Secretary of Labor, MSHA v. Black Castle Mining Company and Michael Vira

Plain-English summary

A bulldozer operator died when his machine ruptured a buried natural-gas pipeline at Black Castle's surface coal mine. MSHA alleged that the operator and superintendent Michael Vira failed to identify and correct inadequate pipeline markings during required examinations of active working areas. The Commission held that the accident site was outside the active working area because the miner had been assigned to work at the Clarion seam and management had no reason to expect him to travel about 500 feet beyond it. The majority also found substantial evidence supporting the judge's conclusion that the pipeline was adequately marked in the assigned work area. It affirmed the vacatur of the operator citation and dismissal of the section 110(c) case against Vira; Commissioner Robert F. Cohen, Jr. concurred reluctantly because he viewed the marking evidence and witness accounts with serious reservations.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1713(a)
• Outcome: The Commission affirmed the judge's vacatur of the operator citation and dismissal of the personal-liability proceeding.
• Key point: The daily examination rule reaches hazardous conditions in active working areas, not every place a miner might travel beyond the work that management reasonably anticipated.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C.
20004-1710

February 12, 2014

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

BLACK CASTLE MINING COMPANY
and

MICHAEL VIRA, employed by

BLACK CASTLE MINING
COMPANY            

Docket Nos. WEVA 2006-891-R

WEVA
2007-288

WEVA
2007-421

BEFORE: Jordan, Chairman;
Young, Cohen, Nakamura, and Althen, Commissioners

DECISION

BY: Jordan, Chairman; Young, Nakamura, and Althen,
Commissioners

The Department of
Labor’s Mine Safety and Health Administration (“MSHA”) cited Black Castle
Mining Company and proposed penalties against the operator and its supervisor
Michael Vira. The enforcement actions at issue here resulted from MSHA’s
investigation into a fatal accident involving a bulldozer operator whose dozer
came into contact with, and ruptured, a gas line. The citation alleged that
Black Castle and Vira failed to adequately comply with the requirement to
examine active working areas each shift for hazardous conditions.1 These consolidated
cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C §
801 et seq. (2012) (“Mine Act” or “Act”).

The
administrative law Judge vacated the citation. He assumed the accident occurred
in an active working area. 32 FMSHRC 132, 135 (Jan. 2010) (ALJ). He concluded,
however, that: (1) because the gas line had been present on the mine for at
least 10 years, was marked by a right of way edged by trees, and was well known
by everyone at the mine, the gas line did not constitute a reportable
“hazardous condition” under section 77.1713(a), and (2) neither the fatally
injured miner nor anyone else had given Black Castle an indication that the
actual location of the gas line needed to be marked. 32 FMSHRC at 137, 144. The
Commission granted the Secretary’s petition for discretionary review and, for
the following reasons, we affirm the Judge’s decision in result.

I.

Factual and Procedural Background

Black Castle is
the operator of a large surface coal mine in West Virginia which contains a
16-inch-wide and 32-mile-long natural gas pipeline operated by Equitable
Resources. 32 FMSHRC at 133, 136; Tr. 78-80. In early 2006, Black Castle began
preparations to conduct additional mining operations at a location known as the
East of Stollings Amendment area. 32 FMSHRC at 133. This site has five coal
seams and Black Castle intended to mine the Stockton seam using a method known
as contour mining. Tr. 137-38, 315-16. To accomplish this, Black Castle needed
to build an access road from the Judy Low Gap area to the Clarion coal seam
(the seam of coal above the Stockton in elevation), expose the Clarion seam
around the hillside, and create a “drill bench” (a flat area on a hillside)
along the Clarion seam. Tr. 131. From this bench, Black Castle intended to
drill holes down to the Stockton coal seam, load the holes with explosives, and
blast material to reach the Stockton coal. Id. at 140.

Black Castle
identified Paul Moss, who was classified as a “master dozer operator,” as the
individual to perform this work. Tr. 326, 614. Management officials
subsequently met with Moss to explain the assignment, and during these
meetings, the location of the pipeline right of way was also discussed.                                                                                  

On the morning of
January 31, 2006, Moss began constructing the access road uphill from the Judy
Low Gap area in order to locate the Clarion coal seam. 32 FMSHRC at 133. He had
not reached the Clarion seam when he stopped for the day. Id.The
following morning, February 1, Moss returned to the area to continue
construction. Id. Tragically, sometime after 2:00 p.m. his bulldozer
ruptured the gas line, which burst into flames, and Moss was fatally injured. Id.
at 133-34. After conducting an accident investigation, MSHA issued a
citation to Black Castle, alleging that it had violated section 77.1713(a)
because, inter alia, “[a]n active  16-inch diameter gas line was
buried and was not adequately marked in the area where the bulldozer was being
operated” and “[t]he presence of the unmarked gas line constituted a hazardous
condition which should have been reported and corrected during the required
daily inspection.” Gov. Ex. 1. A subsequent special investigation pursuant to
section 110(c) of the Act resulted in Vira being charged personally with a
knowing violation of the same standard.2

II.

