Secretary of Labor v. Brody Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

The Commission remanded findings for seven section 104(d)(2) orders issued at Brody Mine No. 1 for coal accumulations, ventilation-plan failures, an inadequate preshift examination, a flooded escapeway, and an unguarded shuttle-car opening. Judge L. Zane Gill reconsidered S&S, unwarrantable failure, gravity, and negligence under the Commission's instructions. He found all seven violations unwarrantable failures, treated three as S&S and four as non-S&S, and assigned negligence ranging from moderate to reckless disregard. The Judge retained or made several reductions to gravity and negligence, while affirming the flooded-escapeway and missing-guard orders as written. He assessed penalties totaling $85,000, compared with the Secretary's proposed $218,354 and the original ALJ total of $32,500.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.360(b)(3), 75.370(a)(1), 75.380(d)(1), 75.400, and 75.1722(a)
• Outcome: Seven orders were affirmed or modified on remand, all remained unwarrantable failures, and total penalties were set at $85,000.
• Key point: On remand, mitigating evidence may reduce gravity or negligence without eliminating an unwarrantable-failure finding supported by the full circumstances.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY

AND HEALTH REVIEW COMMISSION

OFFICE OF

ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA

AVE., N.W., SUITE 520N

WASHINGTON, DC

20004-1710

TELEPHONE:

202-434-9958 / FAX: 202-434-9949

SECRETARY

OF LABOR

MINE

SAFETY AND HEALTH   

ADMINISTRATION

(MSHA),

Petitioner,

v.

BRODY

MINING, LLC,

Respondent.

CIVIL

PENALTY PROCEEDINGS

Docket

No. WEVA 2009-1000

A.C.

No. 46-09086-178774-01

Docket

No. WEVA 2009-1306

A.C.

No. 46-09086-181457-01

Mine:

Brody Mine No. 1

DECISION ON

REMAND

Appearances:               J.

Matthew McCracken, Esq., and Amos H. Presler, Esq., Office of the Solicitor, U.S.

Department of Labor, Arlington, Virginia, for Petitioner;

Jason M. Nutzman, Esq., Dinsmore &

Shohl, LLP, Charleston, West Virginia, for Respondent.

Before:                                    Judge

L. Zane Gill

This case is before me on remand from

the Commission. 37 FMSHRC 1687 (Aug. 2015). On May 23, 2011, I issued a

decision after hearing for the eight section 104(d)(2) orders contained in

these two dockets. 33 FMSHRC 1329 (May 2011) (ALJ). On appeal, the Commission remanded

determinations made for seven of these orders. [1]

37 FMSHRC at 1707.

I. PROCEDURAL

BACKGROUND AND ISSUES ON REMAND

The seven orders at issue were written

by MSHA Inspectors Charles H. Ward and James Jackson on five different dates between

January 15 and March 3, 2009, at Brody Mine No. 1. A hearing was held on December

16 and 17, 2010, in Beckley, West Virginia. In my May 23, 2011 decision, I found

a violation in each instance and made various findings and determinations. On

August 25, 2015, the Commission remanded one or more determinations for each of

the seven orders. Specifically, the Commission concluded that I erred in

finding certain facts mitigating and I failed to consider certain arguments and

facts in my analyses.

Regarding the tail piece accumulations

violation, I determined it was not significant and substantial (“S&S”) [2]

or an unwarrantable failure [3]

and concluded that moderate negligence was appropriate. The Commission remanded

both the S&S and unwarrantable determinations. With regard to the two

ventilation related violations, I determined that neither was unwarrantable and

reduced the level of negligence assessed. For the inadequate pre-shift

examination violation, I determined it was not unwarrantable and reduced the

gravity assessed. The Commission remanded the unwarrantable determinations in

these three orders, along with the gravity determination for the pre-shift examination

violation and the negligence determinations for the other two. The remaining

three violations I determined were unwarrantable and concluded moderate

negligence was appropriate for each. The Commission remanded the negligence determinations

for all three. The Secretary [4]

proposed a total penalty of $218,354 for the seven orders. I concluded that a total

penalty amount of $32,500 was appropriate. On appeal, the Commission remanded

penalty determinations as necessary.

Consequently, the issues before me on

remand are: (1) whether the tail piece accumulations violation in Order No. 8079179

was S&S and unwarrantable; (2) whether the ventilation plan violations in Order

Nos. 8075863 and 8075874 were unwarrantable and the appropriate level of negligence

of the operator; (3) whether the pre-shift examination violation in Order No.

8075864 was unwarrantable and the appropriate gravity; (4) what are the appropriate

degrees of negligence for the escapeway (Order No. 8079178), missing guard

plate (Order No. 8075906), and feeder accumulations violations (Order No.

8079224); and, (5) whether the proposed penalty assessments are appropriate where

my earlier determinations are modified.

II. PRINCIPLES

OF LAW

A.        Significant and Substantial

A violation is S&S “if, based on the

particular facts surrounding that violation, there exists a reasonable likelihood

that the hazard contributed to will result in an injury or illness of a

reasonably serious nature.” Cement Div., Nat’l Gypsum Co. , 3 FMSHRC 822,

825 (Apr. 1981). To establish an S&S violation, the Secretary 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.” Mathies Coal Co. , 6 FMSHRC 1, 3–4 (Jan.

1984) (footnote omitted);  see also Buck Creek Coal, Inc. v. Fed.

Mine Safety & Health Admin. , 52 F.3d 133, 135–36 (7th Cir.

1995) (affirming ALJ’s application of the  Mathies  criteria);  Austin

Power, Inc. v. Sec’y of Labor , 861 F.2d 99, 103–04 (5th Cir.

1988) (approving the  Mathies  criteria).

The Commission has recently explained

that in analyzing the second  Mathies  element, Commission

Judges must determine “whether, based upon the particular facts surrounding the

violation, there exists a reasonable likelihood of the occurrence of the hazard

against which the mandatory safety standard is directed.” Newtown Energy,

Inc. , 38 FMSHRC 2033, 2038 (Aug. 2016). In evaluating the third  Mathies  element,

the Commission assumes the hazard identified in the second  Mathies  element

has been realized and determines whether that hazard is reasonably likely to

cause injury. Id.  at 2045 (citing  Knox Creek Coal Corp. v.

Sec’y of Labor , 811 F.3d 148, 161–62 (4th Cir. 2016);  Peabody

Midwest Mining, LLC , 762 F.3d 611, 616 (7th Cir. 2014);  Buck Creek

Coal , 52 F.3d at 135). The Commission has further found that “the absence

of an injury-producing event when a cited practice has occurred does not

preclude a determination of S&S.” Musser Eng’g, Inc. , 32 FMSHRC

1257, 1280–81 (Oct. 2010) (citing  Elk Run Coal Co. , 27 FMSHRC 899,

906 (Dec. 2005);  Blue Bayou Sand & Gravel, Inc. , 18 FMSHRC 853,

857 (June 1996)). Finally, the Commission has specified that evaluation of the

reasonable likelihood of injury should be made assuming continued normal mining

operations. U.S. Steel Mining Co. , 7 FMSHRC 1125, 1130 (Aug. 1985)

(quoting  U.S. Steel Mining Co. , 6 FMSHRC 1573, 1574 (July 1984)).

B.        Negligence

Negligence

is not defined in the Mine Act. The Commission determines negligence under a traditional

analysis rather than relying on the Secretary’s regulations at 30 C.F.R. §   100.3(d). Mach Mining, LLC v. Sec’y of

Labor , 809 F.3d 1259, 1264 (D.C. Cir. 2016) (quoting  Brody Mining , 37 FMSHRC at 1702). Each mandatory regulation carries a

requisite duty of care. Id. In making a negligence  determination, the Commission takes into account

the relevant facts, the protective purpose of the regulation, and what actions

would be taken by a reasonably prudent person familiar with the mining

industry. Id. In evaluating these factors, the  negligence  determination is based on the “totality of the

circumstances holistically” and may include other mitigating circumstances

unique to the violation. Id.  (quoting  Brody Mining ,

37 FMSHRC at 1703). Because Commission Judges

are not bound by the negligence definitions in Part 100, a Judge may find “high

negligence” in spite of mitigating circumstances or may find “moderate” negligence

without identifying mitigating circumstances. Id. In this respect, the

Commission has recognized that the gravamen of high negligence is that it

“suggests an aggravated lack of care that is more than ordinary negligence.” Topper

Coal Co. , 20 FMSHRC 344, 350 (Apr. 1998) (citation omitted).

