Newmont USA, Limited v. Secretary of Labor

Plain-English summary

Newmont failed to install adequate barricades and warning signs at unventilated headings in its Midas Mine after shutting down auxiliary fans and tying off ventilation bags. The Commission had affirmed the violation, reversed the ALJ's S&S finding, and returned the unwarrantable-failure and penalty issues for reconsideration. Judge John Kent Lewis found unwarrantable failure because Newmont had received repeated citations and direct instructions about acceptable barricades, could install snow fencing quickly, and continued resisting compliance over minor production delays. He treated the violation as non-S&S and unlikely to cause harm under the Commission's ruling, but found the operator's aggravated conduct warranted a substantial penalty. The proposed $35,500 penalty was reduced to $20,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.8528
• Outcome: The non-S&S violation was found to result from unwarrantable failure, with a $20,000 penalty.
• Key point: Repeatedly ignoring clear barricading instructions can be unwarrantable failure even when the resulting violation is not S&S.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

NEWMONT
USA, LIMITED,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH    

ADMINISTRATION
(MSHA),

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH    

ADMINISTRATION
(MSHA),

Petitioner

v.

NEWMONT
USA, LIMITED,

Respondent

CONTEST
PROCEEDING

Docket
No. WEST 2010-652-RM

Citation
No. 6482848; 01/26/2010

Mine
ID: 26-02314

Mine:
Midas Mine

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2010-1584-M

A.C.
No. 26-02314-224579

Mine:
Midas Mine

DECISION ON
REMAND

Appearances:               Laura
C. Bremer, Esq., Office of the Solicitor, U.S. Department of Labor, San
Francisco, CA, for the Secretary

Laura E. Beverage, Esq., Jackson Kelly,
PLLC, Denver, CO, for the Respondent

Hiliary N. Wilson, Esq., Newmont Mining Corporation, Elko, NV, for the Respondent.

Before:                        Judge
Lewis

Procedural
History

On January 5,
2012, the undersigned ALJ issued a decision in Docket Nos. WEST 2010-652-RM and
WEST 2010-1584-M.[1]
In its decision this Court found that the Respondent mine operator, Newmont USA
Limited (“Newmont,”) had violated 30 C.F.R. § 57.8528[2], that the
violation was significant and substantial (S&S) in nature, that the
violative conduct did not constitute an unwarrantable failure, and that the
proposed civil penalty of $35,500.00 should be reduced to $5,000.00.[3]

The Secretary and Respondent
filed cross petitions for discretionary review, which the Commission granted on
February 13, 2012. In its March 31, 2015 remand decision, the Commission
affirmed this Court’s finding of violation, vacated and reversed this Court’s
S&S finding, and vacated and remanded this Court’s unwarrantable failure
finding and penalty assessment.

After holding a telephone
conference at which both parties agreed that a supplemental hearing would not
be necessary, this Court set a briefing schedule for both parties to address
the issues that were subject to the Commission’s remand order. After careful
review of the total record and the parties’ briefs, this Court issues the
within remand decision.

Summary of the
Testimony and Factual Record

The ALJ hereby
incorporates the summary of testimony as contained in his January 5, 2012
decision and factual background as contained in the Commission’s March 31, 2015
remand decision as though fully recited herein. Newmont USA Ltd., 34
FMSHRC 146 (Jan. 2012); Newmont USA Ltd., 37 FMSHRC 499 (Mar. 2015).

Findings of
Fact and Conclusions of Law

I.                  
Review
of Commission Decision

In its March 31,
2015 remand decision the Commission[4]
upheld my finding that §57.8528 had been violated in that the operator had
failed to barricade the headings at issue and had failed to adequately post
signs against entry. Newmont USA Ltd., 37 FMSHRC 499, at 501. The
headings were “unventilated” under the language of the standard because the
operator had shut down the auxiliary fan and had tied off the ventilation bags
in the headings. Newmont USA Ltd., 37 FMSHRC 499, 502 (Mar. 2015).

The Commission
noted that the term “unventilated” is not defined in the standard and
essentially held that the Secretary’s interpretation (and this Court’s finding)
that air must sweep the face in a manner that would provide oxygen and clear
contaminants was “clearly” reasonable and entitled to deference. Id., 503-5.
Noting further that the Secretary’s interpretation of the term “unventilated” was
consistent with the standard’s purpose -- “to protect miners from the dangers
posed by the headings with inadequate oxygen and accumulations of noxious
gases” – the Commission held that the term “unventilated” includes airflow that
is insufficient to sweep a heading’s face and that the term “unventilated” in §57.8528
includes the failure to provide sufficient airflow to sweep the face. Id.,
504, see also Tr. 271.

