Wyoming Fuel Company n/k/a Basin Resources, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Basin Resources changed the ventilation system at the Golden Eagle Mine without obtaining MSHA's prior approval. The Commission affirmed that the change violated the mine's approved ventilation plan, but remanded whether the violation was significant and substantial because the judge had not resolved whether the change caused the later methane accumulations. The Commission also affirmed that the violation was not caused by unwarrantable failure and that General Manager Earl White was not personally liable. It reversed the finding that the methane accumulation itself violated the ventilation plan. The decision leaves the ventilation violation in place, sends the S&S issue back for further analysis, and removes the separate methane violation.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.316, with related Mine Act provisions including 30 U.S.C. §§ 814(d)(2), 817(a), 820(c), and 863(o)
• Outcome: The ventilation-plan violation was affirmed in result, the S&S issue was remanded, the unwarrantable-failure and personal-liability findings were affirmed, and the methane-accumulation violation was reversed.
• Key point: A Commission review decision can preserve the underlying violation while requiring new findings on the seriousness of the violation and rejecting a separate related violation.

Full text (FMSHRC public release)

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

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. WEST 92-340
: WEST 92-384
WYOMING FUEL COMPANY, :
n/k/a BASIN RESOURCES, INC. :
:
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 93-186
:
EARL WHITE, employed by :
WYOMING FUEL COMPANY, n/k/a :
BASIN RESOURCES, INC. :

BEFORE: Jordan, Chairman; Backley, Doyle and Holen, Commissioners

                               DECISION

BY: Backley, Commissioner

 This consolidated civil penalty proceeding arises under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine
Act" or "Act"). The Secretary of Labor has charged Basin Resources,
Inc. ("Basin") with two violations of 30 C.F.R. § 75.316
ÄÄÄÄÄÄÄÄÄ
FOOTNOTE 1
Commissioner Backley is the only Commissioner in the majority on all
issues presented.

~1619
(1991). Administrative Law Judge John J. Morris concluded that Basin
violated its ventilation plan and, thus, section 75.316 by: (1) making
an unauthorized, major change in its ventilation system and (2)
permitting excessive levels of methane to accumulate. 15 FMSHRC 1968,
1969-74, 1978-80 (September 1993)(ALJ). The judge also determined that
the violation involving the change to the ventilation plan was
significant and substantial ("S&S") but was not the result of Basin's
unwarrantable failure to comply with the standard, and that the mine's
General Manager, Earl White, had not "knowingly authorized, ordered, or
carried out" the violation within the meaning of section 110(c) of the
Mine Act, 30 U.S.C. § 820(c). Id. at 1974-78, 1981-82. He determined
that the methane violation was neither S&S nor the result of
unwarrantable failure. Id. at 1980.

  For the reasons that follow, the Commission affirms in result the

judge's conclusion that Basin violated its ventilation plan by changing
its ventilation system; remands the issue of whether that violation was
S&S; affirms the judge's determinations that this violation was not the
result of unwarrantable failure and that White was not personally liable
for the violation under section 110(c); and reverses the judge's
determination that the methane accumulation violated Basin's ventilation
plan.
ÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 2
30 C.F.R. § 75.316 provided:

     A ventilation system and methane and dust control plan
and revisions thereof suitable to the conditions and the mining
system of the coal mine and approved by the Secretary shall be
adopted by the operator and set out in printed form on or before
June 28, 1970. The plan shall show the type and location of
mechanical ventilation equipment installed and operated in the
mine, such additional or improved equipment as the Secretary
may require, the quantity and velocity of air reaching each
working face, and such other information as the Secretary may
require. Such plan shall be reviewed by the operator and the
Secretary at least every 6 months.

   On November 16, 1992, 30 C.F.R. § 75.316 was superseded by 30 C.F.R.

75.370, which imposes similar requirements

FOOTNOTE 3
With respect to the ventilation change, all Commissioners affirm in
result the judge's finding of violation. With respect to whether that
violation arose from the operator's unwarrantable failure, Commissioners
Backley, Doyle and Holen vote to affirm the judge's determination that
it did not. Commissioners Backley, Doyle and Holen also affirm the
judge's determination that White was not personally liable for the
violation under section 110(c). Chairman Jordan dissents on the
unwarrantable failure and section 110(c) issues. As to whether the
ventilation change violation was S&S, all Commissioners vote to remand
the issue. Chairman Jordan and Commissioner Backley do not reach the
issue of whether a final uncontested imminent danger order can be used
to establish that a violation is S&S. Commissioner Doyle and
Commissioner Holen would reverse the judge's determination on that
issue. In Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65 (August

1990), aff'd on other grounds, 969 F.2d 1501 (3d Cir. 1992), the
Commission determined that the effect of an evenly split vote, in which
at least two Commissioners would affirm a judge's decision, is to leave
the decision standing as if affirmed. No Commissioner votes to affirm
the judge's S&S determination. As a corollary to those principles, the
vote of Chairman Jordan and Commissioner Backley, closest in effect to
the judge's decision, is the Commission's disposition. All
Commissioners reverse the judge's finding of violation based on the
methane accumulations. Commissioners' separate opinions follow the
decision.

~1620
I.

               Factual and Procedural Background

 On June 1, 1991, the Golden Eagle Mine, an underground coal mine in

Weston, Colorado was purchased from Wyoming Fuel Company ("Wyoming
Fuel") by Entech, Inc., the parent company of Basin. During that month,
the Northwest No. 1 section, where longwall mining was being conducted,
experienced methane liberation problems. In order to deal with the
situation, General Manager Earl White decided on Sunday, June 23, to
make a major change in the air flow. Basin changed return entry No. 3
on the longwall's headgate side to an intake entry and converted intake
entries Nos. 2 and 3 on the tailgate side to return entries.

 The next morning, White telephoned Inspector Donald Jordan of the

Department of Labor's Mine Safety and Health Administration ("MSHA") and
informed him of the change. The following morning, June 25, MSHA
Inspectors Jordan and Roland Phelps visited the mine, reviewed the
mine's ventilation plan, and confirmed that the plan's specified air
flow in the longwall section had been changed. Inspector Jordan issued
withdrawal order No. 3244406, pursuant to section 104(d)(2) of the Act,
30 U.S.C. § 814(d)(2), alleging that, by reversing the air flow, Basin
was out of compliance with its ventilation plan, and that the violation
was S&S and the result of unwarrantable failure. The Secretary
subsequently filed
ÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 4
Order No. 3244406 states:

 The methane, ventilation and dust control plan, approved April 16, 1991

was not in compliance in the North West #1 Long Wall, MMU 009-0 in that
page 3 of this addendum shows #3 headgate entry as a return air course.
The air was redirected on 6-23-91 in this entry and it is now an intake
and in turn the air is coursed through #1 and #2 bleeder entries toward
the new proposed exhaust shaft. At the shaft, the air is coursed to #58
crosscut of the tailgate return.

~1621
a civil penalty petition against White, pursuant to section 110(c) of
the Act, alleging that White had knowingly authorized the violation.

 Later in the day on June 25, Inspectors Jordan and Phelps inspected the

Northwest No. 1 section. Using handheld methane detectors, they
measured methane concentrations of 4% to 5% and higher in the tailgate
area, four feet outby the Kennedy stoppings at crosscuts 62 and 63,
between the No. 3 and 4 tailgate entries. 15 FMSHRC at 1978; Tr. 35,
121-22. They also took two bottle samples of the air, which, upon
testing, showed explosive concen- trations of methane at 6.8% and 9.4%.
Tr. 36-37, 123.