Disposition

As a threshold
matter, we conclude that the mere presence of a well-known gas pipeline at the
mine is not necessarily a hazardous condition that must be regularly noted in
the examination book pursuant to section 77.1713(a). The gas line at this mine
had been in place for at least ten years, and the right of way containing the
gas line was generally marked off with certain identifying features. As the
Judge noted, everyone working at the mine knew that there was a gas line on the
East Stollings Amendment area. 32 FMSHRC at 137, 142. Moreover, MSHA had never
previously cited Black Castle for failing to report the presence of the gas
line in an on-shift examination report.

Nonetheless, a
hazardous condition may exist when markings fail to sufficiently indicate a gas
line’s location - a situation which the Secretary argues was present here. The
regulation the Secretary alleges Black Castle violated, however, imposes a
requirement to examine for and correct hazardous conditions only as to “each
active working area.” Therefore, to prove a violation of section 77.1713(a),
the Secretary must demonstrate that the operator failed to examine, report or
correct a hazardous condition in the “active working area.” See 30 C.F.R. §
77.1713(a). In other words, an examiner at this mine seeking to comply with
section 77.1713(a) is not required to examine the entire gas pipeline; he or
she need only determine whether the pipeline is adequately marked in the
“active working areas.” Such examiner would be required to confirm that the
markings sufficiently informed a miner of his or her location relative to the
gas line. If the markings were not adequate, the examiner would be required to
note that fact, and the operator would be required to take corrective action.

Although compliance
with section 77.1713 is dependent upon an adequate examination of “the active
working area,” that particular term is not defined in either the statute or
regulations. In his post-hearing brief below, the Secretary urged that the term
“active working area” should be read to include all areas where it is
reasonably foreseeable that miners will work or travel when carrying out their
work-related tasks. S. Post-Hearing Br. at 29. We also note that there is a
definition of “active workings” at 30 C.F.R. § 77.2(a), which states that the
term “means any place in a coal mine where miners are normally required to work
or travel.” For the reasons set forth below, we conclude that the area in which
the accident occurred was not an active working area under either Section
77.2(a) or the Secretary’s proffered definition.

Assuming arguendo
that the gas line did constitute a hazardous condition at the accident
site, one must still determine whether this hazard should have been detected
and corrected during the February 1 examination required by section 77.1713(a).3 An affirmative answer
would require a determination that the accident site was located in “the active
working area.” Even were we to apply the Secretary’s suggested definition of
that term, we must ask whether it was reasonably foreseeable that a miner would
be in the accident area when carrying out his or her work related tasks during
the shift(s) covered by the operator’s examination.

The Judge concluded that “Black Castle had no reason
to anticipate that Moss would go above the Clarion seam because it had nothing
to do with his work assignment.” 32 FMSHRC at 143. This finding is amply
supported by the record.4

The evidence
demonstrates that the accident location was not a part of Moss’ assigned work
area and that management and miners alike were surprised that Moss had moved to
the area where he struck the gas line. Id. At the time of the accident,
Moss was 265 vertical feet from his assigned work area. Id. at 142.
Moreover, because he could not go straight uphill, he had actually trammed 500
feet from the Clarion seam. Id., citing Tr. 711, Resp. Ex. 3. In
addition, Jackson Woodward, a dozer operator who was working on a hill opposite
from Moss at the time of the accident, testified that he was surprised to see
Moss moving toward the gas line around 2:30 p.m., because Moss was far away
from the place that he was benching. 32 FMSHRC at 143.

Attempting to
characterize the accident site as a place that Moss could be expected to work,
the Secretary suggests that Moss might have been removing material such as
felled trees from above the Clarion seam, possibly believing that such material
might have posed a hazard to miners and equipment during the removal of coal
from the Stockton seam. S. Br. at 26. The Secretary also argues that it would
have been an accepted practice for the bulldozer operator to create access
roads to the next higher coal seam. Id. at 26-27.

The Judge
rejected these contentions, stating “[t]here is no evidence to support these
theories.” 32 FMSHRC at 142. He relied on production manager William Marcum’s
testimony that in performing the benching area on the Clarion seam, Moss would
have had no need to remove trees far above that seam for safety purposes. 32
FMSHRC at 143, citing Tr. 645-46. In addition, Michael Boothe, Moss’
immediate supervisor, testified that he did not anticipate that Moss would go
to the area where the accident occurred because he and Moss decided that constructing
an access road was not feasible at that time, and Moss knew that Boothe had no
intention of creating a second access road. Tr. 679-80.