In considering
whether the violation was S&S in nature under the four step analysis in Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), this Court found at the second step
that the discrete safety hazard contributed to by the violation was that a
miner might “access” an unventilated area, that was not properly barricaded,
and “be overcome by noxious air or lack of oxygen.” Newmont USA, Ltd.,
34 FMSHRC 161 (Jan. 2012), emphasis mine.

The Commission
expressly upheld my finding that there was a violation of a mandatory safety
standard contained in §57.8528. However, it did not explicitly state whether it
agreed with my description as to the specific nature of the discrete safety
hazard contributed to by the violation.

In his
concurring and dissenting opinion, Commissioner Cohen observed that while I had
articulated the relevant hazard my description was over inclusive: “it was
sufficient to describe the relevant hazard as a danger that a miner will access
the area and be exposed to noxious air or the lack of oxygen.” Newmont
USA Ltd., 37 FMSHRC 499, at 508 (Mar. 2015) (Cohen, Comm'r., concurring in
part and dissenting in part).

As set forth
herein, this Court has heavily relied upon Commissioner Cohen’s insightful
analysis in deciding the within remanded matters.[5]

In its majority
decision the Commission referred to my finding that the barricade procedures
utilized by Newmont did not reduce the reasonable likelihood of miners
suffering exposure to toxic gases or a lack of oxygen. Newmont USA Ltd.,
37 FMSHRC at 504. However, in its S&S analysis, the Commission again
appears to describe the hazard posed as “the build-up of toxic gases or lack of
sufficient oxygen.” Id., at 505.

In hindsight, perhaps
a better articulation of the discrete safety hazard posed by the violation – as
suggested by Commissioner Cohen – may have compelled a different holding by the
Commission as to my S&S determination. However, in following the directives
of the Commission in its remand order, this Court shall assume that the
discrete safety hazard posed was that of miners being overcome by noxious or
oxygen-deficient air.

It is worth noting that in a recent
decision, my distinguished colleague, ALJ William Moran, expressed similar
regrets regarding his description of the second Mathies element and the
Commission’s reversal of his S&S determination possibly because of such. Oak
Grove Resources, LLC, SE 2009-261-R (Apr. 2016), at 4. Like Judge Moran, I
believe that the recent holding in Knox Creek Coal Corp. v. Secretary of
Labor, 811 F.3d 148 (4th Cir. 2016), may have some relevance to the instant
matter. In Knox Creek Coal, the Fourth Circuit held that “for a
violation to contribute to a discrete safety hazard, it must be at least somewhat
likely to result in harm.” Knox Creek Coal Corp., 811 F.3d 148, 162 (4th
Cir. 2016). The Circuit Court further noted that the legislative history of the
Mine Act suggests that Congress did not intend the S&S determination to be
a particularly burdensome threshold for the Secretary to meet and that Congress
intended all except technical violations of mandatory standards to be
considered Significant and Substantial. Id., at 163.

I fully recognize that I am bound by the
Commission’s reversal of my S&S determination. However, I would submit that
a Knox Creek Coal analysis of the discrete safety hazard contributed to
by the violation – whether it be exposure to lack of oxygen or noxious
gases in unventilated headings or being overcome by such – would
indicate that the presence of noxious gases or inadequate oxygen in
unventilated headings should be assumed and that there was a sufficiently
reasonable likelihood that the hazard contributed to would result in an injury so
as to support an S&S determination.

As noted in my original decision, by
failing to adequately guard unventilated headings the mine operator contributed
“to the chance that a miner will underestimate the level of danger, access the
area and be overcome by noxious air or a lack of oxygen.” Newmont USA, Ltd.,
34 FMSHRC at 161.

The record included evidence submitted
by the operator suggesting a danger of noxious gas or oxygen-deficient air in
unventilated headings. Multiple slides in the operator’s Power Point
presentation discuss the risk of spontaneous gas build-up. One slide, titled
“Naturally Occurring Contaminants” notes the hazard of “Gases released into the
mine or from rock strata.” RX-7 (emphasis added). Another slide, titled
“Unwanted Mine Atmospheric Conditions” warns specifically against “Stagnate
(sic) Air – No Air Flow: … stratified air, or high gas concentration,” within
the Midas Mine. RX-7.

In reversing my S&S determination,
the Commission cited testimony of the mine supervisor, Sid Tolbert, and mine
manager, Mark Ward: “[f]urther, the operator’s witnesses testified that the
rock strata of the mine would not allow for any loss of oxygen to occur, a
point which the Secretary did not dispute. Tr. 256, 291.” Newmont USA Ltd.,
37 FMSHRC at 505. Tolbert asserted at hearing that sufficient air could be
circulated through tied off ventilation bags. Tr. 271. However, Tolbert further
acknowledged that without fans operating, air will not sweep the face of
unventilated headings. Tr. 271. Newmont’s policy, in case of auxiliary fan
failure, is to evacuate the area until the problem is resolved. Tr. 326. This,
I would submit, suggests the operator’s materials and practices acknowledged
the potential dangers of even a briefly unventilated heading. Further, in
assessing the probability of harm under Knox Creek Coal such would be
supportive of an S&S determination.

