find.

The
Secretary has failed to prove a violation by a preponderance of the evidence. In
fact, the evidence, as a whole, shows quite the opposite. There was no
substantial evidence of a violation of 30 C.F.R. § 56.18002(a) and I would reverse the Judge’s
findings on that issue and respectfully dissent.

C.
Alternatively, Even if There Was a Violation, it was Due to No More than
Ordinary Negligence.

If my view had prevailed—that there was no
violation—that would be the end of the matter. When there is not a finding of
violation, the issue of negligence is never reached, as a finding on operator
negligence is only necessary when the Commission assesses a penalty. See
30 U.S.C. § 820(i). My colleagues, however, have upheld the finding of violation,
and both parties have raised important concerns regarding an operator’s duty of
care under section 56.18002(a). As noted earlier, I find nothing in the record
to support the notion of an aggravated lack of care, warranting a label of
“high negligence,”
and
neither do Commissioners Althen and Young.

It defies logic that if a majority of Commissioners
find no evidence of “high negligence” in this case, the ultimate decision would
be a finding of “high negligence.” Moreover, given my view that there was no
violation, it would be wholly inconsistent for me to find that the record
supports the notion of an aggravated lack of care, warranting a label of “high
negligence.”

In its Petition for Discretionary Review, Sunbelt
specifically requested review on the finding of negligence. As an appellate
body we are obligated to, whenever possible, fully vote on all issues
presented, regardless of the resolution of underlying issues. In Douglas v. Comm’r
of Internal Revenue , 322 U.S. 275, 287 (1944), the Supreme Court stated
“[t] he members of this Court who join in the
dissent do not reach this question but their position on other issues results
in their voting for a reversal of the entire judgment of the” court below, thus
determining the result of the appeal. More recently, however, in Dep’t of
Commerce v. New York , 588 U.S. ___, 139 S. Ct. 2551, 2596, 2606 n.15
(2019), Justice Alito, concurring in part and dissenting in part, explained
that “[a]lthough I would hold that the Secretary [of Commerce]’s decision is
not reviewable under the [Administrative Procedure Act], in the alternative I
would conclude that the decision survives review under the applicable
standards. I join Parts IV–B and IV–C on that understanding,” thus determining
the outcome of those parts of the case.

With the other Commissioners having split on the
issue of the degree of negligence that the Secretary established, my vote in
the alternative is with Commissioners Althen and Young on the lower level of
negligence.  Contrary to my concurring colleague’s opinion set forth below, Douglas and, most
recently, Dep’t of Commerce are precisely on point and consistent with my reasoning
to reach this opinion. Following Justice Alito’s lead, I dissent on
Part III C, D and concur on Part III A, B, and in result only, on the issue of
negligence.

/s/ Marco M.
Rajkovich, Jr.

Marco M.
Rajkovich, Jr., Chairman

Commissioner Traynor, Concurring with Commissioner
Jordan:

I join Commissioner Jordan’s opinion in its entirety. However, I write
separately to note the Commission in this case has not arrived at a valid
majority necessary to reverse the Judge’s negligence determination.

For the first time, a Commissioner attempts to cast
two “votes” on a single issue. We arrived at a 2-2 split on the question of
whether the operator’s violation was the result of high or ordinary negligence,
with a fifth dissenting Commissioner deciding no violation occurred and
therefore the operator was not at all negligent. Unhappy as we all are with
split decisions, my dissenting colleague purports to cast a second vote in an
attempt to form a majority decision finding de novo that the record
evidence compels the conclusion that the operator exhibited ordinary
negligence. This second vote to find ordinary negligence is plainly
inconsistent with his principal decision that the operator was not at all
negligent.

And it is this inconsistency that prevents my
dissenting colleague’s decision that there was no negligence from counting
toward a majority finding the operator was negligent. The cases he cites in
support of his claim to a second vote are inapposite, as neither involves a
jurist taking two inconsistent positions on a single issue.

In Douglas v. Comm’r of Internal Revenue , 322
U.S. 275 (1944), the Supreme Court took review of an Eighth Circuit decision
affirming a tax agency’s rule counting a capital depletion deduction as
reportable income in four consolidated administrative tax cases. But in one of
the four cases, the Eighth Circuit had reversed the tax agency’s decision to
exclude the depletion deduction from the income of a taxpayer who saw “no tax
benefit” from the deduction due to a net negative income. Douglas , 134
F.2d 762, 766 (8th Cir. 1943). In disposing of the fourth case, the Court
counted the votes of two dissenting Justices who had not reached the issue in
dispute – but had voted to reverse the Eight Circuit’s decision in its entirety
– as votes to reverse as to the fourth case. [27]  

The Supreme Court more recently counted a dissenting
Justice’s view to form a majority on which the other Justices were split. Dep’t
of Commerce v. New York , 588 U.S. ___, 139    S.Ct. 2551 (2019). In Dep’t
of Commerce , the dissenting Justice’s decision that a regulation was not
subject to judicial review was counted to form a majority reaching the same
result in a consistent decision that the regulation survives judicial review. Id.
at 2596, 2606 n.15.