Lastly, the
Secretary asserted that the material found pushed up in the blade after the
explosion demonstrates that Moss was pushing material when the accident
occurred. S. Br. at 26; S. Post-Hearing Br. at 29. This contention was rebutted
by Marcum’s testimony that bulldozer operators will often drop their blades
when preparing to go downhill to control the speed of the descent. Tr. 644-45.     

It, thus,
appears that even under the Secretary’s proposed interpretation of the term,
the area in which Moss was working at the time of the accident could not
reasonably be considered an “active working area” of the mine, so as to bring
it under the purview of section 77.1713(a). That being the case, the area was
not required to be examined for hazardous conditions as part of the on-shift
inspection of February 1. Even assuming, therefore, that the pipeline was not
sufficiently marked in the area of the accident, as the Secretary alleges, the
operator was not required to detect and correct this condition in accordance
with section 77.1713(a).

In maintaining
that the gas line was not adequately identified, the Secretary’s case focused
almost exclusively on the lack of identifying markers at the accident site. The
Secretary presented evidence, for example, indicating that the closest
carsonite marker was 250 to 300 feet away from the accident site, and that the
orange pin flags were not visible from the accident site. S. Br. at 20, citing
Tr. 85, 413, 730. Although Black Castle explained that it left a row of trees
along the gas line right of way to help identify its location, the Secretary
presented photographic evidence of the accident site showing no trees standing
in the immediate area of the accident. S. Br. at 20, citing Tr. 122.
Based on this evidence, one might well conclude that a miner located where Moss
was when the accident occurred would not have been able to ascertain his or her
location relative to the gas line, and this section of the gas line could,
therefore, be considered a hazardous condition. However, as explained above,
this evidence does not prove the existence of a hazard in an active working
area.        

Despite the
Secretary’s emphasis on the presence of hazards near the scene of the accident,
our inquiry does not end there. We have also reviewed the record evidence and
the parties’ arguments regarding hazards in the area where Moss was assigned to
work on February 1, before he moved to the accident site. This is the relevant
inquiry, as it goes to the question of whether there was a hazardous condition
(such as an inadequately marked pipeline) in the active working area that Vira
should have noted when he conducted his examinations that morning.

The Judge found
that the gas line was marked, at a minimum, by a mowed or muddy right-of-way
edged by trees, and that this was one reason why the pipeline was not perceived
as a hazardous condition. 32 FMSHRC at 137. In effect, the Judge made a finding
that the gas line was adequately marked. Although this finding did not pertain
specifically to the area where Moss was working on February 1, before he left
for the accident site, it is a finding that we view as pertaining to the gas
line in its entirety on the mine property, and thus, encompasses this area. The
Judge ultimately concluded that the Secretary failed to prove the existence of
a hazardous condition.

The Judge’s
factual finding is reviewed under a substantial evidence standard of review. 30
U.S.C. § 823(d)(2)(A)(ii)(I). Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to support the [Judge’s]
conclusion.” Consolidation Coal Co., 35 FMSHRC 2326, 2328 n. 3 (Aug.
2013) (citations omitted). In assessing whether a finding is supported by
substantial evidence, the record as a whole must be considered, including
evidence in the record that “fairly detracts” from the finding. Prairie
State Generating Co., LLC, 35 FMSHRC 1985, 1991 n.9 (July 2013) (citations omitted).

We conclude
that there is substantial evidence in the record to support the Judge’s finding
as it applied to the area where Moss was assigned to work on the morning of
February 1 before he went to the accident site. First, William Marcum, the
Black Castle production manager, testified that, as a general matter, such
pipelines are marked with yellow stakes and a clear right of way. 32 FMSHRC at
136; Tr. 624. More specifically, Marcum testified that the gas line at issue
had plastic markers staked in the ground by the gas company, and that some of
those markers were in the area between the Low Gap area and the area where the
dozer was located after the accident. Tr. 627.

Marcum also
testified that there was a right-of-way along the pipeline approximately 30 or
40 feet wide with an all-terrain vehicle trail. Tr. 625-26. This is supported
by the testimony of Rejean Boulet, a contractor from East Cumberland hired to
cut trees along the pipeline. He testified that he left a row of trees on each
side of it. Tr. 286. Brian Miller, superintendent of pipelines for Equitable
Resources, also testified that there was a right of way with clear vegetation
around the gas line. Tr. 99, 107. Miller testified that the entire pipeline had
been mowed earlier that year and that the vegetation on the right of way was
considerably smaller than any of the wood line on either side. Tr. 107.