Finally, while the Commission left the
term “non-gassy” undefined and although I found that the mine itself may
not have emitted gases, I also found that Respondent ran diesel and other
equipment in the mine which did emit combustible gases that could build up over
time in unventilated areas. Newmont USA, Ltd., 34 FMSHRC at 162.

Given that Respondent’s own training
materials, as well as its company policy, acknowledged the risks of spontaneous
gas build-up and oxygen deficiency in unventilated areas, I would further
submit that the third element of Mathies would be satisfied utilizing
the Knox Creek Coal approach to likelihood of harm.

See also the recent
decision of my esteemed colleague, ALJ Thomas McCarthy, at Northshore Mining
Company, No. LAKE 2015-340-M, slip op. at 1 (April 11, 2016). In his
decision Judge McCarthy also perceptively examines how the recent holding
in Knox Creek Coal appears to shift the focus of the S&S analysis
from the third to the second Mathies prong and to restrict consideration
of the facts bearing on the reasonable likelihood of injury under the third
prong. Northshore Mining Company, slip op., at 8.

Judge McCarthy observed that under Knox
Creek Coal the occurrence of the hazard should be assumed under the
third prong of Mathies. Evidence of the likelihood that the hazard will
occur should not be considered at the third prong; rather the inquiry is
whether the hazard, assuming it occurred, would result in serious injury. Id.,
8.

Judge McCarthy further notes a similar Mathies
analytical approach suggested by the Seventh Circuit in Peabody Midwest
Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014). In Peabody
Midwest Mining, the Seventh Circuit held that the “question is not whether
it is likely that the hazard (a vehicle plummeting over the edge) would have
occurred ‘but rather’ whether, if the hazard occurred (regardless of
likelihood) it was reasonably likely that a reasonably serious injury would
result.” Northshore Mining Company, at 8, citing Peabody
Midwest Mining, 762 F.3d 611, at 616.

Utilizing the analytical approach to Mathies
under Knox Creek Coal and Peabody Midwest Mining, the
undersigned submits that once the discrete safety hazard contributed to by
violation (miners accessing unventilated headings and being exposed to noxious
fumes and/or lack of oxygen) was established at Mathies’ second prong,
its occurrence should have been presumed under the third prong of Mathies,
and that further, given the case evidence presented, it was reasonably likely
that a reasonably serious injury would result. Thus, the analytical framework
within Knox Creek Coal and Peabody Midwest Mining would appear to
support my initial S&S finding.

II.               
The Operator’s
Belief That it Was in Compliance Was Not Objectively Reasonable

In its remand
order the Commission found that this Court had erred in vacating the
Secretary’s unwarrantable failure designation by, inter alia, failing to
determine whether Newmont’s belief that it was in compliance was objectively
reasonable:

The
Judge erred by failing to determine whether the operator's belief that it was
in compliance was objectively reasonable. The Judge found that “Hirsch gave
‘operators specific guidance about what the Western District would accept as a
barricade,”’ but no guidance regarding when a barricade must
be used. 34 FMSHRC at 164. The Judge therefore concluded that the operator
possessed a good faith belief that its policy of roping off headings that were
to be worked in the near future in non-working areas complied with the
standard. His analysis, however, overlooks the fact that, as a matter of law,
an operator's belief that it is in compliance constitutes a defense to an
unwarrantable designation only if the belief was objectively reasonable. See
IO Coal, 31 FMSHRC at 1356-60. The Judge erred by failing to make a finding
as to whether the belief was “objectively” reasonable and explaining the
reasons for such a finding.

We
remand the case to the Judge to make factual findings on the elements of an  

unwarrantable failure and whether the operator had an objectively reasonable
belief that the rope and sign utilized by the operator complied with the
regulation.

Newmont USA, Ltd., 37
FMSHRC at 505-6.

The Secretary
contends that MSHA had clearly provided notice to the Respondent that its use
of roping and sign procedures in headings – where fans were shut down and/or
where ventilation bags were tied off – violated §57.8528. Thus, any belief that
the Respondent held that such measures complied with the standard was
objectively unreasonable. Pet’r’s Opening Brief on Remand, 11.

This Court found
that the Secretary’s arguments on this point to be much more persuasive than
the Respondent’s counterarguments.

Given MSHA’s
repeated guidance to Newmont regarding the types of barricades permitted in
areas where ventilation bags had been tied off, the operator’s asserted
subjective belief that it was in compliance by using roping and signs cannot be
deemed reasonable. See also New Warwick Mining Co., 18 FMSHRC 1365, 1371
(1996) (holding that an operator’s efforts at compliance are not reasonable
when the operator chose to act in a manner contrary to MSHA’s guidance).