 Based on these methane levels, the inspectors issued an imminent danger

order to Basin pursuant to section 107(a) of the Act, 30 U.S.C.
817(a). They also cited Basin under section 104(a) of the Act, 30
U.S.C. 814(a), alleging, as later modified, that the methane
concentration was an S&S violation of the ventilation plan and section
75.316. On June 28, 1991, MSHA approved, with some modifications,
Basin's ventilation changes. Gov't Ex. M-2; Tr. 165-66, 240-41, 405.

 Following an evidentiary hearing, the judge concluded that, by altering

the air flow required by its plan without having obtained MSHA's prior
approval, Basin had failed to comply with its ventilation plan, thereby
violating section 75.316.15 FMSHRC 1970-74. The judge based his
determination on a provision requiring prior approval set forth in an
MSHA cover letter, which he found was part of the ventilation plan.
Id. at 1971-74. He concluded that the violation was S&S, finding that a
reasonable likelihood of injury had been established by the uncontested
imminent danger order. Id. at 1976. He further found that the
violation had not resulted from Basin's unwarrantable failure because
White had a good
ÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 5
Citation No. 3244408 states:

 Methane in excess of 4.0% and 5.0% was present outby the Kennedy

stoppings in xcut #62 and #63 between #3 and #4 entries in the #3 side
of the NW LW Tailgate area. Also oxygen in amounts of 17.1% was
measured with hand held detectors at least 4 ft. outby the stopping in

62 crosscut. Both samples were collected to substantiate this citation

and order. This was the main contributing factor to the issuance of
imminent danger order #3244407....

The citation was modified on June 27, 1991, by citation No. 3244408-01:

 Citation no. 3244408 issued 06/25/91 is hereby modified to add in part 8

that this is a violation of the methane and ventilation and dust control
plan as approved on page 37, November 15, 1990, and to change part 9.C
from a violation of 75.329 to 75.316.

~1622
faith, although mistaken, belief that his actions complied with the
Secretary's regulations. Id. at 1976-78. The judge concluded that
White was not personally liable under section 110(c) for this violation
because his conduct was not "aggravated." Id. at 1981. With regard to
the cited methane concentrations, the judge determined that the high
methane levels violated the plan and, thus, section 75.316. Id. at
1978-80. He concluded, however, that this methane violation was not S&S
or the result of Basin's unwarrantable failure. Id. He assessed a
penalty of $300 for the first violation and $400 for the second
violation. Id. at 1982.

 The Commission granted the parties' cross-petitions for discretionary

review and heard oral argument. The Secretary's petition sought review
of the judge's holdings that the ventilation change was not the result
of unwarrantable failure, that White was not liable under section
110(c), and that the methane accumulation was not S&S or the result of
unwarrantable failure. Basin's petition sought review of the judge's
determinations that the ventilation change and the methane accumulations
were violations and that the ventilation change violation was S&S.

                                 II.

                             Disposition

   A.    Change in Ventilation

             1.   Validity of section 104(d)(2) order

 As a threshold matter, Basin argues in its brief on review that the

section 104(d)(2) order alleging a violation based on the change in the
ventilation plan was procedurally defective. Basin argues that, because
the underlying section 104(d)(1) order was issued not to Basin but to
its predecessor, Wyoming Fuel, there was no "predicate" order in place
and, thus, a section 104(d)(2) order could not properly be issued. The
order citing the ventilation plan
ÄÄÄÄÄÄÄÄÄ
FOOTNOTE 6

 All Commissioners affirm in result the judge's conclusion that Basin

violated section 75.316 by failing to comply with the air flow
requirements of its ventilation plan.

FOOTNOTE 7

 If an inspector finds a violation that is S&S and results from an

unwarrantable failure by the operator to comply, a citation noting those
findings is issued. This citation is commonly referred to as a "section
104(d)(1) citation" (30 U.S.C. § 814(d)(1)). Greenwich Collieries, Div.
of Pa. Mines Corp., 12 FMSHRC 940, 945 (May 1990), citing Nacco Mining
Co., 9 FMSHRC 1541, 1545 n.6 (September 1987). If, during the same
inspection or a subsequent inspection within 90 days of such citation,
another violation resulting from unwarrantable failure is found, a
withdrawal order is issued under section 104(d)(1) of the Act. This is
a "predicate" order. If subsequent inspections of the mine reveal
additional unwarrantable failure violations, withdrawal orders are
issued under section 104(d)(2) of the Act until such time as an

inspection of the mine discloses no further unwarrantable failure
violations. Greenwich Collieries, 12 FMSHRC at 945.

~1623
violation reflects that MSHA issued the predicate section 104(d)(1)
order to Wyoming Fuel on March 21, 1991. Basin raised this issue below,
but the judge did not rule on it.

 Basin did not raise this issue in its petition for discretionary review,

nor did the Commission direct its review sua sponte. Under the Mine Act
and the Commission's procedural rules, review is limited to the
questions raised in the petition and by the Commission sua sponte. 30
U.S.C. 823(d)(2)(A)(iii) and (B); 29 C.F.R. 2700.70(f) (1993).
Therefore, Basin's procedural challenge is not properly before the
Commission.

           2.   Violation

 Under section 75.316, which repeated the language in section 303(o) of

the Mine Act, 30 U.S.C. § 863(o), an operator was required to adopt and
operate under "a ventilation system and methane and dust control plan
and revisions thereof" that have been approved by the Secretary. The
judge determined that Basin violated section 75.316 because it failed to
obtain MSHA's prior approval before changing the air flow. 15 FMSHRC at
1970-74. He found that a prior approval requirement was contained in an
MSHA cover letter attached to the mine's ventilation plan, adopted by
Basin from Wyoming Fuel. Id. at 1974. Basin argues that it had no
notice that MSHA's prior approval was necessary and that it was not
aware of the cover letter. B. Br. 15-18. The Secretary responds that
the cover letter was an effective part of the plan. S. Reply Br. 8-12.
ÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 8

Section 104(d)(2) provides:

     If a withdrawal order with respect to any area in a coal
or other mine has been issued pursuant to paragraph (1), a
withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar to
those that resulted in the issuance of the withdrawal order
under paragraph (1) until such time as an inspection of
such mine discloses no similar violations. Following an
inspection of such mine which discloses no similar violations,
the provisions of paragraph (1) shall again be applicable to
that mine.

30 U.S.C. § 814(d)(2)(emphasis added).

 We note that the plain language of section 104(d)(2) addresses repeated

violations at a mine, regardless of ownership. Section 104(d)(2) lifts
the probationary chain only when the mine passes an inspection without
an unwarrantable failure violation. Moreover, even if the section
104(d)(2) order were modified, the allegations of violation would
survive. See Consolidation Coal Co., 4 FMSHRC 1791, 1794-98 (October
1982). The judge's failure to rule on Basin's argument was harmless
error.

~1624
We conclude that the cover letter, upon which the judge relied, merely
reiterated to the operator that, under section 75.316, a ventilation
plan and revisions thereof must first be approved by MSHA. For the
reasons set forth below, we reject as unreasonable the assertion of
counsel for the Secretary at oral argument that, absent the cover
letter, Basin's ventilation change would not have required prior
approval. Oral Arg. Tr. 27-30.

 Once a ventilation plan is approved and adopted, its provisions and

revisions are enforceable as mandatory standards. UMWA v. Dole, 870
F.2d 662, 671 (D.C. Cir. 1989); Zeigler Coal Co. v. Kleppe, 536 F.2d
398, 409 (D.C. Cir. 1976); Freeman United Coal Mining Co., 11 FMSHRC
161, 164 (February 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907
(May 1987). Basin's ventilation plan required use of the No. 3 headgate
entry as a return entry and tailgate entries No. 2 and 3 as intake
entries. Gov't Ex. M-1 (ventilation diagram labeled p. 3). There is
no dispute that, on June 23, Basin converted the No. 3 headgate entry to
an intake entry and the two tailgate entries to return entries. It is
also undisputed that Basin did not secure MSHA's prior approval. This
unilateral, major change in the ventilation system constituted a failure
to comply with the approved plan and violated section 75.316. We note
the regulatory history of current section 75.370, the successor to
section 75.316. The preamble to section 75.370 states that MSHA's
"existing practice" under section 75.316 required prior approval of
proposed major revisions. 57 Fed. Reg. 20868, 20899 (May 15, 1992).
Both the Mine Act and the Secretary's regulations recognize the
potential dangers attendant upon major ventilation changes by setting
forth procedures for implementation of such changes. 30 U.S.C. § 863(u);
30 C.F.R. § 75.322 (1991), superseded by 30 C.F.R. § 75.324 (1992).