C.        Unwarrantable Failure

The Commission has held

that an unwarrantable  failure

is aggravated conduct constituting more than ordinary negligence. Emery

Mining Corp. , 9 FMSHRC 1997, 2004 (Dec. 1987). It is characterized by “indifference,”

a “serious lack of reasonable care,” or “reckless disregard.” Id.  at

2003 – 04;  see also Buck Creek

Coal , 52 F.3d at 136 (approving the Commission’s  unwarrantable  failure test). Whether conduct is “aggravated” in the context of  unwarrantable  failure is determined by looking at all the facts

and circumstances of a case to see if aggravating or mitigating factors exist. IO

Coal Co. , 31 FMSHRC 1346, 1350 – 51 (Dec.

2009). The Commission has identified several such factors, including: the

length of time a violation has existed, the extent of the violative condition,

whether the operator has been placed on notice that greater efforts are

necessary for compliance, the operator’s efforts in abating the violative

condition, whether the violation was obvious, whether the violation posed a

high degree of danger, and the operator’s knowledge of the existence of the

violation. Id. All

relevant facts and circumstances of each case must be examined to determine

whether an actor’s conduct is aggravated or if mitigating circumstances exist. Consolidation

Coal Co. , 22 FMSHRC 340, 353 (Mar. 2000).

III. FURTHER

FINDINGS OF FACT, ANALYSIS, AND

CONCLUSIONS OF

LAW

Brody Mine No. 1 is located in Boone

County, West Virginia. At the time the orders were issued, it had nine working

faces and extracted 2,250,965 tons of coal per year. (Tr.308:15–17; Pet., Ex.

A) The mine is classified as “gassy,” as it emits approximately 1.5 million

cubic feet of methane per day. (Tr.28:20–29:10) Gassy mines are inherently dangerous

due to the higher risk of an explosion from rapid methane build up. (Tr.34:5–15,

96:16–97:6) The Mine Act requires that MSHA conduct spot inspections at least

every five working days at irregular intervals for mines liberating more than 1

million cubic feet of methane. 30 U.S.C. § 813(i).

A.

Order No. 8079179 – Tail Piece Accumulations Violation

Inspector

Jackson issued Order No. 8079179 on January 22, 2009, for a violation of 30 C.F.R.

§ 75.400, which provides that “[c]oal dust [. . .] shall be cleaned up and

not be permitted to accumulate in active workings, or on diesel-powered and

electric equipment therein.” He estimated the accumulations to be 31 feet long,

4 feet wide, and 6 to 17 inches deep. (Ex. S–10) They were located on the

offside [5]

of a belt line tail piece, in contact with the belt and tail piece rollers. Id.

The Secretary designated the violation

as S&S and an unwarrantable failure, and alleged that the operator demonstrated

reckless disregard. (Ex. S–10) She proposed a penalty of $70,000. I held that

the violation was not S&S based on the presence of redundant fire safety

measures. 33 FMSHRC at 1356–57. I held it was not an unwarrantable failure

based on finding that the coal spillage had not accumulated in the hours

between the pre-shift exam and MSHA inspection. Id. at 1354–55. I concluded

that the operator demonstrated only moderate negligence because I found the wetness

of the mine to be mitigating and did not credit the inspector’s testimony regarding

the accumulations drying out on the roller. Id. at 1355. On appeal, the

Commission faulted my decision for failing to clearly and consistently explain my

findings (1) for the second Mathies step of the S&S analysis; (2) on

whether rock dust was present on the accumulations; (3) on the duration of the violation;

and, (4) on the operator’s history of accumulations violations. 37 FMSHRC at

1690–94. The Commission also faulted the decision for failing to consider or

note all relevant factors—including danger, extent, knowledge, and obviousness—and

for failing to discuss certain evidence—including the notation in the pre-shift

exam that the tailpiece needed spot cleaning. Id. at 1691–94. The

Commission further held that I erred by finding that redundant safety measures

mitigated the likelihood of an injury in my S&S determination. Id. at

1691. The Commission therefore remanded to me the S&S and unwarrantable

determinations. [6]

1. Further Findings

of Fact

Inspector Jackson described the accumulations

as compacted, dry, and in contact with the front and rear rollers of the belt. (Ex.

S–10; Tr.119:2–15) He also noted that the coal at the front roller had turned

gray to white in color, indicating significant heat that could lead to a fire,

despite the wet conditions in that area of the mine. (Tr.119:16–120:15) Glenn

Fields, superintendent at Brody, suggested it was possible that rock dust could

account for the white color of the coal accumulations at the roller. [7]

(Tr.210:4–10) However, Fields also acknowledged that Brody avoids spreading rock

dust onto mined coal and conveyor belts. (Tr.219:7–21) Furthermore, Jackson

testified that the rest of the coal accumulations were black, indicating they

were untouched by rock dusting. (Tr.142:19–24) Upon re-examination of the record,

I credit Jackson’s testimony that heat from the roller accounted for the lighter

color of the coal accumulation contacting it. (Tr.119:2–120:15) Though Jackson

did not touch the accumulations to confirm they were dry and hot, I credit his

testimony over the alternative Brody presented—that miners accidentally spread

rock dust only at the exact location where the belt roller contacts the

accumulations. ( See Tr.142:19–24) On that basis, I further find that

there was no rock dust on the accumulations to mitigate the danger of a fire.

2. Significant and

Substantial

I previously found a

violation of 30

C.F.R. § 75.400, satisfying t he first Mathies element. 33 FMSHRC at 1354. The

second Mathies element requires the Secretary to show that the violation

created a reasonable likelihood that the hazard section 75.400 aims to prevent

would occur. Section 75.400 mandates that an operator prevent coal dust and

other combustible materials from accumulating in active areas of the mine. Its

purpose is to prevent the specific hazard of an explosion or an ignition, causing

a mine fire. Old Ben Coal Co. , 1 FMSHRC 1954, 1956–57 (Dec. 1979) (noting

that Congress included standards in the Mine Act aimed at eliminating ignition

and fuel sources for explosions and fires when discussing 30 C.F.R. § 75.400)

Though this area of the mine was very wet, the coal accumulations at issue were

in contact with a roller and were drying out due to friction. (Tr.119:2–15) I

previously noted that there is “ an articulable and

credible danger that even wet coal accumulations can be heated by belt friction

to the point of ignition.” 33 FMSHRC at 1356. I also previously credited

Jackson’s testimony that the roller could act as an ignition source. (Tr.119:19–120:11)

Furthermore, I concluded above that the white color of the coal accumulations,

where they contacted the roller, was not due to rock dust but from the coal heating

up and drying out.

Brody suggests using Cumberland Coal ,

an ALJ case, as a guiding precedent, but that case is not controlling

and the circumstances at issue here are markedly different. Cumberland Coal

Res., LP , 31 FMSHRC 137 (Jan. 2009) (ALJ). The accumulations in that case were

widespread but were only one-half to four inches deep and were not near the

belt rollers, nor was there a likely ignition source present. Id. at

144–52. I also reject Brody’s argument that the temporary absence of methane

provides any significant mitigation against the likelihood of a fire. I note

that the likelihood of a hazard occurring is analyzed assuming continued normal

mining operations. U.S. Steel Mining Co. ,   6 FMSHRC at 1574. I

therefore find it reasonably likely that, under continued normal mining

operations, friction from the belt roller would ignite the dried out coal

accumulations, starting a fire.

With regard to the third Mathies

element, the Secretary must demonstrate a reasonable likelihood that the hazard

contributed to will result in an injury. As noted by the Commission, the

likelihood of injury is not mitigated by redundant safety measures. Buck

Creek Coal , 52 F.3d at 136. A belt fire would generate significant smoke, requiring

evacuation of the mine and necessitating firefighting activities by miners. (Tr.120:12–15)

Thus, the consequences of a fire pose additional significant risks of injury to

miners. Discounting the safety measures in place, I find it reasonably likely

that a belt fire would result in an injury. Finally, under the fourth Mathies

element, there must be a reasonable likelihood that the resulting injury will

be of a reasonably serious nature. The most likely resulting injuries would be

smoke inhalation or asphyxiation, which are reasonably serious injuries and would

minimally result in lost workdays or restricted duty. See, e.g., Knox Creek Coal Corp. , 36 FMSHRC 1128, 1140–41 (May 2014) (affirming

the ALJ’s finding that smoke inhalation or asphyxiation constitute a serious

injury)

The Secretary has satisfied all four

elements of the Mathies test. I hold that Order No. 8079179 was

appropriately designated as S&S. For the same reasons, I conclude the

violation was reasonably likely to result in lost workdays or restricted duty

for eight miners.

3. Unwarrantable

Failure

An unwarrantable  failure is

aggravated conduct constituting more than ordinary negligence. Emery Mining

Corp. , 9 FMSHRC at 2004. Here, the Secretary did not appeal, and the

Commission did not review, the determination that Brody demonstrated only

moderate negligence. 37 FMSHRC at 1692 n.7. The D.C.