The
unreasonableness of Newmont’s purported subjective belief is further confirmed
in light of Assistant District Manager Hirsch’s description of a near fatality
at Miekle Mine when miners walked into an area where the unventilated tubing
had been tied off. The six citations issued in October of 2009 should have
dispelled any question in the minds of Newmont’s management from the June
meeting as to when and what barricades were needed.

In
reviewing the record this Court must now conclude that Respondent’s failure to
erect mandated barricading was very probably due to a “contest of wills”
between the mine operator and MSHA rather than any objectively reasonable
belief of the Respondent as to its compliance. The confrontation between
Inspector Stull and McFarlane regarding the operator’s use of a chain across a
heading during an earlier inspection in which McFarlane emphasized the
operator’s intention not to barrier up all headings that were going to be mined
soon is revelatory. See also Tr. 145-156 and Pet’r’s Opening Brief on
Remand at 15.

In concluding
that the operator’s belief that it was in compliance was not objectively
reasonable, this Court again found the analysis of Commissioner Cohen to be
particularly instructive:

My colleagues
rightly conclude that the Judge erred by failing to make a finding on whether
Newmont's belief was objectively reasonable. However, I would go further and
find, under the facts in this case, that any belief which Newmont had that its
procedures complied with the regulations was not objectively reasonable.

Newmont USA Ltd., 37 FMSHRC at
510 (Cohen, Comm'r., concurring in part and dissenting in part).

Commissioner
Cohen noted multiple instances where MSHA explicitly provided notice to the
operator that Newmont’s practice of barricading headings with rope and signage
was not sufficient and constituted a violation of the Mine Act. First, there
was the June 2009 meeting in Elko, NV, where MSHA Assistant District Manager
Kevin Hirsh gave specific guidance as to what MSHA deemed to be an acceptable
barricade under 30 C.F.R. § 57.8528. Id., at 510-1. Commissioner Cohen notes
that this Court did not “take into consideration what occurred between the June
2009 meeting and the issuance of Order No. 6482848 on January 26, 2010.” Id.

Commissioner
Cohen refers, of course, to the six separate citations issued between October
14 and October 22, 2009, five of which concerned either partial or absent
barricades in headings. Id., at 511. “Any question in the minds of
Newmont’s management from the June meeting as to when a barricade was
needed should have been dispelled by the six citations issued in October.” Id..
Relatedly, Commissioner Cohen recounts the October 20, 2009 confrontation
between Inspector Stull and Midas Health and Safety Specialist McFarland. Id.
McFarland’s outburst exclaiming that “they’re not going to put a barrier up in
all the headings that are going to be mined soon,” as well as Stull and his
supervisor Jim Fitch’s subsequent hour-long meeting and clarification with
Midas staff regarding barricading requirements under 30 C.F.R. § 57.8528 is
also described. Id. As Commissioner Cohen reasons, “[s]urely, any
reasonable question of what §57.8528 required was dispelled by the
events of October 20-21.” Id., at 511.

Commissioner
Cohen also examined Newmont’s “Updated Barricade Procedure,” in detail:

The new policy
created three categories of headings - “Active Heading” (headings are presently
in production or development or scheduled for production or development within
four weeks), which only require a rope barrier; “Short Term Inactive Heading”
(headings which are scheduled for production nor development within 4 to 12
weeks, or have been removed from active status due to changes in ground or
ventilation), which require a snow fence barricade or a berm; and “Long Term
Inactive Heading” (headings which are scheduled for production or development
beyond 12 weeks, or where mining activities are complete), which require a
chain link fence. NM Ex. 8. Significantly, while the barricades for Short
Term Inactive and Long Term Inactive Headings are “intended to restrict access
into the area”, the rope barrier for Active Headings is only “intended to
impede access.” Id. Moreover, the signage required for Active
Headings does not clearly restrict access but only says “Heading Inspection
Required.” Id.

The distinction
in the new barricading policy between areas requiring a snow fence, berm or
chain link fence designed to “restrict access,” and areas requiring only a rope
barrier designed to “impede access” is keyed to the length of time until
production or development - i.e., more or less than four weeks. Although
Newmont's new barricading policy explicitly references and quotes §57.8528, it
totally ignores the distinction which triggers the need for a barricade

- whether an area is “unventilated.” Despite the series of §57.8528 citations
and the meeting with MSHA in October, Newmont's new barricading policy simply
does not require a barricade for an unventilated area if the area is scheduled
for production or development within four weeks.

Newmont USA Ltd., 37 FMSHRC at
511-2 (Cohen, Comm'r., concurring in part and dissenting in part).

Commissioner Cohen mentions
that the 1-5301 headings appear to have been left inadequately barricaded even
under Newmont’s own Updated Barricade Procedure. Id., at 512.