 The Commission rejects, as did the judge, Basin's assertion that 30

C.F.R. 75.308 and 75.309(a) (1991) undercut any requirement of prior
approval because those regulations authorized ventilation "changes or
adjustments" when methane reached 1% in face areas and return
aircourses. 15 FMSHRC at 1974. The "changes or adjustments" in those
sections referred only to "increasing the quantity of air ... or
improving the distribution of air." 30 C.F.R. § 75.308-1, 75.309-3
(1991). As noted, White's air reversal was a major ventilation change.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 9

 We note further that the Secretary was unable to produce the cover

letter during discovery and did not do so until the hearing. 15 FMSHRC
at 1973; Tr. 362-64.

FOOTNOTE 10

 In 1992, sections 75.308 and 75.309(a) were superseded by 30 C.F.R.

75.323(b)(ii), 75.323(c), and 75.323(d)(2)(i), which impose similar
requirements.

FOOTNOTE 11

 Similarly, we reject Basin's suggestion, made at oral argument, that the

ventilation change was authorized by a plan provision that mirrored 30
C.F.R. 75.308 (1991). Gov't Ex. M- 1, p. 17; Oral Arg. Tr. 9-13.

~1625
For the foregoing reasons, the Commission concludes that Basin did not
comply with its plan when it unilaterally changed the air flow and,
accordingly, that Basin violated section 75.316. The Commission affirms
in result the judge's finding of violation.

           3.     S&S

 The S&S terminology is taken from section 104(d) of the Mine Act, 30

U.S.C. 814(d), and refers to more serious violations. A violation is
S&S if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to by the
violation will result in an injury or illness of a reasonably serious
nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825-26
(April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission further explained:

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

Id. at 3-4; see also Austin Power, Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria). An evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining
operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).

 The major dispute on review is the third Mathies element, a reasonable

likelihood of resulting injury. The judge, focusing solely on the
somewhat speculative terms used by the inspectors, found that the
Secretary had failed to establish that element. 15 FMSHRC at 1975-76.
The judge determined, however, that the uncontested imminent danger
order established a reasonable likelihood that the hazard contributed to
would result in an injury. Id. The judge's conclusion regarding the
preclusive effect of the uncontested imminent danger order fails to
provide any analysis nor does it direct us to any relevant legal
authority.

 Basin asserts, also without providing us with any relevant legal

authority, that, as a matter of law, an uncontested imminent danger
order cannot provide a basis for sustaining an
ÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 12

 All Commissioners vote to remand the judge's S&S determination.

Chairman Jordan and Commissioner Backley do not reach the judge's
determination that a final uncontested imminent danger order established
the facts alleged in that order. Commissioners Doyle and Holen vote to
reverse that holding. Accordingly, this section of the decision
reflects the rationale of Chairman Jordan and Commissioner Backley. See
n.3, supra.

~1626
S&S designation. Basin argues further that if allegations in an
uncontested imminent danger order are held to establish the S&S element
of a related citation as a matter of law, "operators would be forced to
litigate imminent danger orders merely to preserve the opportunity to
litigate a 'significant and substantial' allegation in a related
citation." B. Reply Br. 5. Finally, Basin asserts that, in any event,
by the time the imminent danger order was issued on June 25, Basin had
returned to use of the plan's approved ventilation scheme so that the
conditions referenced in the order could not have been linked to the
earlier air reversal.

 The Secretary relies, without discussion or reference to relevant

citations, on the judge's conclusion that the imminent danger order
established the third step of the Mathies test. The Secretary fails to
address the policy issue raised by Basin concerning needless litigation,
and limits his S&S argument to contending that the weight of the
evidence demonstrates that Basin had not changed the air back when the
high methane concentrations were found and that, accordingly, the
concentrations stemmed from the impermissible change to the ventilation.

 The Commission need not resolve in this case whether, as a general rule,

an uncontested imminent danger order may be used to establish a
reasonable likelihood of injury in a related citation. Cf. generally
Ranger Fuel Corp., 12 FMSHRC 363, 370-73 (March 1990). Here, regardless
of the fact that the inspectors issued the order, the record evidence
supports a finding that a dangerous condition reasonably likely to lead
to injury existed on the afternoon of June 25. It is uncontroverted
that explosive levels of methane were detected at that time in an area
containing several ignition sources. Tr. 123-24. Moreover, the Golden
Eagle Mine is a highly gassy mine liberating over 1,000,000 cubic feet
of methane during a 24-hour period and is subject to five-day spot
inspection pursuant to section 103(i) of the Mine Act, 30 U.S.C.
813(i). Tr. 25. In addition, the mine had experienced a very serious
methane explosion only five months prior to the air reversal. See 15
FMSHRC at 1978; Tr. 38-39. The judge, relying solely on the imminent
danger order for his S&S findings, overlooked all of this evidence.
Accordingly, we vacate the judge's finding that the Secretary failed to
offer evidence establishing the reasonable likelihood of injury.

 Under Mathies, the Secretary must show that the hazardous condition is

caused by the violation of the cited safety standard in order to make
out the special finding of S&S. Here the hazardous condition involved
methane accumulations. The cited violation concerned the operator's
failure to comply with the approved ventilation plan. The unanswered
question is whether the deviation from the ventilation plan caused the
methane accumulations. The judge's decision fails to address the causal
link required under Mathies.

 The record evidence linking the methane levels to the air flow change is

controverted. The inspectors testified that the explosive levels of
methane that they detected resulted from Basin's air reversal and
reflected the serious hazards associated with the reversal. Tr. 35-36,
54, 123-24. Inspector Jordan testified that when he measured the
methane levels on June 25, the intake and return entries were still
functioning in the altered form that General Manager White had
implemented. Tr. 374-76. Jordan's contemporaneous notes support his

testimony.

~1627
Id. Jordan's testimony was further supported by former mine foreman
David Huey, who testified that White's ventilation changes remained in
effect until later in the week. Tr. 86- 87. White, on the other hand,
maintained that, on June 25, before Inspector Jordan took the methane
measurements, Huey and another manager had already returned the intake
and return entries to the pre-June 23 configuration. Tr. 211-15.

 The Commission is bound by the terms of the Mine Act to apply the

substantial evidence test when reviewing an administrative law judge's
factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). That standard
of review requires that a fact finder weigh all probative record
evidence and that a reviewing body examine the fact finder's rationale
in arriving at his decision. Mid-Continent Resources, Inc., 16 FMSHRC
1218, 1222 (June 1994), citing Universal Camera Corp. v. NLRB, 340 U.S.
474, 487-89 (1951). A judge must analyze and weigh the relevant
testimony, make appropriate findings, and explain the reasons for his
decision. Mid-Continent, 16 FMSHRC at 1222, citing Anaconda Co., 3
FMSHRC 299, 299-300 (February 1981).

 The judge failed to analyze any of the evidence concerning whether the

methane accumulations were, in fact, caused by the air reversal. Nor
did he make a finding concerning this issue of causality. Accordingly,
we vacate the judge's conclusion that the violation was S&S, and remand
for further analysis consistent with this decision.