Circuit Court has suggested that a moderate negligence determination

“does not foreclose a finding of an ‘unwarrantable

failure’” when that conclusion is based upon MSHA’s section 100.3(d)

definitions of negligence . Excel

Mining, LLC v. Dep’t of Labor , 497 Fed. Appx. 78, 79–80 (D.C.

Cir. 2013).

In my original decision, I cited 30 C.F.R. § 100.3 extensively and concluded

that, based upon those definitions, “[a] finding of high negligence requires a

finding of no mitigating circumstances.” 33 FMSHRC at 1355. On appeal, the

Commission has clarified that under the Mine Act, a traditional negligence analysis

is required that examines the requisite duty of care imposed by a standard and

reaches a conclusion based on the totality of circumstances holistically. 37

FMSHRC at 1701–03.

In my decision, I reached

the conclusion of moderate negligence based upon the wetness of the mine and by

discounting the inspector’s testimony as to whether the accumulations in

contact with the roller were white from drying out or due to rock dust. On

re-examination of the evidence, I credited the inspector’s description of the

accumulations as drying out due to the heat caused by the friction of the belt

roller and concluded there was no rock dust present. Though this area of the

mine was very wet, potentially reducing the effect of a fire, the wetness does

not significantly reduce Brody’s required standard of care when complying with MSHA

safety standards. If the issue were before me now, under a traditional

negligence analysis, I would conclude that Brody’s negligence is toward the

low-end of “high negligence.” However, as the negligence issue is not before

me, I will proceed in light of the D.C. Circuit Court’s suggestion that an

unwarrantable failure determination is not precluded by moderate negligence. An

unwarrantable failure analysis must examine all relevant facts and

circumstances and consider all of the Commission’s unwarrantable factors. See

discussion supra Section II.C.

The degree of danger posed by a

violation is determined by an examination of the relevant facts and

circumstances. I concluded above that the violation was S&S and reasonably

likely to result in lost workdays or restricted duty. Brody alleges that this

was a very wet area of the mine and the coal accumulations were “completely saturated

[and] muddy.” (Tr.200:22–201:8, 210:9–10) In contrast, Jackson described Section

No. 3, where the accumulations violation occurred, as “fairly wet.” (Tr.123:2) However,

he also cited Brody for flooding 175 feet of the Section No. 3 primary escapeway

with 12–20 inches of water. (Tr.122:20–23, 132:3–6, 138:4–15) Nevertheless, the

coal accumulations were drying out from contact with the roller and turning

white, indicating heat was being generated, and “even wet coal accumulations

can be heated by belt friction to the point of ignition.” (Tr.119:2–120:11); 33 FMSHRC

at 1356. I therefore find that the violation posed a high degree of danger and that

danger is an aggravating factor.

In terms of the duration, the Secretary

alleges that the accumulations were present for more than one shift. Inspector Jackson

testified that, based on the amount of coal accumulations and the fact only 30

feet of coal had been mined up to that point in the shift, there would have

been “some accumulations” present when the shift started. (Tr.121:10–122:1) Indeed,

the pre-shift exam conducted between 4:00 a.m. and 7:00 a.m. noted that the

tail piece needed to be “spot cleaned.” (Ex. R–4, at 20; Tr.206:7–12) While Fields

dismissed this notation as not indicative of a hazard, on remand I credit Jackson’s

testimony and infer from this record that some small quantity of coal accumulations

was present for the pre-shift exam. (Tr.121:22–122:1, 206:7–18) I therefore find

that the violation existed for at least seven hours based on Jackson issuing

the order at 11:30 a.m., approximately seven hours after the pre-shift examination

began. (Exs. S–10, R–4) I find the length of time the violation existed aggravating.

See, e.g. , Buck Creek Coal , 52 F.3d at 136 (finding unwarrantable

failure where cited accumulation must have been present since at least previous

shift); Old Ben Coal Co. , 1 FMSHRC at 1959 (holding unwarrantable

failure where accumulation had existed for less than one shift).

Regarding

the extent element, the accumulations were 31 feet long, 4 feet wide, and 6 to

17 inches deep, and located alongside the belt, and in contact with the belt

rollers. (Ex. S–10; Tr.118:7–119:15) I therefore find the extent of the

violation to be an aggravating factor. Due to the extent of the accumulations,

they should have been obvious to an examiner even though they may not have been

obvious to miners passing by as they were on the off-side of the belt. (Tr.207:18–208:4;

see Tr.139:13–15) Furthermore, the pre-shift exam noted that the

tailpiece was dirty, suggesting the examiner saw the accumulations. I therefore

find that obviousness was an aggravating factor. I find further that the

pre-shift exam provided Brody with a sufficient basis to know of the violation

at 7:00 a.m. Its knowledge was an aggravating factor.

Brody

was cited 29 times in the previous four months for violations of 30 C.F.R.

§ 75.400. (Tr.122:2–9; Ex. S–10) In accord with my previous determination under

Order No. 8079224, I reiterate that Brody was on notice that greater efforts

were required for compliance, as Brody had shown that it was “generally indifferent”

towards accumulations violations. 33 FMSHRC at 1385. I therefore find notice to

be an aggravating factor and accord it significant weight in my determination. Although

Brody had noted the dirty condition of the tail piece in its pre-shift report,

it had not begun to address it. I conclude that the lack of abatement was an aggravating

factor.

On remand, I find Brody’s notice the most

significant aggravating factor. Due to the facts and circumstances of this

violation, I find the danger, duration, obviousness, knowledge, extent, and

abatement factors to be aggravating but accord them less weight in my

determination. After weighing all the evidence as a whole, I conclude that the

violation was an unwarrantable failure.

B.

Order No. 8075863 – Flypad Ventilation Violation

Inspector

Ward issued Order No. 8075863 on January 15, 2009, for a violation of 30 C.F.R.

§ 75.370(a)(1), which provides, in part, that “[t]he operator shall

develop and follow a ventilation plan approved by the district manager.” Ward observed

that the flypads [8]

in the last crosscut before the working faces were held up horizontally by the

air current. He measured the air flow at 1,974 cubic feet per minute (“CFM”) at

the nearby No. 6 working face and 1,462 CFM at the nearby No. 5 working face. (Tr.27:1–8;

Ex. S–2) Brody’s ventilation plan required 3,000 CFM at both locations. ( Id. )

The Secretary designated the violation

as S&S and an unwarrantable failure, and alleged that the operator demonstrated

high negligence. (Ex. S–2) She proposed a penalty of $5,211. (Pet., Ex. A) Prior

to hearing, the Secretary stipulated that the violation was not S&S. (Tr.12:2–10)

I held that the violation was not an unwarrantable failure based on the absence

of methane at the face and the inspector’s focus on the airflow rather than the

methane present. 33 FMSHRC at 1338–39. I concluded that the operator showed only

moderate negligence based on the absence of methane. Id. at 1337. On

appeal, the Commission faulted my decision for failing to address certain evidence,

including the inspector’s meeting with mine management, the gassy status of the

mine, the prior ventilation plans, the Secretary’s stipulation that the

violation was not S&S, and the reduction in gravity, which was not

appealed. 37 FMSHRC at 1697–704. The Commission also faulted the decision

for failing to consider or note all relevant unwarrantable factors, including

duration and obviousness. Id. at 1697–700. It faulted the decision for

failing to clearly and consistently explain findings for duration and knowledge.

Id. at 1698–99. It also held that I erred by discounting the operator’s

history of prior violations and by finding the absence of methane mitigating in

my unwarrantable failure and negligence analyses. Id. at 1699–700. The

Commission therefore remanded to me the unwarrantable failure and negligence determinations.

1. Negligence

A negligence analysis under the Mine Act

involves an evaluation of the relevant facts in light of a regulation’s

requisite duty of care in order to reach a conclusion based on the totality of

circumstances. See Mach Mining ,

809 F.3d at 1264 . Here, 30

C.F.R. § 75.370(a)(1) requires the operator to adhere to its approved

ventilation plan. In particular, Brody’s plan required 3,000 CFM of air flow at

all idle working faces. (Tr.27:1–8) Importantly, this mine is classified as

“gassy,” as it emits 1.5 million cubic feet of methane per day. (Tr.28:20–29:10)

Compliance with the ventilation plan is critical in gassy mines to prevent the

buildup of methane, raising the standard of care expected of Brody. (Tr.34:5–15)

Brody therefore had a high standard of care to meet in adhering to its

ventilation plan.