In his opinion concurring in
part and dissenting in part, Commissioner Cohen summarized multiple instances
in the record which showed that “it certainly cannot be said that Newmont’s actions
constituted objectively reasonable compliance with §57.8528 or suggested
good faith”: the six violations in October, 2009; McFarland’s “adamant behavior
on October 20,” MSHA’s subsequent meeting to clarify barricading requirements
on October 21; the drafting of a new policy that effectively ignored the
Secretary’s instructions regarding unventilated headings; Newmont’s own failure
to follow its updated barricade policy. Id.

The Commission
applies a mixed subjective/objective analysis in determining the motivations of
parties in taking various actions. For example, in Dolan v. F&E Erection
Co., 22 FMSHRC 171, 175 (Feb. 2000), the Commission held that in
determining the propriety of a work refusal the standard required both a
subjective element of a miner’s honest belief that a hazard exists as well as
the objective requirement that the miner’s belief be reasonable.[6]

As pointed out
by the Commission in its remand decision, and so lucidly explained by
Commissioner Cohen, this Court failed to employ both a subjective and objective
analysis in reviewing the propriety of the mine operator’s decision not to comply
with MSHA directives.

This Court is
reluctant to ascribe bad faith motivations to a party’s actions when other,
less pejorative arguable explanations exist. Thus was reached this Court’s
finding – which Commissioner Cohen understandably labeled “doubtful” – that
Respondent had possessed a good faith belief that it was complying with the
regulations when it roped off headings that were to be worked. Newmont USA, Ltd.,
34 FMSHRC at 164.

The pertinent
question, however, is not the operator’s good faith belief in its compliance
but rather the objective reasonableness of that belief. The great weight of
evidence in this matter, applicable case-law, the Secretary’s persuasive
arguments, and Commissioner Cohen’s valuable insights all support the
conclusion that the Respondent could not have held an objectively reasonable
belief that it was in compliance with §57.8528.[7]

III.            
The
Operator’s Conduct Constituted Unwarrantable Failure

In its remand
order the Commission further directed that this Court make factual findings on
the elements of an unwarrantable failure pursuant to, inter alia, its
holding in Sec. of Labor v. Manalapan Mining Co., 35 FMSHRC 289 (Dec.
1987).

In Manalapan
the Commission reviewed the factors to be evaluated in determining
unwarrantable failure:

In Emery Mining Corp., 9
FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure
is aggravated conduct constituting more than ordinary
negligence. Id. at 2001. Unwarrantable failure is characterized by
such conduct as “reckless disregard,” “intentional misconduct,” “indifference,”
or a “serious lack of reasonable care.” Id. at 2003-04; Rochester
& Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see
also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir.
1995) (approving Commission's unwarrantable failure test).

Whether conduct is “aggravated” in the
context of unwarrantable failure is determined by looking at all the facts and
circumstances of each case to see if any aggravating factors exist, including
(1) the extent of the violative condition, (2) the length of time that the
violative condition existed, (3) whether the violation posed a high degree 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 had been placed on notice
that greater efforts were necessary for compliance. See IO Coal Co.,
31 FMSHRC 1346, 1351-57 (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). These seven factors need to be viewed in the context of the
factual circumstances of a particular case, and some factors may be irrelevant
to a particular factual scenario. Consolidation Coal Co., 22 FMSHRC
340, 353 (Mar. 2000). Nevertheless, all of the relevant facts and circumstances
of each case must be examined to determine if an operator's conduct is
aggravated, or whether mitigating circumstances exist. Id.; IO
Coal, 31 FMSHRC at 1351.

Manalapan
Mining Co., 35
FMSHRC at 293.

Considering the Manalapan
factors seriatim this Court makes the following findings:

1.      The Extent of
the Violative Condition

Given Newmont’s admission that its
procedures required miners to erect rope barriers and “Heading Inspection
Required” signs in areas to be mined within four weeks, even if the ventilation
bags had been tied shut, the scope of the violative condition was extensive.

The Respondent contends that, because
the inspector issued one citation concerning a single area, the violation
cannot have been extensive. Respondent’s Response Brief on Remand, 8. Further,
the Respondent argues that this is confirmed by the inspector’s failure to cite
Newmont’s Standard Operating Procedure (SOP) or other policies. Id.

This final point by the Respondent fails
to persuade. It is unclear to this Court just how Inspector Guardipee would
have cited Newmont for its SOP or company-wide policies when he was standing in
the 1-5301 North and South headings. There is uncontradicted evidence that the
Respondent, as a matter of policy, routinely erected insecure, ineffective barricades
that failed to impede miner access. Newmont also routinely failed to warn
miners about the dangers of noxious air in unventilated headings by neglecting
to post signs to that effect. For these reasons, I find the violation was
extensive.

This factor weighs in favor
of a finding of unwarrantable failure.