           4.   Unwarrantable Failure

The unwarrantable failure terminology is taken from section 104(d) of
the Act and refers to more serious conduct by an operator in connection
with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (December 1987),
the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. This
determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected or appropriate action"), and
"negligence" (the failure to use such care as a reasonably prudent and
careful person would use, characterized by "inadvertence,"
"thoughtlessness," and "inattention"). Id. Unwarrantable failure is
characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference" or a "serious lack of reasonable care." Id.
at at 2003-04; Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189, 193-94
(February 1991). This determination was also based on the purpose of
the unwarrantable failure sanctions in the Mine Act, the Act's
legislative history, and judicial precedent. Emery, 9 FMSHRC at
2002-03.
ÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 13

 Commissioners Backley, Doyle and Holen vote to affirm the judge's

finding that this violation did not result from Basin's unwarrantable
failure to comply with the standard. Chairman Jordan votes to vacate
and remand. This section of the decision is based on the rationale of
Commissioners Backley, Doyle and Holen.

~1628
In analyzing whether the violation arose from Basin's unwarrantable
failure, the judge examined General Manager Earl White's conduct because
it was White who decided to make the ventilation change. The judge
found that White believed that section 75.316 did not require MSHA's
prior approval of the change. 15 FMSHRC at 1976-78. The judge reasoned
that "there cannot be an unwarrantable failure resulting from a good
faith, although mistaken belief that [an operator's] actions were in
compliance with regulations." Id. at 1977 (citations omitted). The
judge is correct that, under Commission caselaw, unwarrantable failure
does not result from good faith, although mistaken, belief that an
operator was complying with regulations. Florence Mining Co., 11 FMSHRC
747, 754 (May 1989).

 The Secretary argues that White, as mine manager, should have known that

prior approval was required and that, according to Commission cases,
Basin's conduct was unwarrantable. S. Br. 8-11 & n.7. Citing Virginia
Crews Coal Co., 15 FMSHRC 2103 (October 1993), Basin asserts that this
is insufficient to establish unwarrantable failure. B. Br. 24. Basin
is correct that, according to Commission precedent, a "should have
known" standard is not determinative of unwarrantable failure. Virginia
Crews, 15 FMSHRC at 2107. "Use of a 'knew or should have known' test by
itself would make unwarrantable failure indistinguishable from ordinary
negligence." Id. Here, as in Virginia Crews, we reject such an
interpretation of the Commission's decision in Emery. Id.

 The Secretary objects to the judge's finding on the grounds that he

should have determined not only that White had a good faith belief but
whether, under the totality of the circumstances, that belief was
reasonable. The Secretary further contends that the weight of evidence
demonstrates that White's belief was not reasonable. In response, Basin
asserts that substantial evidence supports the judge's determination.

 The Secretary is correct that the operator's good faith belief must be

reasonable under the circumstances. Cyprus Plateau Mining Corp., No.
WEST 92-371-R, 16 FMSHRC ___, slip. op. at 6 (August 26, 1994); see
Southern Ohio Coal Co., 13 FMSHRC 912, 919 (June 1991), citing Utah
Power & Light Co., 12 FMSHRC 965, 972 (May 1990), aff'd, 951 F.2d 292
(10th Cir. 1991). Moreover, the Commission has used a similar approach
in work refusal cases under section 105(c) of the Mine Act, 30 U.S.C.
815(c). A miner's work refusal constitutes protected activity when he
has a good faith belief that the work involves a hazard and that belief
is also reasonable. See Paula Price v. Monterey Coal Co., 12 FMSHRC
1505, 1515 (August 1990).

 It is undisputed that, in directing the ventilation change, White was

attempting to improve the mine's ventilation. In June 1991, the
Northwest No. 1 longwall section was experiencing serious methane
liberation problems. Following a number of unsuccessful adjustments
(Tr. 219-21, 306-07), White decided to make the reversal in order to
deliver more intake air to that section. Tr. 396. The judge found that
White reasonably believed that "he could have been cited for failing to
correct the problems in the ventilation system." 15 FMSHRC at 1977.

~1629
The Secretary's evidentiary objections to the judge's findings are
unpersuasive. The Secretary argues that two of White's subordinates
informed him that MSHA should be notified before making the contemplated
changes. The judge found that White responded by consulting 30 C.F.R.
Part 75 and, in particular, section 75.316, but found no requirement for
such prior approval. 15 FMSHRC at 1977. Section 75.370(c), which
superseded section 75.316, now explicitly requires that major changes to
the ventilation system "shall be submitted to and approved by the
district manager before implementation." The earlier standard, in
effect at the time, did not contain this express requirement. Moreover,
Inspector William Denning conceded that, under the regulations in place
in June 1991, there was no guidance for mine operators as to the type of
changes that could or could not be made without prior approval. Tr.
162-63. The Secretary's position at oral argument that, absent the
cover letter, prior approval was not required (Oral Arg. Tr. 27-30),
further supports the reasonableness of the operator's belief that, based
on the language of the regulation, prior approval was not required. The
Commission does not find unreasonable White's good faith belief that
prior approval was not required.

 The Secretary further asserts that White's belief was unreasonable based

on Inspector Jordan's testimony that, one week before the air reversal,
he advised White that MSHA approval was necessary for ventilation
changes. The inspector stated, "We had discussed it and, if I remember
correctly, I indicated to Mr. White, whatever he did, to make sure that
approval was obtained before it was done." Tr. 53 (emphasis added).
White denied discussing a prior approval requirement with anyone from
MSHA. Tr. 264. The inspector's testimony was uncertain; it does not
overcome the substantial evidence supporting the judge's determination
that White, whose testimony the judge credited, had a good faith belief
that he was complying with the regulations. 15 FMSHRC at 1977-78. The
Commission has often emphasized that a judge's credibility
determinations may not be overturned lightly. E.g. Quinland Coals,
Inc., 9 FMSHRC 1614, 1618 (September 1987).

 Substantial evidence supports the judge's conclusion that Basin had a

good faith, although mistaken, belief that it was complying with the
Secretary's regulations when it attempted to improve the safety of the
mine's ventilation system. The judge implicitly found that White's
belief was reasonable under the circumstances and that determination
also has substantial support in the record. Accordingly, the Commission
affirms the judge's determination that Basin's conduct was not
aggravated and, thus, that the violation did not result from
unwarrantable failure.

    B.   Section 110(c) Liability

Section 110(c) of the Mine Act provides that, whenever a corporate

operator violates
ÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 14

 Commissioners Backley, Doyle and Holen vote to affirm the judge's

determination that White was not liable for the violation under section
110(c) of the Act. Chairman Jordan votes to vacate and remand. This
section of the decision is based on the rationale of Commissioners

Backley, Doyle and Holen.

~1630
a mandatory safety or health standard, any agent of the corporate
operator who "knowingly authorized, ordered, or carried out such
violation" shall be subject to civil penalty. 30 U.S.C. § 820(c). The
Commission has held that a "violation under section 110(c) involves
aggravated conduct, not ordinary negligence." BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1245 (August 1992).

 The judge determined that the General Manager, Earl White, had not

knowingly authorized the violation. The Secretary contends that all the
evidence supporting a finding that the ventilation change resulted from
Basin's unwarrantable failure also compels a conclusion that White
should be held liable under section 110(c). White responds that his
reasonable, good faith belief that he was acting within the regulations
to improve safety precludes a finding of section 110(c) liability.

 Substantial evidence supports the judge's conclusion that White is not

liable. White's concern in implementing the ventilation change was
safety; he was attempting to rectify a serious ventilation problem. The
judge found that, although White was mistaken, he had a good faith
belief that he did not need MSHA's prior approval for the ventilation
change. 15 FMSHRC at 1977. The Commission has affirmed the judge's
implicit finding that White's belief was reasonable. The Commission
concludes that substantial evidence supports the judge's determination
that White did not engage in aggravated conduct and affirms the judge's
dismissal of the section 110(c) complaint.