Brody failed to meet the requirements of

its ventilation plan, falling short by roughly 50% at the No. 5 face and 33% at

the No. 6 face. (Tr.27:1–8; Ex. S–2) This violation would have been obvious to

anyone who saw the flypads blown up into a horizontal position, as their position

would suggest that the air flow to nearby faces was being short-circuited. (Tr.35:4–24,

42:24–43:6) Nevertheless, the condition was not reported in the pre-shift

examination conducted two hours prior to the MSHA inspection. (Tr.43:12–24, 69:3–11;

see Exs. R–2, S–4) Brody argues that the condition could have been

created by a passing scoop, sometime after the examination was finished but

before the MSHA inspection. (Tr.301:4–15, 313:18–314:6) However, properly

installed flypads should fall back into place after being pushed aside by machinery.

(Tr.73:6–16, 81:10–24; see Tr.315:1–13, 316:7–24) Furthermore, to abate

the violation and reinforce the flypads, one or two additional layers of

material had to be added to provide enough weight to control the air flow. (Tr.73:17–22,

316:7–10) Brody did not offer a credible explanation as to why such significant

measures were required to abate the violation. I conclude that the conditions claimed

by Ward were present, at a minimum, for the entire previous shift, which was idle

for maintenance. As the conditions were present for the pre-shift exam, Brody

should have known that the air flow to nearby faces was being short circuited,

violating its ventilation plan.

Brody argues that there were mitigating circumstances.

It first points to the lack of methane detected at the time of the inspection, which

the Commission held is irrelevant to a negligence analysis. 37 FMSHRC at 1703. Brody

next points to the lack of activity at the mine faces as a factor that mitigates

the level of danger present. However, because the previous shift still had

miners conducting maintenance tasks, and the miners on the shift after the

inspection were actively mining, any mitigation is minimal. Finally, Brody points

to the absence of any violations recorded by the pre-shift examiner as evidence

that this violation occurred after the exam and was therefore short-lived. However,

Inspector Ward concluded from this omission that the pre-shift exam was

inadequate, and cited Brody for it. Based on the previously discussed evidence that

the violation was present at the time of the pre-shift exam, I credit Ward on

this point.

Further elevating Brody’s negligence is its

failure to better supervise and train miners to report and abate ventilation violations

despite considerable prior notice that it was failing to abide by its ventilation

plan. See Consolidated Coal Co. , 35 FMSHRC 2326, 2345–46 (Aug.

2013) (finding the operator’s failure to properly train and supervise miners after

repeated ventilation plan violations, in a gassy mine, relevant to negligence).

Brody was cited 31 times for the same standard in the 10 weeks prior to the order,

and an explicit warning was given to mine management. (Tr.30:16–31:2, 32:3–19, 33:5–14)

Based on the high standard of care required for a gassy mine, the obviousness

of the violation, Brody’s implied knowledge, and its failure to better train

miners after extensive prior notice, I conclude that Brody demonstrated high

negligence.

2. Unwarrantable

Failure

Brody demonstrated high

negligence through its failure to abide by the requirements of its ventilation

plan. The Commission has “recognized that a finding of high negligence suggests

unwarrantable failure.” Eagle Energy, Inc. , 23 FMSHRC 829, 839 (Aug.

2001). As previously discussed, an unwarrantable failure analysis must examine

all relevant facts and circumstances and consider all of the Commission’s

unwarrantable factors. See discussion supra Section II.C.

The

Commission noted in its decision that “significant weight” should be placed on

a mine’s gassy status in determining the degree of danger posed by a violation.

37 FMSHRC at 1697. It further noted that an absence of methane at the time of

the inspection does not mitigate the danger posed by a gassy mine, as methane

can accumulate quickly. Id. As previously discussed, Brody Mine No. 1 is

a gassy mine. (Tr.28:20–29:10) I credit Inspector Ward’s testimony regarding the

potential dangers of a rapid buildup of methane under low airflow conditions

leading to an explosion. (Tr.34:5–15, 96:16–97:6) Thus, a violation of the

ventilation plan in a gassy mine suggests a higher level of danger.

Brody argued that the level of danger

was mitigated by several factors. First, Brody argues that the purpose of the

ventilation plan was to flush out methane, so its absence at working faces suggests a

properly functioning system. (Tr.76:20–77:14, 359:13–21) In support, Brody

points to Ward’s testimony that he would not cite the same

conditions under the new ventilation plan that was in place at the time of the hearing.

(Tr.85:15–86:13, 359:9–12) However, Brody’s ventilation plan in place at the

time of the order is controlling. There is insufficient evidence before me to evaluate

how an alternative airflow requirement that was adopted under potentially dissimilar

circumstances might reflect

on the

level of danger posed by the circumstances at issue. Though the 3,000

CFM air flow requirement was removed for idle working faces, other changes in

the plan may have compensated for that reduction.

Second, Brody suggests Consolidation

Coal , an ALJ case, as a guiding precedent. Consolidation Coal Co. ,

23 FMSHRC 270 (Mar. 2001) (ALJ). However, the case is not controlling. Furthermore,

in Consolidation Coal the air flow was 12% lower than was required by

the operator’s ventilation plan. Id. at 271. Here, by contrast, Brody’s

air flow was 33% and 50% lower than was required. Finally, Brody argues that

the lack of miners or equipment at the face is a mitigating factor. I find it somewhat

mitigating. I note that the Secretary conceded the S&S designation before

trial and did not appeal the gravity determination that the violation was

unlikely to result in lost workdays for five miners. Furthermore, though this

was a gassy mine, Brody has no history of methane ignitions. (Tr.102:16–103:5) Considering

all of the foregoing, I conclude the level of danger neither aggravating nor

mitigating.

I

next consider the obviousness and knowledge factors. The position of the

flypads made it obvious that the air flow to the working faces was being

short-circuited. ( See Tr.35:4–24, 81:14–24; Ex. S–2, at 4) Though Brody’s

safety foreman Blankenship argued that the flypads were not an “indication”

that the faces were not getting enough air, he acknowledged that the condition suggested

that “possibility.” (Tr.385:3–86:2) I conclude the violation was obvious to any

miner passing by and therefore its obviousness is an aggravating factor of

significant weight. Above, I found that the violation lasted for at least the

duration of the previous maintenance shift. I therefore conclude that time was

an aggravating factor and, due to the obviousness of the violation, accord it

significant weight. Furthermore, due to the obviousness of the violation, the length

of time it existed, the underlying improper setup of the flypads, and the

pre-shift exam, I concluded above that Brody should have known that the

violation existed. I find that Brody’s implied knowledge of the violation was an

aggravating factor and accord it significant weight as well.

The extent of the violation was evident

in a decrease in air flow of 33% at one face and 50% at another. (Tr.27:1–8; Ex.

S–2) I find that the extent of the violation was an aggravating factor based on

the significant deviations from Brody’s ventilation plan at two working faces for

at least one shift. Brody’s failure to abate the violation for an extended

period of time was an additional aggravating factor. Finally, Brody was cited

31 times for violations of the same standard in the ten weeks before this order

and Brody’s management had been issued an explicit warning by Inspector Ward. (Tr.30:16–31:2,

32:3–33:14) As the Commission noted on appeal, previous citations for a

violation do not need to involve identical circumstances to put an operator on

notice. IO Coal , 31 FMSHRC at 1353–54. I therefore find Brody’s notice to

be an aggravating factor and give it significant weight.

On remand, I find that the obviousness,

time, knowledge, and notice factors were all significant aggravating factors. Extent

and abatement are also aggravating factors that I accord moderate weight. As

noted above, I do not accord the danger factor any weight in my determination. After

weighing the evidence as a whole, I conclude that the violation of section 75.370(a)(1)

was an unwarrantable failure to comply with a mandatory safety standard.

C.

Order No. 8075864 – Pre-shift Examination Violation

Inspector Ward issued Order No. 8075864

on January 15, 2009, for a violation of 30 C.F.R. § 75.360(b)(3),

which requires that pre-shift examinations of working sections include the ventilation

controls. Based on the obvious condition of the flypads in Order No. 8075863

and Brody’s failure to record the violation in its pre-shift report, Ward

concluded that the pre-shift examination was inadequate. (Tr.41:18–43:24; see

Ex. S–4)

The Secretary designated the violation

as S&S and an unwarrantable failure, and alleged that the operator demonstrated

high negligence. (Ex. S–4) She proposed a penalty of $7,774. (Pet., Ex. A) Prior

to hearing, the Secretary stipulated that the violation was not S&S. (Tr.12:2–10)

Based on treating this violation as derivative of the flypad violation, I

concluded it was not an unwarrantable failure and was unlikely to result in an injury.

33 FMSHRC at 1344. I also concluded that the operator had demonstrated high

negligence based on the lack of any mitigation. Id. On appeal, the

Commission faulted my decision for basing the analyses of unwarrantable failure

and gravity solely on the associated flypad ventilation violation (Order No. 8075863).