In addition to
the evidence regarding the presence of markers and a clear right-of-way, there
was testimony regarding whether Moss was aware of the location of the pipeline
(which could be an indication of whether it was adequately marked). Michael
Boothe, the Black Castle drill blast foreman and Moss’ supervisor, testified
that on February 1, he spoke with Moss by CB radio and later went to see him.
Tr. 390, 392-93.  Boothe stated that during these conversations, Moss did not
mention the gas line and, in fact, never expressed any fear about the gas line
to Boothe. Tr. 394, 673. The Judge noted that there was nothing to indicate
that Boothe was not credible. 32 FMSHRC at 142.

The Secretary did
elicit testimony from witnesses regarding a statement by Moss that he was not
certain where the pipeline was located. While it might be possible to infer
from such a statement that the pipeline was not adequately marked, we conclude
that the record in this case does not suffice as a basis for us to overturn the
Judge’s finding to the contrary.

The evidence
includes testimony from Kenneth Smith, who stated that as he and Moss were
driving to work on February 1, Moss said he was not sure where the gas line
was. Tr. 199-200. Smith also testified that he heard Moss talking on the CB
radio to Vira around 9:00 a.m. that day and that Moss stated he was concerned
he might be getting too close to the gas line. Tr. 207-09. The Secretary also
offered the testimony of Elmer Bishop (an East Cumberland contract employee
clearing trees at the mine). Tr. 291-307. He stated that around 8:00 a.m. on
February 1, he heard Moss call Vira and that Moss hollered at Vira and told him
he did not know where the gas line was, or he didn’t have any idea where it
was. Tr. 296. However, Vira categorically denied that Moss had asked him about
the location of the gas line. Tr. 768-69. Moreover, the Judge found that “[t]o
the extent that Bishop’s statements cannot be reconciled with the other
witnesses, I find that he is not credible.” 32 FMSHRC at 141.

Finally, Lonnie
L. Wood (survey lineman for Black Castle) testified that he was assigned to
mark 400-500 feet of the gas line in the Low Gap area. Tr. 564. He stated that
Moss asked him twice about the location of the gas line in the Low Gap area,
although he was no longer working there. The second conversation took place at
approximately 9:00 a.m. on February 1. Tr. 566-74. The Judge concluded that
when Moss talked with the surveyors, “while he expressed some curiosity about
where the gas line went, he did not state any concerns or ask them to proceed
to where he was working and show him where the gas line was.” 32 FMSHRC at 141.

In his decision,
the Judge reviewed and discussed all of this testimony at length. 32 FMSHRC at
137-42. He made credibility determinations, either expressly or implicitly, and
concluded that “[t]here certainly is no evidence that [Moss] said anything to
the affect [sic] of - ‘I don’t know where the gas line is, how can I stay 100
feet from it?” or, “Have someone mark it for me,’ or anything like that.” 32
FMSHRC at 141.5

Our inquiry is
limited to whether it is reasonable to accept the operator’s evidence (as set
forth above) as sufficient to support the Judge’s conclusion that the gas line
was adequately marked (and that consequently there was not a need to report a
lack of markings as hazardous, and that therefore the examinations conducted
February 1 were adequate). Even considering the Secretary’s evidence that
arguably “fairly detracts” from this finding, we nonetheless conclude that
there is substantial evidence in the record to support the Judge’s finding.6

We also affirm
the Judge’s conclusion that Vira did not violate section 77.1713(a). Id.
at 144. As discussed above, substantial evidence supports the Judge’s finding
on the adequacy of the on-shift examination. We therefore conclude that the
civil penalty proceeding brought against Vira under section 110(c) was properly
dismissed by the Judge.

/s/
Mary Lu Jordan                   

Mary
Lu Jordan, Chairman

/s/Michael
G. Young                  

Michael
G. Young, Commissioner

/s/
Patrick K. Nakamura                                                                                                            

Patrick K. Nakamura, Commissioner

/s/
William I. Althen                   

William
I. Althen, Commissioner

Commissioner Cohen,
concurring:

I
join my colleagues in result for the reason that as an appellate body, the
Commission must affirm an administrative law judge’s decision if it is
supported by substantial evidence. In this case, I must conclude, albeit
reluctantly, that the judge’s findings, based on credibility determinations,
are supported by substantial evidence. I write separately in order to address
several lingering questions, as well as reservations I have about the accounts
provided by certain Black Castle witnesses regarding the events leading up to
Paul Moss’ fatal accident.