In both of these cases, the decision of a dissenting
jurist was incorporated by the majority as a vote that was consistent with the
result of the dissent. But my dissenting colleague in this case seeks to have
his decision that the operator was not negligent and therefore should pay no
civil penalty counted toward a decision that the operator was in fact negligent
and liable for a penalty. There is no coherent logic or precedent for resolving
a split this way. Neither Douglas nor Dep’t of Commerce is
authority for the counterintuitive proposition that a dissenting jurist may be
counted to form a majority position that is inconsistent with the decision he
reached in dissent.

My dissenting colleague could have formed the
majority he seeks. Jurists who would prefer to dissent often nevertheless file
a “reluctant concurrence” to create a majority and avoid a split decision while
nevertheless expressing their disagreement with that majority decision. See
e.g ., Gertz v. Robert Welch, Inc ., 418 U.S. 323, 354 (1974)
(Blackmun, J., concurring) (“If my vote were not needed to create a majority, I
would adhere to my prior view. A definitive ruling, however, is paramount”). Had
he filed a “reluctant concurrence” with the opinion of Commissioners Althen and
Young, my dissenting colleague would have been able to set forth in that opinion
every one of the views he expresses in dissent. And there would be no cause to
question the existence of a valid majority on the issue of negligence, which I
reluctantly must.

/s/ Arthur R.
Traynor, III

Arthur
R. Traynor, III, Commissioner

[1] Section 56.18002(a) provides that “[a] competent person . .
. shall examine each working place at least once each shift for conditions
which may adversely affect safety or health.” 30 C.F.R. § 56.18002(a) (2017) (amended Apr. 9, 2018).

[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 operator
also claims that it lacked notice that exams of working places must be
“adequate.” However, as set forth below, this issue was already resolved in our
prior decision on this matter.

[4] When reviewing
an administrative law judge’s factual determinations, the Commission is bound
by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.       
§ 823(d)(2)(A)(ii)(I). “Substantial evidence” means “‘such relevant evidence as
a reasonable mind might accept as adequate to support [the Judge’s]
conclusion.’” Rochester & Pittsburgh Coal Co. , 11 FMSHRC 2159, 2163
(Nov. 1989) (quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229
(1938)). Under the substantial evidence test, the “possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.” Sec’y on
behalf of Wamsley v. Mutual Min., Inc. , 80 F.3d 110, 113 (4th Cir. 1996)
(citation omitted).

[5]
An air lance uses “compressed air . . . blown . . . to free choked passages.” U.S.
Dep’t of Interior, A Dictionary of Mining, Mineral and Related Terms 21
(1st ed. 1968).

[6] The pre-shift
hazard assessment form indicated that Davis conducted his exam at 7:00 a.m. However,
the Judge credited Davis’s testimony that he met with an individual at 7:00
a.m. for approximately 20 to 30 minutes and began to examine the fourth vessel
afterwards. 40 FMSHRC at 583.          

[7] A “headache
board” is a board placed above the point where miners would be working to
protect them from falling material.

[8] This provision
of the Mine Act authorizes the Secretary to supervise and direct rescue and
recovery activities in a mine.

[9]
The Commission further found:

The Commission has
consistently applied the reasonably prudent person test to broadly worded
standards. See U.S. Steel Mining Co. , 27 FMSHRC at 439. The reasonably
prudent person test provides that an alleged violation is appropriately
measured against whether a reasonably prudent person, familiar with the factual
circumstances surrounding the allegedly hazardous condition, including any
facts peculiar to the mining industry, would recognize a hazard warranting
correction within the purview of the applicable standard. Spartan Mining
Co., Inc. , 30 FMSHRC 699, 711 (Aug. 2008);  see also Asarco, Inc. ,
14 FMSHRC 941, 948 (June 1992);  Alabama By-Products Corp. , 4
FMSHRC 2128, 2129 (Dec. 1982).

38 FMSHRC at
1626 (footnote omitted).

[10] Applying this
rule in Central Sand and Gravel Co., 23 FMSHRC 250, 261 (Mar. 2001), the
Commission declined to consider an issue which the petitioner did not raise in
its PDR, even though the petitioner belatedly raised the issue in a subsequent
appellate brief.

[11]
By “latent” the operator apparently meant that material that later fell could
not have been discovered before the material fell. But there is no evidence to
support this theory because neither Davis nor any other qualified person
examined the area from the seventh floor portholes before the accident.