37 FMSHRC at 1700. The Commission therefore remanded to me the unwarrantable failure

and gravity determinations.

1. Gravity

Inspector Ward noted that 14 miners worked

in the section and alleged that the violation was reasonably likely to cause an

injury resulting in lost workdays or restricted duty. (Ex. S–4, at 4) I held

that the violation was unlikely to result in an injury. On appeal, the

Commission remanded the issue of gravity due to my reliance upon the associated

flypad violation for the determination. The Commission held that “[t]he

seriousness of a pre-shift violation is evaluated apart from any seriousness of

any hazard that may have been detected by an adequate pre-shift examination.” 37

FMSHRC at 1700 (citing JWR Res. Inc. , 28 FMSHRC 579, 603–04 (Aug. 2006)).

Section 75.360(b)(3) requires pre-shift

examinations of working sections for ventilation, accumulations, maintenance,

and roof control violations, among others. 30 C.F.R. § 75.360(b). Here,

the inspector determined that the pre-shift examination missed an obvious

violation of Brody’s ventilation plan. He did not find any additional

violations. Importantly, the Secretary stipulated before hearing that the

violation was not S&S, suggesting the violation was unlikely to result in a

serious injury. I

therefore again conclude that the inadequate pre-shift exam was

unlikely

to cause injuries resulting in lost workdays or restricted duty for 14 miners.

2. Unwarrantable

Failure

I previously concluded that

Brody demonstrated high negligence by conducting an inadequate pre-shift

examination of its ventilation controls. 33 FMSHRC at 1343. The Commission has

“recognized that a finding of high negligence suggests unwarrantable failure.” Eagle

Energy , 23 FMSHRC at 839. As previously discussed, an unwarrantable

failure analysis must examine all relevant facts and circumstances and consider

all of the Commission’s unwarrantable factors. See discussion supra

Section II.C. On appeal, the Commission noted that the unwarrantable analysis for

this inadequate pre-shift exam violation is not derivative of, and must be considered

separately from, the associated flypad violation. 37 FMSHRC at 1700.

The

degree of danger posed by a violation depends on the facts and circumstances of

the violation. Here, the inspector has alleged that one violation was missed by

Brody’s examiner. Above, I concluded the violation was unlikely to result in

lost work days or restricted duty. In light of the foregoing, I conclude that

the violation did not pose a high degree of danger and was not aggravating.

The

obviousness of an inadequate examination can be established by the circumstances

of unreported violations. The short-circuiting of the air flow to working faces

was made obvious by the condition of the flypads. (Tr.42:24–43:6) The horizontal

position of the flypads should have alerted the examiner, and passing miners,

that the pre-shift examination of the area had been inadequate. I therefore determine

the obviousness of the violation to be an aggravating factor. Based on the

obviousness of the violation, the examiner should have known that his

examination was inadequate. As an agent of Brody, the examiner’s knowledge can

be imputed to Brody. Pocahontas Fuel Co. ,  8

IBMA 136, 146–48 (Sept. 1977),  aff'd ,   590 F.2d 95 (4th Cir. 1979)  (Coal Act case) (holding that the knowledge of a

pre-shift examiner was imputable to the mine operator) . Brody therefore should

have known of the inadequate pre-shift exam upon its completion. I conclude its

knowledge an aggravating factor.

Though

Brody argues it was not on notice with regard to examinations, it had been warned

that more effort was required in order to comply with its ventilation plan

requirements. (Tr.30:16–31:2, 32:3–13, 33:5–14) As the Commission noted, this warning

should have increased Brody’s “overall vigilance” with respect to all related activities,

including pre-shift examinations of the ventilation controls. 37 FMSHRC at 1700

n.14. I therefore find that notice was an aggravating factor.

The

extent of the violation included two faces with insufficient air flow and the

displaced flypads. This factor is neither aggravating nor mitigating. I find the

duration of the violation to be a mitigating factor, as the inadequate

pre-shift exam was discovered by the inspector approximately one hour after it

was conducted. Furthermore, I also find that abatement was of minimal relevance

because of Brody’s limited opportunity to address the violation.

On remand, I find that notice, knowledge, and the

obviousness of

the violation are aggravating

factors and accord them moderate weight. I also accord the danger, extent, and

abatement elements minimal weight . Though I find the duration mitigating,

it is significantly outweighed by the aggravating factors. I therefore conclude

that the violation of section 75.360(b)(3) was an unwarrantable failure to

comply with a mandatory safety standard.

D.

Order No. 8075874 – Ventilation Obstruction Violation

Inspector Ward issued Order No. 8075874

on February 11, 2009, for a violation of 30 C.F.R. § 75.370(a)(1),

which provides, in part, that “[t]he operator shall develop and follow a

ventilation plan approved by the district manager.” Ward found a debris pile pushed

up against an idle working face, behind a ventilation curtain, which he

suspected was obstructing air flow. (Tr.46:4–8) He measured 1,050 CFM of air

flow at the face, where the ventilation plan requires 3,000 CFM. (Tr.46:9–12;

Ex. S–6)

The Secretary designated the violation

as S&S and an unwarrantable failure, and alleged that the operator demonstrated

high negligence. (Ex. S–6) She proposed a penalty of $4,440. (Pet., Ex. A) Prior

to hearing, the Secretary stipulated that the violation was not S&S. (Tr.12:2–10)

I held that the violation was not an unwarrantable failure based on: my finding

that Brody had no knowledge of the violation; a finding of high danger was

impossible to infer without methane present; the limited relevance of prior

citations under the same standard; and, the violation’s short duration. 33

FMSHRC at 1367–68. I found that the operator demonstrated no negligence based

on: the absence of methane at the face; Brody’s lack of knowledge of the

violation; and by discounting the relevance of previous citations. Id. On

appeal, the Commission faulted my decision for failing to address certain evidence,

including the inspector’s meeting with mine management, the gassy status of the

mine, the operator’s argument regarding the other ventilation plans, the

Secretary’s stipulation that the violation was not S&S, and the reduction

in gravity, which was not appealed. 37 FMSHRC at 1697–704. The Commission also

faulted the decision for failing to consider or note obviousness and to clearly

explain the findings relating to knowledge. Id. at 1698–99. It also held

that I erred by discounting the operator’s history of prior violations and by determining

the absence of methane mitigating in my unwarrantable failure and negligence determinations.

Id. at 1699–700. The Commission therefore remanded the unwarrantable failure

and negligence determinations.

1. Negligence

A negligence analysis under the Mine Act

involves an evaluation of the relevant facts in light of a regulation’s

requisite duty of care in order to reach a conclusion based on the totality of

circumstances. See Mach Mining ,

809 F.3d at 1264 . The standard

at issue, 30 C.F.R. § 75.370(a)(1), requires the operator to abide by the

mine’s approved ventilation plan. In particular, the plan requires 3,000 CFM of

air flow at idle working faces. (Ex. S–6) Importantly, this mine is classified

as “gassy,” as it emits 1.5 million cubic feet of methane per day. (Tr.34:8–15)

Compliance with the ventilation plan is critical in gassy mines to prevent the

buildup of methane, raising the standard of care expected of Brody. (Tr.34:5–15,

48:20–49:10) Brody therefore had a high standard of care to meet in adhering to

its ventilation plan.

Brody fell short of its ventilation

plan’s air flow requirements by roughly 66% at the No. 4 working face. (Tr.46:9–12;

Ex. S–6) The parties generally agreed that the violation did not exist for

long: Inspector Ward testified that the foreman on site told him that Brody had

scooped the debris pile against the face shortly before Ward arrived. (Tr.47:15–21)

Ward pointed to the presence of loose debris next to the face as an indication

that the air flow behind the curtain was obstructed and did not meet the requirements

of Brody’s ventilation plan. (Tr.46:4–12) I conclude that the responsible Brody

foreman should have known of the air flow obstruction based on the

positioning of the ventilation curtain in relation to the pile of debris as

well as the significant reduction in air flow. Upon re-examination of the

evidence, I therefore conclude that because the foreman’s knowledge is imputed

to it, Brody should have known the violation existed.

Brody argued the same mitigating factors

as with the previous section 75.370(a)(1) ventilation violation. See

discussion supra Section III.B.1. Brody points to the lack of methane

detected at the time of the inspection, the lack of activity at the mine face,

and the lack of hazards recorded by the pre-shift exam as mitigating. Id.