On
February 1, 2006, Paul Moss was fatally injured when the bulldozer he was
operating at Black Castle Mining Company’s surface mine in Boone County, West
Virginia, contacted and ruptured a 16-inch low-pressure, high-volume natural
gas line, which burst into flames. Following an investigation, MSHA found a
violation of section 77.1713(a) of the regulations, 30 C.F.R. § 77.1713(a),
alleging that “[a]n adequate daily examination for hazardous conditions was not
made of the active working area . . . of the mine.” Gov. Ex. 1. MSHA issued
proposed penalty assessments against Black Castle, and also against its Mine
Superintendant Michael Vira under section 110(c) of the Mine Act. The pivotal
questions posed by this case are: (1) whether the site of the explosion was
part of the “active working area”, and (2) whether the gas line was “adequately
marked”. To answer the first question, it is important to know why Moss was so
far from the Clarion seam when the accident occurred.

Active Working Area

The
judge determined that the work being performed by Moss and the proximity of the
gas line right-of-way to the access road, at least in the Low Gap area, was
sufficient to deem the accident site part of the active working area. 32 FMSHRC
132, 136 (Jan. 2010) (ALJ). My colleagues, however, have concluded that because
Black Castle had no reason to anticipate that Moss would travel above the
Clarion seam, the accident site was not an “active working area” under 30
C.F.R. § 77.2 or the Secretary’s proffered definition. Slip op. 4-5. I am not
so convinced.

The
explosion that killed Moss occurred some 265 vertical feet away from the
outcrop of the Clarion coal seam where Moss had been assigned to construct a
bench. Moss had actually trammed his dozer 500 feet from the Clarion seam to
reach the place where he died. Tr. 710-11, Resp. Ex. 3. Although Black Castle
management testified that Moss had no reason to tram so far away from the
Clarion seam, it appears to me that the distance he traveled was too far to be
inadvertent. There are three possibilities for why Moss was so far from the
Clarion seam: 1) Moss was off on a lark, totally unrelated to his instructions
from management; 2) (as the Secretary contends) Moss traveled above the seam to
clear material from the top of the future highwall

which would be created when
overburden was removed from above the Stockton coal seam,1 or to carve an access road to another
level; or 3) Moss was given direction by a supervisor that caused him to be up
on the ridge near the gas line.

I
find the first scenario unlikely. By all accounts, Moss, a master dozer
operator, was highly experienced and safety conscious. Tr. 177-78, 217, 229-30,
294, 377. Production Manager William Marcum testified that he was probably the
best dozer operator at the mine – a go-to guy and one of Black Castle’s best
employees. Tr. 326. Michael Boothe, Moss’ immediate supervisor, and Michael
Vira stated that Moss was probably the most experienced dozer operator at the
mine. Tr. 177-78, 372, 376-77. Kenneth Smith and Jackson Woodard, fellow dozer
operators, testified that Moss was safety conscious and not a risk taker. Tr.
217, 230. He was also known to follow directions. Tr. 217, 377. Therefore, in
light of this overwhelming testimony, it is reasonable to conclude that
reckless behavior – tramming 500 feet from where he should have been in
defiance of his orders – would be out of character for Moss and, therefore,
highly improbable.

The
second scenario, however, is plausible, despite the judge’s rejection of this
theory as speculative. 32 FMSHRC at 142-43. According to the Secretary’s
theory, which is supported by Woodard’s undisputed testimony, it is not
uncommon for dozer operators during the benching process to work outside of the
coal seam to remove debris from the pathway, material from the highwall, or to
create an access road. Tr. 244-49. Woodard testified that dozer operators are
given wide discretion in the manner in which they complete their assigned
tasks. Tr. 249-50. Thus, it would seem reasonably foreseeable that Moss might
work above the Clarion bench as he deemed necessary, as part of his assignment.
This would make the accident site part of the “active working area.”

The
last scenario, that management directed Moss up on the ridge, is also possible.
The judge’s statement that “no one knows why Moss took the bulldozer where he
did,” may not necessarily be accurate. See 32 FMSHRC at 142. The
evidence suggests that Moss may well have been directed to the ridge. Woodard
testified that on the morning of the accident, Moss did not know on what level
he was supposed to start benching, so Woodard sent a message to have Boothe
“get with” Moss. Tr. 234. Boothe made a quick stop at Moss’ work site shortly
thereafter, left, then returned just before noon. Tr. 234. Woodard stated that
after a 15 minute meeting with Boothe, Moss made a ramp to a higher level where
he began benching until sometime after 2:00 p.m.  Tr. 235. Woodard then looked
over and saw Moss coming towards the gas line, which struck him as “funny” that
Moss was so far away from where he had been benching. Tr. 235-36, 255-56.
Woodard, unsuccessfully, tried to call Moss because he wondered if his orders
had been changed. Tr. 236, 255, 262. When questioned by Respondent’s counsel
whether Woodard knew that Moss, being up on the ridge, was beyond his work
area, Woodard answered:

Well, I
did not know that. . . . I knew that he was supposed to be working up [on the
Clarion seam], but I had no idea what conversation that he and Mike Boothe had.
Mike Boothe could have changed his orders or --- I mean, I didn’t know. That’s
the reason, you know --- I thought it was strange was the reason I called.