2.      The Length of
Time the Violative Conditions Existed

The
record reveals that the ventilation bag was tied off for at least one month. Pet’r’s
Opening Brief on Remand, 16. The Respondent offers no argument or evidence
to the contrary, instead urging this Court to give primary weight to the factor
of dangerousness within this unwarrantable failure analysis. Respondent’s Response
Brief on Remand, 7.

Similar
to circumstances that obtained in Excel Mining, 37 FMSHRC 459 (Mar. 2015), the violative condition here
existed for a period of weeks. There the Commission found that the length of
time the condition had existed, as well as other factors, proved highly
aggravating and inclined toward a finding of unwarrantable failure. Id.
at 468.

The Secretary also cites numerous Commission cases in his brief
supporting an unwarrantable failure designation “where the violative condition
existed for a period of time from longer than one shift to several weeks.” Pet’r’s
Opening Brief on Remand, at 16. Further, the Secretary argues, “violations
have been found to exist over a long period of time where the practice was long
standing.” Pet’r’s Opening Brief on Remand, at 16, citing Lopke
Quarries, Inc., 23 FMSHRC 705, 711 (Jul. 2001); Consolidation Coal,
23 FMSHRC 588, 594 (Jun. 2001); Windsor Coal, 21 FMSHRC 997, 1000 (Sept.
1999); Sierra Rock Prods., 37 FMSHRC 647 (Mar. 2015).

Given the lengthy period of time this condition obtained, this
factor also militates in favor of a finding of unwarrantable failure.

3.      Whether
the Violation Posed a High Degree of Danger

The
Commission in Manalapan reaffirmed that the factor of dangerousness may
be so severe that by itself it warrants a finding of unwarrantable failure. Manalapan
Mining Co., at 294. However in the case sub judice the Commission
specifically found that this Court erred in concluding that the violation at
issue was S&S and held that there “was no substantial evidence to support a
finding that the violation contributed to a discrete hazard reasonably likely
to result in an injury.” Newmont USA Ltd., 37 FMSHRC 499, at 504.

This
Court agrees with the Secretary’s contention, that “although the danger may not
have been ‘reasonably likely,’ this does not mean that unventilated underground
headings are not dangerous.” This contention has some merit, especially
considering, as the Secretary does, that “assuming continued operations, the
air quality would continue to diminish.” Pet’r’s Opening Brief on Remand,
17.

Given
that the Commission’s findings constitute “the law of the case,” this Court is constrained
to conclude that the degree of danger posed by Newmont’s violation was not
high. Eastern Ridge Lime Co., 21 FMSHRC 416 (Apr. 1999) (finding that
decision by appellate court obliged lower court on remand to follow appellate
court’s decision); Manalapan Mining Co., 36 FMSHRC 849 (Apr. 2014)
(finding that judge, on remand, violated law of the case doctrine in FMSHRC
context by reversing an initial, uncontested finding).

Nonetheless,
while this Court cannot find a high degree of danger in this case, Newmont’s
conduct in this instance was unwarrantable. An absence of a high degree of danger
does not suggest safety, and leaving headings unventilated and effectively
unbarricaded gives rise to some measure of added danger beyond the usual ration
of risk offered to a miner. An unventilated heading, left untouched for weeks
on end, would naturally see its air quality diminish, perhaps to the point of
danger for a nearby miner.

This factor weighs in favor of a finding of unwarrantable failure.

4.      Whether the
Violation Was Obvious

The condition was also obvious. A rope with an attached sign is
obviously not a barricade of snow fence or chain link. More fundamentally, a
rope or chain with an attached sign will not deter a miner from entering an
unventilated heading as effectively as snow fence or chain link barriers would.
As discussed infra and supra, Newmont could not have had a good
faith, objectively reasonable belief that a rope with an attached sign
constituted a barricade. Therefore, the violation was obvious.

This factor also weighs in favor of a finding of unwarrantable
failure.

5.      The Operator’s
Knowledge of the Existence of the Violation

Newmont
admitted knowledge of the violation when it promulgated its “Updated Barricade
Procedure” of November 2009. RX-9, see also Commissioner Cohen’s
analysis supra. By consciously employing the word "barrier"
instead of "barricade," Newmont appeared to both accept the letter of
Secretary's interpretation of “barricade” yet still defy the spirit of §57.8528
by ignoring the Secretary’s instructions regarding unventilated headings. RX-9.
Further, by describing headings that had not seen a working miner in two to
four weeks as "active," Newmont tried to write into its “Updated
Barricade Procedure” ambiguity to leave headings effectively unbarricaded and
unsafe for up to weeks at a time. RX-9. To argue, as Respondent does, that the
printing and promulgating of this “Updated Barricade Procedure” is indicative
of good faith is gainsaid by this risible "barrier" and
"barricade" distinction. 

This
factor further weighs in favor of a finding of unwarrantable failure.