As previously discussed, the lack of methane is not mitigating. 37 FMSHRC at

1703. I determine the lack of activity at the No. 4 face to be only

slightly mitigating. The pre-shift reports support the conclusion that the

violation did not exist for long, which is somewhat mitigating. ( See

Tr.84:2–4)

In accord with the previous section 75.370(a)(1)

violation, Brody was on notice that it was failing to properly follow its

ventilation plan. Brody was cited 31 times for the same standard between

October 28, 2008, and January 15, 2009, and an explicit warning was given to

mine management that more needed to be done. (Tr.32:3–13, 33:5–7, 46:13–18, 48:1–12;

Ex. S–3, at 4) Brody’s failure to better supervise and train its miners to

prevent ventilation plan violations after explicit warnings warrants a higher

level of negligence. See Consolidated Coal , 35 FMSHRC at 2345–46. Based

on the high standard of care required for a gassy mine, Brody’s implied

knowledge, and its extensive prior notice of ventilation plan issues, I

conclude that Brody demonstrated high negligence.

2. Unwarrantable

Failure

Brody demonstrated high

negligence through its failure to abide by the requirements of its ventilation

plan. The Commission has “recognized that a finding of high negligence suggests

unwarrantable failure.” Eagle Energy , 23 FMSHRC at 839. As previously

discussed, an unwarrantable failure analysis must examine all relevant facts

and circumstances and consider all of the Commission’s unwarrantable factors. See

discussion supra Section II.C.

As previously discussed , Brody Mine No.

1 is a gassy mine, increasing

the

level of danger, and the absence of methane at the time of the MSHA inspection is not mitigating . 37 FMSHRC at

1697. I credit Inspector Ward’s testimony regarding the potential danger of a

rapid buildup of methane under low airflow conditions leading to an explosion. (Tr.34:5–15,

96:16–97:6) I again dismiss alternative ventilation plans that are not before

me with regard to mitigating the level of danger and also discount the

relevance of Consolidation Coal , 23 FMSHRC 270, for the previously

discussed reasons. See discussion supra Section III.B.2. The low level of

activity in the area provides some mitigation. I note that the Secretary

conceded the S&S designation for this violation before trial and did not

appeal the gravity of the violation that there was no likelihood of injury resulting

in any

loss of

workdays for zero miners. In

light of the foregoing, I find that the violation posed some degree of danger but was neither

aggravating nor mitigating .

I

found above that the violation existed for a relatively brief period of time,

as the debris had been moved against the face only shortly before the inspector

arrived. [9]

(Tr.47:15–21) The duration of the violation is therefore a mitigating factor. The

extent of the violation was a 66% decrease in the air flow at one working face.

(Tr.46:9–12; Ex. S–6) Brody argues that the scope of the violation was minimal,

pointing to the fact it took only six minutes to abate the violation. (Tr.362:13–16,

363:1–5) I find that the extent of the violation is a mitigating factor based

on the limited area affected, the brief existence of the violation, and the

minimal effort required to abate it. Brody was on notice that greater efforts

were required to comply with its ventilation plan. It was cited 31 times for

the same standard between October 28, 2008, and January 15, 2009, and an

explicit warning was given to mine management. (Tr.32:3–13, 33:5–7, 46:13–18,

48:1–12; Ex. S–3, at 4) I find that the extensive prior notice provided to

Brody was an aggravating factor and accord it significant weight.

On remand, I find that the violation

should have been obvious to Brody, based on the pile of debris obstructing air

flow, the position of the ventilation curtain, and the significant decrease in

air flow. The violation’s obviousness is an aggravating factor that I accord

moderate weight. Furthermore, given that it was the foreman responsible for the

area who informed Inspector Ward as to when the violation was created

(Tr.47:15–21), I find that Brody should have known of the violation. Brody’s

knowledge is an aggravating factor that I give moderate weight. Finally, I do

not find abatement a relevant factor here, due to the short time the violation

existed and lack of abatement efforts by Brody.

I conclude that notice is the most significant

aggravating factor .

Knowledge and obviousness

are also aggravating

factors that I accord moderate weight. The degree of danger is neither mitigating

nor aggravating. I accord it no weight in my determination. Though duration and

extent

are mitigating factors,

they are

significantly outweighed by the numerous aggravating factors present. Furthermore,

without the intervention of the inspector, Brody would have begun mining at

that face shortly after the inspection . Weighing the evidence as a whole, I

conclude that the violation of section 75.370(a)(1) was an unwarrantable

failure to comply with a mandatory safety standard.

E.

Order No. 8079178 – Water in Escapeway

Inspector Jackson issued Order No.

8079178 on January 22, 2009, for a violation of 30 C.F.R. § 75.380(d)(1),

which provides that “[e]ach escapeway shall be [. . .] [m]aintained in a safe

condition to always assure passage of anyone, including disabled persons.” Inspector

Jackson discovered that Brody’s examination reports indicated water at Break 7 for

the No. 3 section. (Tr.108:12–14; Ex. S–9) On reaching the area, he found the primary

escapeway was not passable, as it was flooded with water approximately 12 to 20

inches deep, from rib to rib, for 175 feet. (Tr.109:23–110:3; Ex. S–8)

The Secretary designated the violation

as S&S and an unwarrantable failure, and alleged that the operator demonstrated

reckless disregard. (Ex. S–8) She proposed a penalty of $56,929. (Pet., Ex. A) I

held that the violation was S&S and an unwarrantable failure, but concluded

that the operator demonstrated moderate negligence based on the existence of a

second escapeway and Brody’s prompt abatement of the violation. 33 FMSHRC at 1350–51.

On appeal, the Commission faulted my decision for basing the negligence

analysis upon 30 C.F.R. § 100.3(d) definitions, which do not govern Commission

proceedings. 37 FMSHRC at 1706. It further held that I erred by finding that an

alternative escapeway mitigated Brody’s negligence. Id. The Commission

therefore remanded to me the negligence determination.

1. Further Findings of Fact

The presence of water in the escapeway was

first recorded on January 21, 2009, in a weekly examination and was listed

under “Hazards Noted.” (Exs. R–3, at 4, S–9; see Tr.108:12–14,

177:9–178:3) The subsequent pre-shift and on-shift reports on January 22, 2009,

failed to note any water in the escapeway, though Brody alleges it was in the

process of pumping the water out. (Ex. R–3, at 5–7; Tr.159:1–11, 167:5–16) Nevertheless,

Inspector Jackson discovered an idle pump in the flooded escapeway, without a

power cable or drain line attached. (Tr.113:4–13, 151:2–13, 215:23–216:4) Brody

alleges that the power to the pump was disconnected because it had just moved

the rest of the mining equipment forward and the pump’s power cable was not

long enough. (Tr.161:18–162:5, 178:16–179:14) However, Brody did not explain

why the drain line, necessary to remove water, was detached from the pump if it

had been operating earlier. In fact, Brody Superintendent Fields testified that

he “took it for granted” that the drain line was still attached. (Tr.216:1–4) Furthermore,

after the order was issued, Brody was unable to abate the violation using a

pump due to the amount of sediment in the water—it had to build a bridge over

the area. (Tr.112:5–16) Based on the foregoing facts, particularly the absence

of a drain line and Brody’s inability to abate the violation using a pump, I find

that Brody had not started pumping water out of the escapeway prior to being

issued an order.

2. Negligence

The Secretary alleges that

Brody showed more than ordinary negligence and demonstrated reckless disregard

by its actions. [10]

A

negligence analysis under the Mine Act involves an evaluation of the relevant

facts in light of a regulation’s requisite duty of care in order to reach a

conclusion based on the totality of circumstances. See Mach Mining , 809 F.3d at 1264 . The standard at issue, 30 C.F.R. § 75.380(d)(1),

requires the operator to maintain the mine’s escapeways in a passable and safe

condition. Here, Brody could have met the required standard of care by abating

the escapeway violation as soon as it was discovered.