   C.   High Methane Levels

 The second citation, as modified, alleged that Basin violated its

ventilation plan in that the mine's bleeder systems were to meet or
exceed the criteria set forth in 30 C.F.R. § 75.316-2(e) through
(i)(1991). See Gov't Ex. M-1, p. 37. The judge found a violation
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 15
All Commissioners reverse the judge's determination of violation with
respect to the methane accumulations.

FOOTNOTE 16
Section 75.316-2, in effect in June 1991, provided in relevant part:

     (h) The methane content of the air current in the bleeder
split at the point where such split enters any other air split
should not exceed 2.0 volume per centum.


     (i) When the return aircourses from all or part of the bleeder
entries of a gob area and air other than that used to ventilate the
gob area is passing through the return aircourses, the bleeder
connectors between the return aircourses and the gob shall be
considered as bleeder entries and the concentration of methane should
not exceed 2.0 volume per centum at the intersection of the bleeder
connectors and the return aircourses.

   In 1992, these provisions were superseded by 30 C.F.R.

75.323(e).

~1631
because the MSHA inspectors measured methane levels of 4% to 5% and more
in the tailgate section four feet from the Kennedy stoppings at
crosscuts 62 and 63, some 60 feet from the No. 3 return entry. 15 FMSHRC
at 1978. He determined that the inspector "measured the methane at the
proper location and manner." Id. at 1980. Basin argues that MSHA
measured the methane at a location other than that required by the plan.
It asserts that the readings were taken no more than four feet outby the
stoppings separating the gob from the bleeder taps, 50 to 60 feet inby
from where the measurements should have been taken, i.e., the mixing
point where the bleeder connectors intersect the return entry. The
Secretary counters that the measurements were taken at the appropriate
place and that the ventilation change caused impermissible levels of
methane to accumulate in the section.

 As discussed earlier, we are bound by the substantial evidence test when

reviewing an administrative law judge's factual determinations. The
Commission is guided by the settled principle that, in reviewing the
record, an appellate tribunal must consider anything in the record that
"fairly detracts" from the weight of the evidence that supports a
challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. at 488.

 The cited plan provisions address methane levels at the intersection of

bleeder connectors and return air courses (n.16, supra). The record
evidence, relied on by the judge (15 FMSHRC at 1978), reveals that the
inspectors measured the methane at two locations in the bleeder
connectors nearly 60 feet inby the mixing point where the connectors
intersect the return entry. The Secretary presented no evidence or
argument that these locations were valid testing points for the
bleeder-return intersections. Thus, the judge's finding that the
measurements were taken at proper locations lacks substantial
evidentiary support, and the Commission reverses his determination of
violation.

                  _______________________________

                 Richard V.   Backley, Commissioner

   The separate opinions of Commissioners follow.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 17

 We do not reach the S&S and unwarrantable failure issues associated with

this violation. We note, however, that the Secretary argued on review
that Basin's methane violation was the result of unwarrantable failure,
although he neither charged this nor argued the point below. In his
decision, the judge inadvertently addressed unwarrantable failure and
found that such an allegation had not been proven.

~1632
Commissioner Doyle and Commissioner Holen, concurring in part and dissenting
in part:

   We concur with the opinion in all respects except that we must

respectfully dissent in part from the rationale set forth for the
determination of whether the violation based on the ventilation change
was significant and substantial ("S&S").

   We agree with the judge that Inspector Jordan's testimony to the

effect that "anything that has the potential for serious injury or bodily
harm is automatically significant and substantial" and his further testimony
that "it is only a 'guesstimate'" as to the consequences of the violation
conflict with the Commission's settled law. 15 FMSHRC at 1975. Under
Commission precedent, neither statement would support an S&S finding.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).

   We believe that our colleagues err in failing to reach the issue

on which the judge based his decision, i.e., that an uncontested imminent
danger order, by virtue of being a final Commission order, establishes that
an imminent danger actually existed. 15 FMSHRC at 1976. They remand for
further analysis of the evidence. Slip op. at 10. Although we agree that
further analysis is required, the imminent danger order issue should be
decided at this stage. The judge's ruling on the effect of the imminent
danger order served as the sole basis for his S&S finding and must be
disposed of before the adequacy of the judge's analysis of the record
evidence is reached. Further, should the judge on remand again find that
the Secretary failed to establish S&S, his conclusion on the effect of
the imminent danger order would be left standing and another Commission
proceeding would be required to decide that issue.

   We would reverse the judge's determination. Section 107(e)(1)

of the Mine Act provides operators with the opportunity to challenge
section 107(a) imminent danger orders within 30 days after issuance. 30
U.S.C. 817. The finality of such orders is not referenced in the Mine
Act, except in section 111, as a basis for compensation to miners who
are idled as a consequence. 30 U.S.C. § 821. The judge's opinion appears
to be based on a theory that the imminent danger order, as a final order
of the Commission, is equivalent to a final judgment on a litigated issue.
Under this theory, Basin is prohibited, presumably under the doctrine of
either res judicata or collateral estoppel, from challenging whether an
imminent danger actually existed on June 25. We disagree that this is
the effect of a final imminent danger order.

   The judge offers no legal theory or other basis for his conclusion

that the allegations set forth in a final imminent danger order can be
used in another proceeding to irrebuttably establish those allegations.
The Mine Act and Commission precedent address the finality of an imminent
danger order only in the context of compensation proceedings arising under

~1633
section 111. The doctrines of res judicata and collateral estoppel would
not preclude challenge to such a final order because those doctrines
require the claim or issue to have been previously litigated. Moreover,
those doctrines have "the dual purpose of protecting litigants from the
burden of relitigating an identical issue with the same party or his privy
and of promoting judicial economy by preventing needless litigation."
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979), citing Blonder-
Tongue Lab., Inc. v. University of Ill. Found., 402 U.S. 313, 328-329 (1971).

   Here, neither purpose would be served. Presently, an operator has,

in most instances, no reason to contest an imminent danger order unless
compensation is in issue. Penalties are not assessed in connection with
an imminent danger order. Nor are alleged violations giving rise to an
imminent danger order part of the imminent danger order itself, but rather
are set forth in other citations and orders issued in connection with the
dangerous condition, as was the case here. Under the judge's logic,
operators desiring to avoid a per se finding of reasonable likelihood of
injury, the third element of the Commission's S&S test, would need to
litigate each and every imminent danger order, irrespective of whether
compensation were in issue. Where no imminent danger was found, the
reasonable likelihood allegation, which could be based on a less dangerous
and less immediate threat to safety, would still be in issue and subject to
litigation.

   To the extent our colleagues' opinion suggests that Ranger Fuel

Corp., 12 FMSHRC 363 (March 1990), would support the judge's conclusion,
we believe it is in error. Slip op. at 9. Ranger is not relevant here.
That case involved section 111 compensation to miners arising from an
imminent danger withdrawal order. Under section 111, limited compensation
is payable to miners irrespective of the validity of the withdrawal order
but the further compensation sought in Ranger was contingent upon the
relevant order becoming "final." 30 U.S.C. § 821; 12 FMSHRC at 373.
The operator attempted to contest the validity of a final imminent
danger order in the compensation proceeding although, under section 111,
the challenged compensation was contingent only upon the order being
final, not on the actual existence of an imminent danger. See 30 U.S.C. § 821. The Commission denied Ranger's challenge. 12 FMSHRC at 373. Here
the issue is not whether the order is final but whether a final
unlitigated imminent danger order can be used in a penalty proceeding
to irrebuttably establish that an imminent danger actually existed.