6.      The Operator’s
Efforts in Abating the Violative Condition

The
Operator made no effort to abate the violative condition before Inspector
Guardipee issued Order No. 6482838. “The focus on the operator’s abatement
efforts is on those efforts made prior to the citation or order.” IO Coal,
31 FMSHRC at 1356. Given the October 2009 inspection should have made clear
that Newmont’s previous barricading practices were unacceptable, it is problematic
why the operator did not do more to abate the violation condition.

In
not erecting a snow fence, the Respondent did not contend that it has no snow
fence. Indeed the record reveals there was snow fence on site. Tr. 271-2. The
Respondent does not contend that it would be onerous to erect these barricades;
the time to construct one is less than half an hour. Tr. 251. Removing a snow
fence barricade takes only a few minutes. Id. The risk contemplated of a
miner entering an unventilated heading without proper equipment plainly
outweighs the burdens on the Respondent in guarding against this risk. As I
noted in my initial decision in this matter, “a time intrusion of less than
forty minutes does not seem like such a substantial burden as to outweigh the
life or safety of a miner.” Newmont USA, Ltd., 34 FMSHRC 146, at 163.

The
Respondent’s violative conduct and failure to abate such again appear to have
been driven not so much by a good faith and reasonable interpretation of §57.8528’s
requirements -- but rather a “contest of wills” between MSHA and the Respondent
which itself appears to have been based upon the Respondent’s unwarranted
concerns regarding the minimal delays in time and production entailed in
following MSHA barricading directives. Such a failure to abate would constitute
aggravated conduct supporting a finding of unwarrantable failure. 

7.      Whether the
Operator Had Been Placed on Notice That Greater Efforts Were Necessary for
Compliance

In
analyzing this factor, I have already cited the numerous instances, as
summarized by Commissioner Cohen, supra, where the Respondent had actual
or constructive notice from MSHA that its barricading practices violated §57.8528.
See supra. Even subtracting from consideration the Elko, NV meeting with
MSHA officials, Newmont had at least two more warnings regarding its inadequate
barricading policy. There was the series of citations issued in October of
2009, most of which concerned inadequate barricading. Sx. W. As the Secretary
notes in his brief, “[p]rior similar violations put an operator on notice that
greater efforts are necessary for compliance with the standard.” Pet’r’s
Opening Brief on Remand, at 11, citing Manalapan Mining Co., 35
FMSHRC 289, 295-6 (2013).

Further, there was the October 20, 2009 confrontation with Mr.
Stull, during which Mr. McFarland expressed unequivocally his desire to
disregard or circumvent MSHA barricading instructions. Tr. 145-6. At that
meeting, Stull explicitly warned Mr. McFarland that MSHA would continue to
issue citations so long as Newmont refused to comply with MSHA instructions.
Tr. 146.

This Court must find that a warning from an MSHA inspector that
failure to follow that inspector’s instructions will lead to further citations
is evidence that Newmont was placed on notice that greater efforts were
necessary for compliance.

Finally, Jim Fitch, Mr. Stull’s supervisor, made the trip to the
Midas Mine the day after Stull and McFarland’s contentious tête-à-tête, on
October 21, 2009, and explained to McFarland and others in a meeting lasting an
hour what MSHA would accept as proper barricading under §57.8528. Tr. 155-7. Certainly
this meeting itself constituted notice, if the October 20, 2009 confrontation
somehow did not.

Conclusion

Considering
the above Manalapan factors, both individually and in toto, in
the context of the particular facts of the case sub judice and further
considering that Respondent could not have held an objectively reasonable
belief that its actions were in compliance with §57.8528, this Court finds that
the Respondent’s conduct clearly constituted unwarrantable failure.

IV.            
Penalty

Section 110(i)
of the Mine Act establishes the six criteria to be considered in determining
the appropriateness of a civil penalty.

Further, the Commission has
outlined its authority for assessing civil penalties in Douglas R. Rushford
Trucking, stating that “the principles governing the Commission’s authority
to assess civil penalties de novo for violations of the Mine Act are
well established.” 22 FMSHRC 598, 600 (May 2000). While the Secretary’s system
for points in Part 100 of 30 C.F.R. provides a recommended penalty, the
ultimate assessment of the penalty is solely within the purview of the
Commission. Id. Thus, a Commission judge is not bound by the penalty
recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723
(Aug. 2008). The de novo assessment of civil penalties does not require
each of the penalty assessment criteria to be given equal weight. Thunder
Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).[8]

In this case,
the special assessment for Order No. 6482848 was $35,500. I have considered each of the special penalty
factors below:

1.     
The operator’s history of previous violations. In the 130 inspection days prior to the issuance of Order No.
6482848, the Respondent was issued 118 citations. Six citations or orders in a
previous inspection were violations of 30 C.F.R. §57.8528. Pet'r’s Opening Brief on Remand, 20.