[12] Credibility
determinations “reside in the province of the administrative law judge’s
discretion, are subject to review only for abuse of that discretion, and cannot
be overturned lightly.” Dynamic Energy, Inc. , 32 FMSHRC 1168,
1174 (Sept. 2010) (citing Buck Creek Coal Co. , 52 F.3d 133, 135
(7th Cir. 1995)); see also Farmer v. Island Creek Coal Co. , 14
FMSHRC 1537, 1540-41 (Sept. 1992). When reviewing a Judge’s credibility
determination, we simply review whether his credibility determination was amply
supported by factual evidence, not whether we would have made the same
credibility determination as the Judge.

[13] The record
contains evidence that another Sunbelt employee, Douglas Redmond, examined the
fourth vessel before the shift began on the day of the accident. However, the
operator does not appeal the Judge’s decision to ignore the alleged working
place exam of the upper compartment of the vessel conducted by Redmond. Therefore,
there is no dispute in this appellate proceeding that Davis bore the
responsibility to conduct Sunbelt’s working place exam of the fourth vessel. 40
FMSHRC at 583, 596.

[14] The Judge
credited Davis’s testimony that during his exam there was first light at
daybreak over Nichols’ testimony suggesting that the working place would have
been dark during Davis’s exam. However, the Judge did not discuss the exact
amount of light in the fourth vessel during Davis’s exam. 40 FMSHRC at 583.

[15] Davis claimed
that he could only see straight across through the seventh floor portholes. 40
FMSHRC at 584.

[16]
The opinion notes that at one point during the hearing, Oedel testified that
Sunbelt inspectors should have gone to the seventh floor. It does not note that
Oedel separately testified that it was not necessary to go to the seventh
floor. During a lengthy examination by the Judge himself, the Judge and Oedel
had the following colloquy, “Q. Do you know whether he went to the seventh
level? A. Me personally? Q. Yeah. A. No. Q. In your judgment, should he have
done so? A. No.” Tr. 313.

[17]
It appears that the occurrence of a serious injury weighed heavily on the
Judge’s negligence consideration. The Judge said, “The opening statement,
although it is not evidence in this Court, said a serious injury occurred,
which is high negligence.” Tr. 233.

[18]
Davis had worked at Roanoke for the past 13 years during which time he
conducted 8 to 10 examinations each year. Tr. 335.

[19] The Judge made
a laudably thorough and independent penalty assessment in which he considered
and evaluated the facts and circumstances in the context of his findings on the
penalty criteria. Nonetheless, because a change in the degree of negligence is
an important penalty consideration, we remand the case for reassessment of the
penalty.

[20] Section 110(c)
of the Mine Act, 30 U.S.C. § 820(c), provides for individual liability under
certain circumstances.

[21] The standard provides that
“[a] competent person designated by the operator shall examine each working
place at least once each shift for conditions which may adversely affect safety
or health. The operator shall promptly initiate appropriate action to correct
such conditions.” 30 C.F.R. § 56.18002(a) .

[22] While it would
be optimum to establish defined boundaries of a “working place” for

concentration of efforts on examination, a general rule is difficult to
formulate for multi-leveled facilities like this one. However, again, common
sense dictates that conditions around, below,

and above must be examined to insure safety.

[23] Davis had 26 years of experience
working with scaffolding, safety supervision, and workplace
examinations (Tr. 324-25) and
was trained to recognize potential
hazards related to scaffold erection. Tr. 326-27, 329; R. Ex. 9. Davis
testified that he had never received
any reports of material falling inside the preheat tower,
and never had an injury or accident
on his crew. Tr. 335-37.

[24] Nichols did not
know the height of the tower or the height of each stage. Tr. 183.  Other than
the dimensions of the porthole into which he peered, he took no measurements,
at all, during his investigation. Tr. 186-87.

[25] Both the
monolith and refractory were part of the design and not excess build-up of
material.

[26] Subsequent
remedial measures (Tr. 124-25) were taken in the manner in which the
removal/repair process proceeded post-accident. While this goes to the heart of
making sure this situation does not occur again via another process, it still
leaves unanswered as to what should have been seen on an examination.

[27] More
specifically, in Douglas , the Supreme Court voted 6-2 to affirm the
Court of Appeals decision approving the depletion deduction rule, with one
Justice recused from the case. 322 U.S. at 281, 287, 291. But on the question
presented in the fourth case, whether a taxpayer who received ‘no tax benefit’
must report the deduction, the Supreme Court split. The two Justices who
dissented from the majority affirming the Court of Appeals’ approval of the
depletion deduction rule were counted with the vote of two other Justices who
would reverse the Court of Appeals only on the agency’s decision that the
deduction should be excluded from income where the taxpayer sees “no tax
benefit” due to negative net income. With four Justices on the other side of
the “no tax benefit” issue, the Court arrived at a split 4-4 decision. In sum,
the Court added two dissenting Justices’ votes to reverse the Court of Appeals
in its entirety with two other Justices’ votes to reverse the Court of Appeals
in the fourth case to arrive at a split decision affirming the fourth case.