Tr. 262. Clearly, Woodard
recognized that Boothe might have given Moss additional instructions that
placed him at the accident site. However, the judge credited Boothe’s account
that Moss made no mention of the gas line during these conversations, and that
only Moss’ slow progress was discussed. Tr. 394,
396-97. Had the judge credited Woodard’s testimony, it would not have been a
leap to have concluded that Boothe, at the very least, instructed Moss on where
to bench. Such a conclusion would also indicate that the two discussed more
than Moss’ slow progress.

However,
we lack the testimony of Mr. Moss, who could have explained the circumstances
leading to the accident that claimed his life. We also lack conclusive evidence
that might explain why such an experienced dozer operator would apparently
stray off course in a dangerous area of the mine. In view of the judge’s
finding that the Secretary’s theory is “speculative”, and without substantial
record evidence to support the two most plausible scenarios, I am constrained
to stand with the majority’s determination that the area in question was not an
active working area and, therefore, that no on-shift examination was required
of that area.

Adequate Markings

I am
not persuaded that the gas line beyond the Low Gap area was adequately marked.
As set forth by the majority opinion, a hazardous condition exists when
markings fail to sufficiently indicate a gas line’s location in an “active
working area.” Slip op. at 3. Therefore, compliance with section 77.1713 here
required that the on-shift examiner, Vira, determine whether the pipeline was
adequately marked in the “active working area,” and if not, to make a notation
and take corrective action. See Slip op. at 3.

Although
the judge found that the gas line was marked, at a minimum, by a mowed or muddy
right-of-way edged by trees, 32 FMSHRC at 137, the Commission majority
interpreted it as a finding that the gas line was “adequately” marked, and
concluded that it applied to the entire gas line on mine property. Slip op. at

6. I not only question the judge’s finding, but the majority’s application of
   it to the pipeline.

Photographs
of the accident site clearly show an absence of trees in the area where the
dozer was found. Gov. Exs. 4-1, 4-3. They also show the dozer sitting just
outside of the right-of-way, which indicates that the gas line did not actually
run within the right-of-way at all times, as generally believed by mine
personnel. Id; 32 FMSHRC at 142; Tr. 175. There is also no evidence that
there were markers in the immediate area where the accident occurred. Slip op.
at 6; Tr. 180-81; Gov. Ex. 4-3. In fact, the closest carsonite marker was 250
to 300 feet away, and the orange flags that were placed in the Low Gap area
were not visible from the accident site.  Tr. 85, 127, 182-83. In addition, the
markers were located on the opposite side of the right-of-way from where Moss
was operating the dozer. Tr. 183, 189; Gov. Exs. 4-28, 4-29. Boothe even
admitted that beyond the Low Gap area, the exact location of the gas line was
unknown. Tr. 386.

Perhaps
the strongest indication that the markings may have been inadequate comes from
the testimonial evidence that Moss was unclear about the location of the gas
line. As we know, Vira denied that Moss ever expressed concern or asked about
the gas line’s location. Tr. 768-69. He testified that Moss only asked how far
to stay away from the gas line, and that he, Vira, told him to keep a distance
of 100 feet.2 Tr. 768.
However, according to Smith, Moss told him that he was not sure of the gas
line’s location when they were driving to work together on the day of the
accident. Tr. 199-200. At around 9 a.m. that morning, Smith overheard Moss tell
Vira over the CB radio that he “was concerned he might be getting too close to
the gas line.” Tr. 207-09. Similarly, Elmer Bishop, a foreman for East
Cumberland, the contractor hired by Black Castle to cut and clear trees,
testified that Moss called Vira that morning and “hollered at [Vira] and told
him he didn’t know where the gas line was at, or he didn’t have no idea where
it was at.” Tr. 291-92, 296. Furthermore, Lonnie Wood, a survey lineman for
Black Castle, stated that Moss asked him twice on the day of the accident about
the location of the gas line.3 Tr. 573-74.

Although
Vira’s instruction to stay 100 feet away from the gas line was corroborated by
Smith and Woodard, his description of what Moss initially expressed to him
(i.e., “how far he needed to stay away from the gas line”, Tr. 177, 768) was
not. See Tr. 209, 234. In fact, Smith’s and Bishop’s testimony
demonstrate that, contrary to Vira’s account, Moss expressed confusion to Vira
as to the location of the gas line. Id. Nonetheless, relying heavily on
Vira’s testimony, the judge found that Moss gave no indication to management
that additional markings were necessary.4 32 FMSHRC at 141. He construed Smith’s testimony as
reconcilable with Vira’s, and discredited the testimony of Bishop. 32 FMSHRC at
141.