   We join in vacating the judge's determination that the Secretary

had failed to offer evidence establishing reasonable likelihood of injury.
On remand, we would ask the judge for further analysis of the record,
including Inspector Denning's testimony that the ventilation change
implemented by the operator caused methane to accumulate in the tailgate
as well as his testimony that such accumulation, along with the ignition
source of the longwall

~1634
equipment, had, in fact, created an imminent danger. Tr. at 123-24.
We would also ask the judge to resolve expressly whether the ventilation
change instituted by Mr. White remained in effect at the time of the
citation. Contrary to our colleagues' view, we would leave to the judge
the evaluation of whether an explosion five months earlier is relevant.
Slip op. at 9.

                             ________________________________
                             Joyce A. Doyle, Commissioner

                             __________________________________
                             Arlene Holen, Commissioner

~1635
Chairman Jordan, concurring in part and dissenting in part:

 I concur with Parts I., II. A. 1-3, and II. C. of the opinion. I

cannot join my col- leagues in affirming the judge's determination that
the unauthorized change to the ventilation plan was not the result of
the operator's unwarrantable failure to comply with 30 C.F.R. § 75.316
(1991). I also dissent from the majority's section 110(c), 30 U.S.C.
820(c), determination.

                                I.
 The judge decided that the allegations of unwarrantable failure should

be stricken because "the operator through its manager [Earl White] had a
good faith honest belief that he was complying with the regulations." 15
FMSHRC at 1978. I find this conclusion lacking in two respects. First,
the judge based his good faith finding on irreconcilably conflicting
credibility determinations and failed to analyze important record
evidence bearing on good faith. Second, the judge has failed to
determine the reasonableness of any belief on White's part that his
actions constituted the safest way of adhering to the requirements of
section 75.316. The judge's failure to analyze the reasonableness of
White's belief is particularly troublesome in light of significant
record evidence that casts doubt on Basin's claim that White reasonably
believed he did not need the approval of the Department of Labor's Mine
Safety and Health Administration ("MSHA") before reversing the air flow
from the configu- ration set forth in the ventilation plan.
Accordingly, I would vacate the judge's finding that there was no
unwarrantable failure and remand it for further consideration consistent
with the analysis contained in this opinion.

 The violation occurred when White unilaterally revised the ventilation

system on Sunday, June 23, 1991, so that it deviated substantially from
the ventilation plan that had been approved by MSHA. Basin maintains
that White reasonably and in good faith believed that section 75.316
permitted him to implement the major ventilation changes that were
carried out on June 23 before obtaining MSHA's approval. The question
to be determined is whether the judge properly analyzed the twin factors
of reasonableness and good faith in the context of the circumstances
confronting White at the time.

 The Commission has held that "if an operator reasonably believes in good

faith that the cited conduct is the safest method of compliance with
applicable regulations, even if it is in error," the operator will not
be found to have acted with the aggravated conduct necessary to
establish a finding that the conduct resulted from unwarrantable
failure. Southern Ohio Coal Co., 13 FMSHRC 912, 919 (June 1991). The
Commission's requirement that the operator demonstrate a good faith and
reasonable belief that it was pursuing the safest method of complying
with applicable regulations is analogous to the Commission's doctrine
that a miner's work refusal is protected when he entertains a
reasonable, good faith belief that his assigned duties involve a hazard.
Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC
803, 808-12 (April 1981).
ÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 1
All dates are 1991.

~1636
An operator's belief that his viol0000e conduct was the safest method of
complying with MSHA regulations must be both reasonable and held in good
faith in order to establish a defense to a charge of unwarrantable
failure. Southern Ohio Coal Co., supra; see Robinette, supra. "Good
faith belief simply means honest belief" that the conduct constitutes
the safest method of complying with applicable regulations. See
Robinette, 3 FMSHRC at 810. But a good faith belief in and of itself is
not sufficient to defend against the unwarrant- able failure charge.
"Good faith also implies an accompanying rule requiring validation of
reasonable belief." Id. at 811. In the work refusal context, the
Commission has held that reasonableness "is a simple requirement that
the miner's honest perception be a reasonable one under the
circumstances." Id. at 812 (emphasis in original). Similarly, in the
unwar- rantable failure setting, the operator's good faith belief should
meet the same requirement.

                                A.
 Bearing in mind that "in reviewing the whole record, an appellate

tribunal must also consider anything in the record that 'fairly
detracts' from the weight of the evidence that supports a challenged
finding," (Asarco Mining Co., 15 FMSHRC 1303, 1307 (July 1993), citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)), it is my view
that the judge made credibility determinations which cannot be squared
with his finding that White "had a good faith honest belief that he was
complying with the regulations." 15 FMSHRC at 1978.

 At the outset, I note that the good faith with which the Commission must

be con- cerned here has nothing to do with blameworthiness or good
intentions. Rather, good faith simply means that the operator in fact
entertained the belief that his course of action was designed to safely
comply with applicable regulations. The good faith requirement insures
that fraudulent or deceptive operator claims to be mistakenly acting in
accordance with MSHA regulations will not shield the operator from an
unwarrantable failure finding. See Robinette, 3 FMSHRC at 810. It is
therefore irrelevant for the purposes of the good faith inquiry whether
the operator is motivated to violate a safety standard in the hope or
expecta- tion that the result will be a safer working environment. If
the operator believes that he is violating MSHA regulations, his good
intentions will not translate into a good faith belief that he is safely
complying with applicable standards.

 Thus, the judge did not base his finding that White acted in good faith

on White's motivation for making the ventilation change. Rather, the
judge found that "White did not believe that 30 C.F.R. § 75.316 required
that he obtain prior approval from MSHA before implementing changes in
the ventilation system." 15 FMSHRC at 1977. In explaining their
agreement with the judge's unwarrantable failure finding, however, the
majority finds relevant the fact that "in directing the ventilation
change, White was attempting to improve the mine's ventilation." Slip
op. at 11. This conclusion misses the mark. While I accept at

face value Basin's protestations that White was motivated by a desire to
improve the ventila- tion, unless it is shown that he believed that he
was complying with MSHA regulations, he cannot be found to have acted in
good faith.

 The judge found White's belief that section 75.316 permitted him to

change the ventilation before getting MSHA approval to be "based on the
language in the regulations and his previous experience," and he
concluded that "this evidence is credible." 15 FMSH- RC at 1977. Thus,
the judge's conclusion regarding unwarrantable failure was based, at
least in part, on credibility determinations. The judge apparently
credited White's testimony regarding what White believed to be his
obligations under section 75.316. The judge offered no explanation why
he found White's testimony concerning the requirements under section
75.316 to be "credible" when, at the same time, he determined White was
not telling the truth regarding the events that led up to his decision
to implement the ventilation change.

 White's deputies, Steve Salazar and David Huey, testified that in the

course of discussing White's proposed ventilation changes, they warned
him of the need to obtain prior approval from MSHA. Tr. 63-64, 80-82.
White flatly denied receiving these warnings. Tr. 240. The judge,
however, credited the testimony of the deputies, concluding: "It is
true that Salazar and Huey told White prior notification was necessary."
15 FMSHRC at 1977. According to Salazar, White responded to the warning
about the need for prior approval by stating that "he was in charge of
the operation, not MSHA, and that he was going to run the operation."
Tr. 64; see also Tr. 82. This comment is hardly indicative of someone
who is attempting in good faith to ascertain his obligation under the
law. Neither the judge nor my colleagues discuss this comment, which I
view as detracting mightily from the conclusion that White was acting in
good faith. Nor do they discuss the impact of White's untruthful- ness
here on the judge's finding credible White's asserted belief that
section 75.316 permitted White to make major ventilation changes without
prior MSHA approval.