Brody

first reported water in the escapeway on January 21, 2009, in its weekly report

and subsequently left an unpowered pump at that location. (Exs. R–3, at 4, S–9)

Brody did not start pumping water out until it was issued an order by the

inspector on January 22, 2009. The weekly report and the presence of the idle pump

establish that Brody knew of the hazard no later than January 21, 2009. ( See

Tr.159:1–11, 195:3–12) Though Brody disputes whether the escapeway was

traversable, as well as the depth of the water, the 175 foot length and rib-to-rib

width of the flooded escapeway was not disputed. (Tr.211:13–22) The water was

12–20 inches deep, opaque, and concealed an uneven surface that made passage challenging,

even for an uninjured person under normal conditions. (Tr.109:21–110:8, 150:10–151:1)

I reiterate my previous finding that the flooded escapeway impeded travel for

disabled miners and for those assisting disabled miners. 33 FMSHRC at 1349. Escapeway

violations are particularly significant as there may be an increased risk of serious

injury or fatality during emergency evacuations. See, e.g. , Big

Ridge, Inc. , 36 FMSHRC 1115, 1119 (May 2014) (“The hazard of a delayed

escape or no escape at all [. . .] in an emergency is reasonably likely to

result in serious or fatal injuries.”); Maple Creek Mining, Inc. , 27

FMSHRC 555, 563–64, 64 n.5 (Aug. 2005) (noting that the potential for slips and

falls would be greater during a mine evacuation). In the event of an emergency,

incapacitated miners on a stretcher could not be set down, even momentarily,

for the length of the flooded escapeway without the risk of drowning them in 12–20

inches of water. ( See Tr.113:19–114:3) Furthermore, miners are tethered

together during evacuations, which would create additional difficulties for

them in navigating the uneven surface of this flooded escapeway. (Tr.114:4–10)

As the Commission noted on appeal, the existence

of a second escapeway does not mitigate Brody’s negligence. 37 FMSHRC at 1706. In

an emergency, miners would attempt to use the nearest escapeway and may not be

aware of the flooding. Brody also argued, as a mitigating factor, that this

area was mined primarily for the purpose of reaching a borehole [11]

in order to address the mine’s water removal and ventilation issues. (Tr.159:12–24,

214:19–215:11) However, Brody’s general safety-promoting purpose of removing water

and increasing ventilation did not absolve it from its duty to maintain safe, passable

escapeways while it advanced this section of the mine. Furthermore, restoring

power to every other piece of mining equipment at the nearby face, without properly

setting up the pump, clearly indicated Brody’s priority. (Tr.151:14–152:1,

179:2–23)

Brody

could have met its duty of care by setting up an energized pump with a drain line

connected as soon as a significant amount of water was detected in this

escapeway. In contrast, Brody placed an unenergized pump at the location,

indicating it was aware of the problem, but nevertheless failed to begin

pumping water out of the escapeway until cited by MSHA. Brody’s conduct displayed

disregard for the substantial risk of harm created by the flooded escapeway and

was a gross deviation from what a reasonable miner would do. After re-examination

of the foregoing evidence and discounting the alternative escapeway, I conclude

that Brody demonstrated reckless disregard by failing to address this known, extensive,

obvious, and egregious safety violation.

F.

Order No. 8075906 – Missing Guard Plate

Inspector Ward issued Order No. 8075906

on March 3, 2009, for a violation of 30 C.F.R. § 75.1722(a), which

provides, in part, that “exposed moving machine parts which may be contacted by

persons, and which may cause injury to persons shall be guarded.” Ward noticed that

a shuttle car was missing a guard plate over a one-foot-by-one-foot opening,

which left moving machine parts exposed. (Tr.53:1–13; Ex. S–7) Ward’s subsequent

discussions with Brody employees revealed that the plate had been missing for

two weeks. (Tr.53:19–21, 54:6–24, 400:13–18)

The Secretary designated the violation

as S&S and an unwarrantable failure, and alleged that the operator

demonstrated high negligence. (Ex. S–7) She proposed a penalty of $4,000. (Pet.,

Ex. A) I held that the violation was S&S and an unwarrantable failure but concluded

that the operator demonstrated moderate negligence based on mitigation provided

by the company “offside” policy and the impossibility of contact by the shuttle

operator. 33 FMSHRC at 1374–78. On appeal, the Commission faulted my decision

for basing the negligence analysis upon 30 C.F.R. § 100.3(d) definitions,

which do not govern Commission proceedings, and for failing to properly weigh

the two week duration of the violation. 37 FMSHRC at 1706. It further noted

that Brody’s company policies did not mitigate its negligence when it had knowledge

of the violation. Id. at 1706–07. The Commission therefore remanded to

me the negligence determination.

1. Negligence

A negligence analysis under the Mine Act

involves an evaluation of the relevant facts in light of a regulation’s

requisite duty of care in order to reach a conclusion based on the totality of

circumstances. See Mach Mining ,

809 F.3d at 1264 . The standard at

issue, 30 C.F.R. § 75.1722(a), requires the operator to provide

guards over moving machine parts that could be contacted by miners. Here, Brody

could have met the required standard of care by repairing the missing guard

plate when it was first discovered two weeks prior, or by pulling the shuttle

car from service until repairs could be made.

The

opening for the missing guard plate was located on the offside of a shuttle car

at about waist height. (Tr.55:1–21) The shuttle car was about 18–20 feet long,

12 feet wide, and was used every working shift to haul coal from the continuous

miner to the feeder. (Tr.326:17–24, 330:18–23) Brody’s records did not note the

hazard during the two weeks before the order was issued, though the shuttle car

was subject to pre-shift inspections and examined several times. (Tr.94:10–14, 342:20–343:6,

411:13–412:11) I previously discounted Brody’s examination records and found that

the totality of the evidence supports the conclusion that the guard plate had

been missing for two weeks. 33 FMSHRC at 1377–78. I also found that Brody had

ample reason to know about the violation. Id. at 1378. The Commission noted

on appeal that the two week period when Brody management knew of the violation was

an aggravating circumstance and that the company’s safety policies were not relevant

to its negligence in the face of this knowledge. 37 FMSHRC at 1706–07. I reiterate

my previous determination that “[t]he weight of mitigation here is quite low” and,

under a traditional negligence analysis, find that Brody demonstrated high negligence.

33 FMSHRC at 1375.

G.

Order No. 8079224 – Feeder Accumulations

Inspector Jackson issued Order No.

8079224 on February 26, 2009, for a violation of 30 C.F.R. § 75.400,

which provides that “[c]oal dust [. . .] shall be cleaned up and not be

permitted to accumulate in active workings, or on diesel-powered and electric

equipment therein.” Jackson discovered an accumulations violation consisting of

loose coal and coal dust that was 12 feet long, 2 to 3 feet wide, and 18 inches

deep, located on top of a feeder. [12]

(Ex. S–11; Tr.125:8–11, 274:9–19) Jackson alleged that the accumulations were saturated

with hydraulic oil and that some parts of the machinery were “extremely hot to

the touch.” (Tr.125:2–19)

The Secretary designated the violation

as S&S and an unwarrantable failure, and alleged that the operator

demonstrated reckless disregard. (Ex. S–11) She proposed a penalty of $70,000. (Pet.,

Ex. A) I held that the violation was not S&S but was an unwarrantable

failure. 33 FMSHRC at 1385. I concluded that the operator demonstrated moderate

negligence based on mitigation provided by the wetness of the coal and after discounting

the Inspector’s testimony that the accumulation existed for more than one shift.

Id. at 1383–84. On appeal, the Commission faulted my decision for basing

the negligence analysis upon 30 C.F.R. § 100.3(d) definitions, which do

not govern Commission proceedings. 37 FMSHRC at 1706. The Commission therefore

remanded to me the negligence determination.

1. Negligence

A negligence analysis under the Mine Act

involves an evaluation of the relevant facts in light of a regulation’s

requisite duty of care in order to reach a conclusion based on the totality of

circumstances. See Mach Mining ,

809 F.3d at 1264 . The standard at

issue, 30 C.F.R. § 75.400, requires the operator to prevent the

accumulation of coal and other combustible materials.

Inspector Jackson found coal

accumulations on the oil tank, oil filters, valve chest, hydraulic hoses, and electrical

components of an energized feeder, with the oil tank and oil filters hot to the

touch. (Tr.125:2–19) He believed the coal accumulations were saturated with

hydraulic fluid due to their appearance and location on the feeder, but did not

take any affirmative steps to confirm this. (Tr.125:2–7, 145:13–146:3) The

Secretary alleged reckless disregard based on Inspector Jackson’s belief that

the accumulations were saturated with hydraulic oil, which one could reasonably

assume to be flammable. Ultimately, however, I concluded that the accumulations

were wet with water, based on the totality of the evidence. 33 FMSHRC at

1382–83. Nevertheless, wet coal is still dangerous. As the Commission has long

held, even “accumulations of damp or wet coal, if not cleaned up, can dry out

and ignite.” Mid-Continent Res., Inc. , 16 FMSHRC 1226, 1230 (June 1994) citing

Utah Power & Light Co., Mining Div. , 12 FMSHRC 965, 969 (May 1990), aff’d ,

951 F.2d 292 (10th Cir. 1991); Black Diamond Coal Mining Co. , 7 FMSHRC

1117, 1120–21 (Aug. 1985).