Additionally,
it does not follow that, because everyone knew the general location of the gas
line, markers identifying its specific location were unnecessary.5 Even though Black
Castle had mined coal within the vicinity of the gas line for years, it was
well-known by management that mining in the East of Stollings Amendment Area, a
virgin area of the mine, would bring miners in closer, more dangerous proximity
to the gas line. This posed a hazard that required Black Castle to implement
additional safety measures. At a minimum, the operator was required to ensure
that the entire gas line was clearly marked before allowing miners to work in
that area, especially because heavy equipment was involved. Moreover, ordinary
human carelessness should not be ignored, which is all the more reason to
clearly delineate the gas line.6
When a condition is so hazardous as to likely result in death, identification
of that hazard must be indisputably clear.

As
stated by my colleagues, “it might be possible to infer . . . that the pipeline
was not adequately marked.” Slip op. at 7. I think that such an inference makes
sense from the evidence in the record. However, the judge saw it differently.

The Test of Substantial Evidence

Under
the Mine Act, the Commission must affirm the factual findings of the judge if
they are supported by substantial evidence. Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support [the
judge’s] conclusion.” Rochester & Pittsburgh Coal Co, 11 FMSHRC
2159, 2163 (Nov. 1989) (citing Consolidation Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). Moreover, the Commission has recognized that a judge’s
credibility determinations are entitled to great weight and may not be
overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537,
1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec.
1981).

The
judge overwhelmingly credited the self-serving testimony of Vira and Boothe –
both management representatives of Black Castle, and, in the case of Vira, the
subject of the section 110(c) proceeding which is part of this case. On the
contrary, he discredited the testimony of Bishop, and did not make what would
have been reasonable inferences from the testimony of Smith and Woodard.
However, the judge’s credibility determinations and the inferences he drew were
not so unreasonable as to be reversible. The weight of the evidence supporting
the Secretary’s position detracts from the evidence supporting the judge’s
factual determinations, but not to the degree as to render them unsupported by
“substantial evidence” within the scope of Rochester & Pittsburgh Coal.
If the judge had made different credibility determinations, we could just as
easily affirm the citations issued to Black Castle and Vira. However, under our
substantial evidence standard of review, I must, with reluctance, stand with my
colleagues in affirming the judge’s decision in result.

/s/
Robert F. Cohen, Jr.                

Robert
F. Cohen, Jr., Commissioner

Distribution

Carol Ann Marunich, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite
310

Morgantown, WV 26501

Robert Stonestreet, Esq.

Dinsmore & Shohl, LLP

P.O. Box 11887

Charleston, WV 25339

Morgantown, WV 26501

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA  22209-2296

Melanie Garris

Office of Civil Penalty
Compliance

MSHA

U.S. Dept. Of Labor                                                  

1100 Wilson Blvd., 25th
Floor

Arlington, VA 22209-3939

Administrative Law Judge T.
Todd Hodgdon (retired)

Federal Mine Safety &
Health Review Commission

Office of Administrative Law
Judges

1331 Pennsylvania Avenue, N.
W., Suite 520N

Washington, D.C. 20004

1 30
C.F.R. § 77.1713(a) provides:

At least once during each
working shift, or more often if necessary for safety, each active working area
and each active surface installation shall be examined by a certified person
designated by the operator to conduct such examinations for hazardous
conditions and any hazardous conditions noted during such examinations shall be
reported to the operator and shall be corrected by the operator.

2
Section 110(c) of the Mine Act, 30 U.S.C. § 820(c), provides that:

Whenever a corporate operator
violates a mandatory health or safety standard or knowingly violates or fails
or refuses to comply with any order issued under this Act or any order
incorporated in a final decision issues under this Act, except an order
incorporated in a decision issued under subsection (a) or section 105(c), any
director, officer, or agent of such corporation who knowingly authorized,
ordered, or carried out such violation, failure, or refusal shall be subject to
the same civil penalties, fines, and imprisonment that may be imposed upon a
person under subsections (a) and (d).

3 Vira performed a preshift examination at
approximately 4:30 am on February 1. Tr. 161. He performed a second examination
around 8:30 am that morning. Id. The regulation only required the
on-shift examination, but state regulations required a preshift examination, so
Vira conducted both. 32 FMSHRC at 136 n.2.

4 The Judge nevertheless assumed, for purposes of his
decision, that the accident location was part of the “active working area.” 32
FMSHRC at 136. He concluded, however, that the Secretary failed to prove the
existence of a hazardous condition. Id. at 137.