 Similarly, Inspector Jordan testified that he specifically warned White

just days before the incident that MSHA approval was required before any
change to the ventilation plan could be made. Tr. 53. Again, White
denied that Jordan warned him to contact MSHA first. Tr. 264. There is
no hint in the judge's decision that he even considered the differing
versions of Jordan and White, much less that he credited White over
Jordan concerning this conversation, as my colleagues imply. Slip op.
at 12. Yet this evidence bears directly on whether White in
ÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 2
Indeed it is difficult to imagine a situation in which an operator would
deliberately reverse the direction of the air flow without intending to
improve the ventilation. Good intentions, however, don't always
translate into safe results. Between Sunday, when White implemented the
ventilation change, and Tuesday morning, when MSHA arrived at the mine,
the miners were working under a ventilation scheme that, while it
represented White's view of the best way to provide air to the No. 1
longwall, did not have the benefit of MSHA's review and approval. Tr.
55, 208. During this time, the mine apparently experienced methane

accumulations resulting in the cessation of operations for over an hour.
Tr. 329.

~1638
fact believed that he was complying with MSHA regulations when he
made the ventilation change.

 As the judge did not find White to be a credible witness concerning his

deputies' explicit warning that prior notification of MSHA was
necessary, and because he failed to even discuss Jordan's testimony that
Jordan had specifically warned White about the require- ment of prior
MSHA approval, the judge's conclusion that White's action was based on
an honest good faith belief that he was complying with section 75.316
cannot be said to be supported by substantial evidence.

                                B.
 Equally damaging to the judge's unwarrantable failure conclusion is his

failure to discuss the reasonableness requirement at all or reach a
conclusion with respect thereto. Because an operator seeking to avoid
the unwarrantable failure sanction must establish reasonableness in
addition to good faith, the judge's conclusion that "[t]here was no
unwar- rantable failure because the operator through its manager had a
good faith honest belief that he was complying with the regulations" is,
as a matter of law, erroneous. 15 FMSHRC at 1978. This formulation by
the judge addresses only half of the two-pronged test under the good
faith reasonable belief defense to unwarrantable failure.

 The language of section 75.316 casts serious doubt on the reasonableness

of White's belief that he could unilaterally deviate from the approved
ventilation plan. Section 75.316 tracked section 303(o) of the Mine
Act, 30 U.S.C. § 863(o), and provided in pertinent part:

     A ventilation system and methane and dust control plan
and revisions thereof suitable to the conditions and the mining

ÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 3
Jordan testified: "We had discussed it and, if I remember correctly, I
indicated to Mr. White, whatever he did, to make sure that approval was
obtained before it was done." Tr. 53. Emphasizing the phrase "if I
remember correctly," the majority characterizes Jordan's testimony as
"uncertain." Slip op. at 12. I disagree. I construe Jordan's words as
a common locution employed by witnesses on the stand, rather than as a
query whether Jordan is in fact inventing the conversation to which he
himself is testifying. In any event, the point here is that whatever I
or the majority believe this phrase means, we cannot know what the judge
thought it meant, since he did not advert to Jordan's testimony at all.

FOOTNOTE 4
The judge's failure to even address the reasonableness question is not
cured by the majority's finding that "[t]he judge implicitly found that
White's belief was reasonable . . .- ." Slip op. at 12 (emphasis added).
As we have already had occasion to observe in this case, "[a] judge must
analyze and weigh the relevant testimony, make appropriate findings, and
explain the reasons for his decision." Slip op. at 10, citing
Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994) and
Anaconda Co., 3 FMSHRC 299, 299-300 (February 1981).

~1639
system of the coal mine and approved by the Secretary
shall be adopted by the operator and set out in printed form
on or before June 28, 1970. . . .

30 C.F.R. § 75.316 (emphasis added).

 I fail to see how the plain language of section 75.316 supports a view

that an operator is free to deviate from its approved ventilation plan
as long as that operator subsequently informs MSHA. Indeed it would
appear that by requiring an operator to adopt a ventilation plan that is
approved by the Secretary, the opposite assumption should arise: that
an operator is not free to deviate from the ventilation requirements
without prior recourse to the approval process that created them. The
specific requirement that "revisions" to the plan also be "approved" by
the Secretary lends further support to this view.

 The judge found that when White was told about the need to inform MSHA

of his planned ventilation change, he read section 75.316 and stated,
"Show me in the book where it says I have to notify MSHA of this
change." 15 FMSHRC at 1977. White apparently took the view that, since
section 75.316 did not contain language explicitly prohibiting variance
from the approved ventilation plan, he was free to deviate from the plan
and simply inform MSHA about it later. My colleagues and the judge
below apparently consider it reasonable that White could reach this
conclusion after reading section 75.316. I decline to affirm a judge's
ruling which appears to accept as reasonable a view of the law which I
find to be not only illogical, but also contradicted by the regulatory
language and the case law.

 The case law concerning enforcement of ventilation plans undermines the

reasonable- ness of any belief on White's part that he could
unilaterally change the ventilation plan. A manager of White's
experience may be fairly charged with knowledge of the basic holdings
under the Mine Act, just as a miner claiming to have engaged in a
protected work refusal may be charged under certain circumstances with
knowledge of the applicable safety standard. See Secretary on behalf of
Boswell v. National Cement Co., Inc., No. SE 93-48- DM, 16 FMSHRC ____,
slip op. at 8 (August 17, 1994) (Chairman Jordan, concurring). It is
well established under Commission and court precedent that once a
ventilation plan is approved and adopted, its provisions and revisions
are enforceable as mandatory standards. UMWA v. Dole, 870 F.2d 662, 671
(D.C. Cir. 1989); Freeman United Coal Mining Co, 11 FMSHRC 161, 164
(February 1989); Jim Walter Resources Inc., 9 FMSHRC 903, 907 (May
1987). Just as it would be unreasonable for an operator to assume that
it could deviate from the requirements of a mandatory safety standard,
it is equally unreasonable for an operator to assume that it may
unilaterally change its approved ventilation plan, which is enforceable
as a mandatory safety standard.
ÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 5
White has worked in the mining industry since 1965. Tr. 244.

~1640
The judge's decision fails to analyze the reasonableness of White's
belief in the context of the language of section 75.316 or the cases
interpreting that standard. Moreover, the majority's conclusion that
White's interpretation of section 75.316 was reasonable conflicts with
the judge's stated view that "[i]f the Commission accepts White's theory
then the ventilation regulations would be meaningless." 15 FMSHRC at
1972. On this last point at least the judge was on target. Obviously,
if an operator were permitted to change its approved ventilation plan at
will, and notify MSHA post hoc, section 75.316's requirement that the
mine operate under a "ventilation . . . plan and revisions thereof . . .
approved by the Secretary" would be a nullity. I am unable to conclude
that an operator who insists on acting in accordance with a view of the
law that makes the ventilation requirements "mean- ingless" should be
considered to entertain a reasonable belief that his conduct complies
with the ventilation regulation.

 The case might be otherwise had White been faced with an emergency

requiring immediate action without the possibility of contacting MSHA.
But the judge made no such finding, and the record here certainly does
not suggest this was the case. The record in fact contains significant
evidence that undercuts any claim that White was confronted with an
unexpected emergency situation which prevented him from obtaining the
necessary prior approval from MSHA.

 Thus, Inspector Denning testified that the conditions prompting the air

change had developed over an extended period of time, and that proper
plans could have been submitted to and approved by MSHA. Tr. 137-38.
Inspector Jordan described the problem as an "ongoing" one that had been
occurring for at least two to three weeks. Tr. 41. According to him,
White's unauthorized changes to the ventilation system converted what
had been a "borderline" problem into an "imminent danger" prompting the
issuance of a withdrawal order on the evening of Tuesday, June 25. Tr.