2.     
The size of the operator’s business. The Respondent operates a medium mine, “Midas.” Newmont
employs roughly 160 employees. Pet'r’s Opening Brief on Remand, 20.

3.     
Whether the operator was negligent. In its previous decision, the Court did not make a finding
as to the level of negligence. As this decision finds the operator’s conduct
one of unwarrantable failure, the operator was plainly negligent.

4.     
The effect on the operator’s ability to
continue in business. The Petitioner and
Respondent both acknowledge that Newmont’s ability to continue in business will
not be imperiled by the payment of the penalties in this case. JS-8. As such, I
presume there would be no such effect. Sellersburg Stone Co. v. FMSHRC,
735 F.2d 1147, 1153 n. 14 (7th Cir. 1984).

5.     
The gravity of the violation. The gravity of the potential harm in this order having been
found less than likely by the Commission in its remand order, the Secretary
nevertheless argues that the gravity of a violation and its S&S nature are
not the same. Pet’r’s Opening Brief on Remand, 20. This may be true, but
a finding of S&S is surely indicative of a grave violation, whereas a
finding that a violation was not S&S, then, suggests less seriousness in
terms of gravity. Despite the fact that the Respondent’s conduct constituted
unwarrantable failure, the mixed record concerning the Midas Mine’s
non-gassiness, as well as the Commission’s finding that the violation was not
S&S and unlikely to cause harm to a miner, leads me to conclude the gravity
of this violation is not an aggravating factor.

6.     
The demonstrated good faith of the Respondent
in abating the violation. The Respondent’s
good faith is not disputed by the Secretary. JS-7.

In
recognition of both Newmont’s unwarrantable failure to maintain adequate
barricades in unventilated headings, as well as the Commission’s findings on
remand, I conclude that a penalty of $20,000.00 is appropriate. The lack of an
appreciable injury, as well as the Commission’s finding that the violation was
not likely to cause harm, suggest a penalty reduction is warranted from the
Secretary’s proposed amount of $35,500.00 to $20,000.00. Sellersburg Stone
Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir.
1984).

ORDER

It
is hereby ORDERED that Respondent PAY the Secretary of Labor the
sum of $20,000.00 within 30 days of this Decision.[9] Upon
receipt of payment, this case is hereby DISMISSED.

/s/ John Kent Lewis

John Kent Lewis

Administrative
Law Judge

Distribution:

Laura
C. Bremer, Esq., U.S. Department of Labor, Office of the Solicitor, 90 7th
Street, Suite 3-700, San Francisco, CA 94103

Laura
E. Beverage, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite
2150, Denver, CO 80202

Hiliary
N. Wilson, Esq., Newmont Mining Corporation, 1655 Mountain City Highway, Elko,
NV 89801

[1] This decision
is available at 34 FMSHRC 146 (Jan. 2012). The decision incorrectly states the
date of issuance as January 5, 2011.

[2] Section
57.8528, in pertinent part, provides that unventilated areas shall be sealed,
or barricaded and posted against entry.

[3] The original
assessed penalty amount in the January 5, 2012 decision was incorrectly stated as
$35,000.

[4] Neither
Chairperson Jordan nor Commissioner Young participated in this decision.

[5] In reviewing
Commissioner Cohen’s thoughtful opinion, the undersigned is reminded of William
O. Douglas’s observation that “the right to dissent is the only thing that
makes life tolerable for a judge of an appellate court.” William O. Douglas, Aᴍᴇʀɪᴄᴀ
Cʜᴀʟʟᴇɴɢᴇᴅ, at 4 (1960).

[6] See also
Robinette v. United Castle Coal, 3 FMSHRC 803 (Apr. 1981) wherein the
Commission held that a miner’s honest perception of a potentially hazardous
condition must be one made in good faith and be reasonable under the
total circumstances.

[7] As will be
discussed infra, this Court recognizes that if a mine operator
reasonably, but erroneously, believes in good faith that his cited conduct is
the safest method of compliance with applicable regulations, his actions
will not constitute aggravated conduct that exceeds ordinary negligence. Black
Beauty Coal Co. v. FMSHRC, 703 F.3d 553 (2012). But in the instant matter,
if the danger to be avoided was the exposure of miners to noxious air or lack
of oxygen in unventilated headings – clearly the safest method of
compliance was the more substantive barricading procedures directed by MSHA so
as to prevent access to unventilated areas.

[8]
As Judge
Moran observed in Oak Grove Resources, LLC, “S&S is not among the
identified statutory penalty criteria.” Oak Grove Resources, LLC, SE
2009-261-R, at 16, see also 30 U.S.C. §820(i). This
Court analyzes the penalty criteria absent consideration of the now-deleted
S&S finding, but aware that the operator’s conduct constitutes an
unwarrantable failure.

[9] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 63179-0390.