5 A Judge’s credibility determinations are entitled to
great weight and may not be overturned lightly. Consolidation Coal Co.,
35 FMSHRC at 2329 (citations omitted).

6
Besides a mandatory once a-shift examination, section 77.1713(a) also requires
that inspections be conducted “more often if necessary for safety.” 30 C.F.R. §
77.1713(a). Therefore, we have carefully considered the Secretary’s argument
that the Judge shifted the responsibility for preventing unsafe conditions from
the operator to the miner. After finding that the on-shift examination was
adequate because there was no need to report a hazardous condition that
everyone was aware of and that was adequately marked, the Judge specifically
considered whether Moss put Black Castle on notice of a need for another
examination. He considered Moss’ conversations with Marcum, Boothe, Smith,
Vira, and surveyors who were marking the gas line in the Judy Low Gap area. 32
FMSHRC at 137-44. The Judge determined that “Moss did not give Vira or Black Castle
management any reason to believe that the gas line needed to be marked better
than it was.” Id. at 141. He emphasized that “up until the time of the
accident, neither Moss nor anyone else had given Vira or any other Black Castle
person in authority an indication that marking of the actual gas line was
necessary.” Id. at 143. He concluded, therefore, that management had not
been made aware of any reason to conduct an additional on-shift examination. Id.
at 144. That decision is supported by substantial evidence.

The
evidence supporting the Judge’s determination that the pipeline was adequately
marked also supports this additional finding. In particular, we note that the
only assertion that Moss’ concerns were expressed to mine management was the
testimony regarding Moss’ statements to Vira. This testimony, however, was
contradicted by Vira, and the Judge made a credibility determination that Moss
had expressed no such concerns to him. 32 FMSHRC at 141.

1 The
reason Moss was constructing a bench at the Clarion coal seam outcrop was to
enable Black Castle to bring in drilling equipment to blast away the part of
the mountain overlying the Stockton coal seam (i.e., the “overburden”) so as to
mine the coal in the Stockton seam. The blasting away of the overburden would
create an 80-foot highwall. Tr. 139-41.

2 The
judge found that “if Moss had followed Vira’s guidance and stayed 100 feet from
the right-of way, this unfortunate accident would not have happened.” 32 FMSHRC
at 142. First, I reiterate that Moss was known to follow directions. Second, it
was impossible for Moss to follow this guidance because from the start, his
path of operation brought him within 75 feet of the gas line, a situation which
Vira as Mine Superintendent should have known. Tr. 735; Resp. Ex. 3.

3 The
judge concluded that Moss “really did not express concern or ask many
questions.” 32 FMSHRC at 142. He
diminished Moss’ concerns by characterizing his statement to Smith as
a “remark” rather than “an expression of serious concern,” and his questions to
Wood as expressions of “curiosity.” 32 FMSHRC at 138, 140-42. In light of the
record in its entirety, I see no reason to doubt the seriousness or urgency of
Moss’ concern.

4 I do
not agree that Moss should have done more to notify Black Castle that
additional markers were necessary. See 32 FMSHRC at 141. Even if Moss
had said nothing whatsoever, it was Black Castle’s responsibility to ensure
that the gas line was marked in such a way that any miner working in its
immediate vicinity could safely avoid contact with it. As the Commission has
stated, quoting the Congressional declaration in section 2(e) of the Mine Act,
“the operators of . . . mines with the assistance of the miners have the
primary responsibility to prevent the existence of [unsafe and unhealthful]
conditions and practices in such mines. 30 U.S.C. § 801(e).” Consolidation
Coal Co., 16 FMSHRC 201, 205 (Feb. 1994).

5 On
some level management knew this because Marcum made the minimal effort of
surveying the gas line and identifying it with orange flags in the Low Gap
area. But even this was insufficient, because Moss’ path of operation required
that he bench the length of the Clarion seam, which moved beyond the Low Gap
and through the greater East of Stollings Area. As such, Black Castle should
have had the gas line surveyed and marked in the entire area, not just the Low
Gap.

6 The
Commission interprets mandatory safety standards to take into consideration
“ordinary human carelessness.” Thompson Bros. Coal Co., 6 FMSHRC 2094,
2097 (Sept. 1984). In Thompson, the Commission held that the guarding
standard must be interpreted to consider whether there is a “reasonable
possibility of contact and injury, including contact stemming from inadvertent
stumbling or falling, momentary inattention, or ordinary human carelessness.” Id.
An objective interpretation of such a standard cannot “ignore[] the inherent
vagaries of human behavior. Even a skilled employee may suffer a lapse of
attentiveness, either from fatigue or environmental distractions. . . .” Great
Western Electric Co., 5 FMSHRC 840, 842 (May 1983).