36. Basin's project engineer described the problem as occurring "off
    and on from early June up to the 21st." Tr. 419. It is also clear from
    the record that White did not need to fear that any increase in the
    severity of the problem would go undetected. Mine Foreman Salazar
    explained that subsequent to an explosion which had occurred five months
    earlier, employees were monitoring the area "24 hours a day" and were
    working with MSHA on the ventilation in that area. Tr. 62; see Tr. 27.
    Moreover, as counsel for Basin conceded at oral argument, there is
    nothing in the record that indicates MSHA warned White that he might be
    cited unless he made significant changes in the ventilation system.
    Oral Arg. Tr. 43.

    The closest the judge comes to even hinting at the existence of an
    exigent situation is his conclusion that "White felt he could have been
    cited for failing to correct the problems in
    ÄÄÄÄÄÄÄÄÄÄÄ
    FOOTNOTE 6

    The record contains conflicting testimony about whether White's changes
    caused the conditions which prompted the issuance of the imminent danger
    order. Because the judge failed to reconcile the conflict and make the
    necessary findings of fact, the Commission has vacated the S&S finding
    and remanded for additional proceedings. Slip op. at 8-10.

~1641
the ventilation system." 15 FMSHRC at 1977. But the judge failed to
discuss any evidence relating to this issue, nor did he make any
findings of fact which would allow us to conclude that White's concern
in this regard was in fact reasonable.

 The majority relies on the explicit requirement in section 75.370, the

successor to section 75.316, that major changes to the ventilation
system must be submitted to and approved by the MSHA district manager
before implementation. Slip op. at 12. My colleagues also cite MSHA
inspector Denning's testimony to the effect that section 75.316 provided
"no guidance" for mine operators as to the type of changes that could be
made without prior approval, and they point to the Secretary's position
at oral argument that, absent the cover letter, prior approval was not
required. Id. On the basis of this evidence, the majority concludes
that it "does not find unreasonable White's good faith belief that prior
approval was not required." Id.
ÄÄÄÄÄÄÄÄÄÄ
FOOTNOTE 7

 The judge's sole record reference to the conditions in the mine prior to

the ventilation change is a parenthetical instruction to "see Exhibit
BR-1" in order to learn of "apparent problems in the system." 15 FMSHRC
at 1977. BR-1 consists of a 3-page typed chronolo- gy covering the
period from June 1 through June 29 with 279 pages of supporting
documents including preshift, daily and on-shift reports. It is
certainly not apparent from these examination reports that conditions
arose which caused White to decide on Friday, June 21, that he must
implement immediate changes. Indeed the opposite conclusion arises.
For instance, under the heading "Violation or Hazardous Condition," the
preshift exam for the Northwest longwall at 4:00 a.m. that day reports
"[n]one observed." The on-shift report shows the highest level of
methane to be 0.5% and reports that the area was "safe at time of
inspection." The preshift at 1:04 p.m. on June 21 reports no hazardous
conditions and the highest methane level to be 0.5%, the same reading
reported in the on-shift report for that evening. The six examination
reports dated June 22 likewise reflect methane levels well under 1%
(although the chronology prepared by White inexplicably refers to a
reading of 1.1 - 1.3% for that date).

 The judge's conclusion that White feared being cited for failing to

change the ventilation system might be a reference to White's testimony
that other regulations, such as 30 C.F.R. § 75.308 and 75.309, mandate
changes or adjustments when certain levels of methane are found in
specified areas of the mine. Tr. 248-49, 370. Of course, whether White
actually considered these regulations at the time he made his decision
is open to question since, according to the version of events described
by White's deputies and accepted by the judge, it would appear that
White's sole reference in determining his obligation to obtain prior
authorization from MSHA was section 75.316. 15 FMSHRC at 1977. While
reliance on these other regulations might be a relevant consideration in
assessing whether an operator acted unwarrantably, the judge has made no
findings which would allow us to conclude either that White in fact
relied on these regulations or that such reliance was reasonable under
the circumstances.

~1642
This conclusion is unfounded. The commentary accompanying MSHA's
rulemaking indicates that MSHA viewed the prior approval requirement for
major ventilation changes as a continuation of the practice already in
existence. 57 Fed. Reg. 20868, 20899 (May 15, 1992). Moreover, while
Inspector Denning may not have been able to point to exact guidelines
that spelled out the type of ventilation changes that could not be made
without prior approval, he was certain that "[a] major change, such as
reversing the air in an air course, would definitely require approval."
Tr. 173. Finally, the comment of Secretary's counsel that the majority
rely on to support the reasonableness of White's belief has itself been
rejected as an unreasonable view of the regulation. Slip op. at 7.

 Whether White could reasonably conclude he did not need MSHA's prior

authoriza- tion must be determined on the basis of the particular
circumstances confronting White at the time. In this regard, I consider
it relevant that when White decided to unilaterally implement the
ventilation change, the mine in question was a gassy mine and only five
months earlier had experienced a major explosion which caused varying
degrees of injury to eleven miners. Tr. 27, 39. Moreover, the
explosion occurred in the very section of the mine, the Northwest No. 1
longwall panel, where White planned to change the ventilation design.
Tr. 142-43. It seems to me these facts alone, which were not considered
by the judge, would seriously undermine the reasonableness of White's
belief that no prior authorization from MSHA was needed before
implementing changes that significantly departed from the approved
ventilation plan. Here, however, we have the additional fact that White
reversed the air flow in the face of explicit warnings by his two
subordinates that MSHA insisted on approving ventilation changes at the
Golden Eagle Mine prior to their implementation. Tr. 63-64, 80-82. The
judge should have considered whether White's insistence on going forward
under these circumstances, when he could have easily picked up the phone
and clarified his obliga- tions,
ÄÄÄÄÄÄÄÄ
FOOTNOTE 8

 Before implementing a change of this magnitude, White had to idle the

mine and shut off the power; White's change was therefore a far cry from
merely adjusting a line curtain or opening a regulator, the kinds of
adjustments to ventilation that Inspectors Denning and Reitz testified
were authorized by 30 C.F.R. § 75.308 and 75.309 and would not require
prior approval. Tr. 157, 189-90, 207-08. White himself seemed to
recognize the distinction. While he provided MSHA with post-hoc
notification of his air reversal, he did not feel it necessary to
provide even such after-the-fact notification when he opened a regulator
to provide more air on the longwall. Tr. 261-62.

FOOTNOTE 9

 Inspector Jordan testified that the Golden Eagle Mine "is number one in

the State of Colorado for methane liberation." Tr. 26.

FOOTNOTE 10

 Although White took over the operation of the mine on June 1, he had

been at the property on a daily basis since April 9 and during that time
learned about the explosion that occurred. Tr. 339-40.

FOOTNOTE 11

 At oral argument, counsel for the Secretary confirmed that someone from

MSHA would have been available on the weekend to handle calls. Oral
Arg. Tr. 35.

~1643
amounted to a willful intent to remain in the dark about what section
75.316 required. The judge should have determined whether such action
fell outside the protection of the good faith and reasonable belief
defense the Commission has articulated, and accordingly constitut- ed
aggravated conduct.

                                II.
 The judge's failure to reconcile inconsistent credibility

determinations, and his failure to consider evidence which detracts from
a finding that White acted reasonably and in good faith, cause me to
conclude that the judge's finding of no unwarrantable failure is not
supported by substantial evidence and should therefore be vacated and
the matter remanded for further proceedings. With respect to the
Secretary's assessment of a civil penalty against White personally
pursuant to section 110(c) of the Mine Act, the judge merely stated,
"The evidence as to White has been previously reviewed. His conduct was
not 'aggravated.'" 15 FMSHRC at 1981. Because the judge's analysis of
that evidence was flawed, as I have detailed above, I would also vacate
and remand the judge's section 110(c) finding.

                              Mary Lu Jordan, Chairman