I further found that the hot, energized feeder

machine, as well as an electrical cable splice [13]

located on the feeder, could both act as ignition sources, though the presence

of water mitigated against ignition. 33 FMSHRC at 1383. Based on the

absence of any hazards in its pre-shift examination reports, Brody argues that

the accumulations developed after its pre-shift exam and before the MSHA

inspection. (Tr.261:6–262:14; Ex. R–7, at 2–5) On remand, I credit Jackson’s testimony

that the accumulations were present for approximately one shift, based on the

presence of a cover on the feeder over some of the accumulations that would

slow the rate at which coal spillage built up. (Tr.128:24–129:12) Accordingly,

Brody should have discovered the accumulation during its pre-shift examination

and cleaned it immediately. Furthermore, as mentioned above, Brody was cited 29

times in the previous four months for violations of 30 C.F.R.

§ 75.400 (Tr.122:2–9; Ex. S–10) and was on notice that greater efforts

were required for compliance. 33 FMSHRC at 1385. Brody’s failure to discover

and subsequently clear the coal accumulations while on heightened notice

suggests that it was highly negligent in this instance. See, e.g. ,

Mach Mining , 809 F.3d at 1264–65, 1268 (holding that substantial evidence

supported ALJ’s determination of “high negligence” where operator had history

of section 75.400 violations and coal accumulations were wet).

Brody argues that the redundant fire safety

measures near the feeder mitigate its negligence. (Tr.256:9–257:2) It also points

to the regular inspections and daily cleaning, which failed to prevent the

accumulations in this instance. (Tr.257:3–16) The CO detector, water hose, and fire

extinguisher, all required by MSHA regulations, would not prevent a fire from

occurring but could be used to reduce the severity of any resulting fire. The

nature of the feeder machine’s “fire suppressants” was not made clear. I find

that the redundant safety features provided no mitigation, as they did not

prevent this accumulations violation from arising and could not prevent a fire

from starting. Finally, though I found the accumulations wet with water and not

hydraulic oil, I determine the general wetness of the mine only slightly

mitigating, as this section of the mine was not nearly as wet as Section No. 3.

Had the coal accumulation been saturated

with hydraulic oil, as Inspector Jackson believed, I may have concluded that

Brody acted with reckless disregard. See discussion supra Section

III.E.2. However, based on the record before me ,

I conclude that Brody’s failure to clean the coal accumulation displays high

negligence.

IV. PENALTY

When assessing a civil

penalty, section 110(i) of the Mine Act requires that I consider six criteria:

(1) the operator’s history of previous violations; (2) the appropriateness of

the penalty relative to the size of the operator’s business; (3) the

operator’s negligence; (4) the penalty’s effect on the operator’s ability to

continue in business; (5) the violation’s gravity; and, (6) the demonstrated

good faith of the operator in attempting to achieve rapid compliance after notification

of a violation. 30

U.S.C. § 820(i) .

I

credit the Secretary’s records pertaining to the operator’s history of previous

violations as accurate for each order. Brody Mining, LLC, was a large business,

mining 2,250,965 tons at the time of the orders. (Pet., Ex. A) Brody did not

allege that the proposed penalties would adversely affect its ability to

continue in business. The Commission has held that “[i]n the absence of proof

that the imposition of authorized penalties would adversely affect [an operator’s]

ability to continue in business, it is presumed that no such adverse [e]ffect

would occur.” Sellersburg Stone Co. , 5 FMSHRC 287, 294 (Mar. 1983) (citing  Buffalo

Mining Co. , 2 IBMA 226, 247–48 (Sept. 1973)). I further find, and the

Secretary did not dispute, that Brody acted in good faith to rapidly abate each

order.

For Order No. 8079179, my previous holding

that Brody demonstrated moderate negligence stands. 33 FMSHRC at 1356–57. On

remand, I have further determined that the violation was reasonably likely to

cause an injury resulting in lost workdays or restricted duty for eight miners

and was S&S. I also determined on remand that the violation was an

unwarrantable failure to comply with a mandatory health or safety standard

under 30 U.S.C. § 814(d)(2), for which the Mine Act mandates a minimum

penalty of $4,000. 30 U.S.C. § 820(a)(3)(B). In light of the foregoing, I

conclude that a penalty of $5,500 is appropriate.

For Order No. 8075863, my previous

holding that the violation was unlikely to result in lost workdays or

restricted duty for five miners stands. 33 FMSHRC at 1339. The Secretary

stipulated that the violation was not S&S before trial. (Tr.12:2–10) On

remand, I have further determined that Brody demonstrated high negligence. I also

determined on remand that the violation was an unwarrantable failure to comply

with a mandatory health or safety standard under 30 U.S.C. § 814(d)(2),

for which the Mine Act mandates a minimum penalty of $4,000. 30 U.S.C. § 820(a)(3)(B).

In light of the foregoing, I conclude that the statutory minimum penalty of

$4,000 is appropriate.

For Order No. 8075864, my previous

holding that Brody demonstrated high negligence stands. 33 FMSHRC at 1344. The Secretary

stipulated that the violation was not S&S before trial. (Tr.12:2–10) On remand, I have

reweighed the evidence and determined that the violation was unlikely to result in

lost workdays or restricted duty for 14 miners. I also determined on remand that

the violation was an unwarrantable failure to comply with a mandatory health or

safety standard under 30 U.S.C. § 814(d)(2), for which the Mine Act

mandates a minimum penalty of $4,000. 30 U.S.C. § 820(a)(3)(B). In light of the

foregoing, I conclude that a penalty of $ 6,500 is appropriate.

For Order No. 8075874, my previous gravity

determination that reduced the number of miners affected to zero, the

likelihood of occurrence to “no likelihood,” and the severity of injury to “no

lost workdays” stands. 33 FMSHRC at 1368. The Secretary stipulated that the

violation was not S&S before trial. (Tr.12:2–10) On remand, I have further

determined that Brody demonstrated high negligence. I also determined on remand

that the violation was an unwarrantable failure to comply with a mandatory

health or safety standard under 30 U.S.C. § 814(d)(2), for which the Mine

Act mandates a minimum penalty of $4,000. 30 U.S.C. § 820(a)(3)(B). In light

of the foregoing, I conclude that the statutory minimum penalty of $4,000 is

appropriate.

For Order No. 8079178, my previous

holding that the violation was reasonably likely to result in fatal injuries to

eight miners and was S&S stands. 33 FMSHRC at 1351. I also previously

determined that the violation was an unwarrantable failure to comply with a

mandatory health or safety standard under 30 U.S.C. § 814(d)(2), for which

the Mine Act mandates a minimum penalty of $4,000. 30 U.S.C.

§ 820(a)(3)(B). On remand, I have further determined that Brody

demonstrated reckless disregard. In light of the foregoing, I conclude that a penalty

of $50,000 is appropriate, particularly considering that the Secretary’s

proposed penalty failed to discount the raw penalty point assessment by 10% for

good faith abatement.

For Order No. 8075906, my previous

holding that the violation was reasonably likely to result in a permanently

disabling injury to one miner and was S&S stands. 33 FMSHRC at 1378. I also

previously determined that the violation was an unwarrantable failure to comply

with a mandatory health or safety standard under 30 U.S.C. § 814(d)(2),

for which the Mine Act mandates a minimum penalty of $4,000. 30 U.S.C.

§ 820(a)(3)(B). On remand, I have further determined that Brody

demonstrated high negligence. In light of the foregoing, I conclude that the

statutory minimum penalty of $4,000 is appropriate.

For Order No. 8079224, my previous

holding that the violation was unlikely to result in lost workdays or restricted

duty for 14 miners and was not S&S stands. 33 FMSHRC at 1385. I also

previously determined that the violation was an unwarrantable failure to comply

with a mandatory health or safety standard under 30 U.S.C. § 814(d)(2),

for which the Mine Act mandates a minimum penalty of $4,000. 30 U.S.C.

§ 820(a)(3)(B). On remand, I further determined that Brody demonstrated

high negligence. In light of the foregoing, I conclude that a penalty of $11,000

is appropriate.

V. ORDER

The

Commission decision states:

[W]e vacate and remand the following

issues in Docket No. WEVA 2009-1000: (1) the unwarrantability of the violation

and the negligence of the operator in connection with the violation in Order

No. 8075863; (2) the unwarrantability and gravity of the violation in Order No.

8075864; (3) the negligence in connection with the violation in Order No.

8079178; and (4) whether the violation in Order No. 8079179 was S&S and

unwarrantable . . . . [W]e also vacate and remand the following issues in

Docket No. WEVA 2009-1306: (1) the unwarrantability of the violation and the

negligence of the operator in connection with the violation in Order No.

8075874; (2) the negligence in connection with the violation in Order No.

8075906; and (3) the negligence in connection with the violation in Order No.

8079224.

37

FMSHRC at 1707.

In conformance with the Commission’s

remand instructions, I hereby enter the following orders:

It is ORDERED that Order No.

8079179 be MODIFIED to reduce the level of injury expected from “Fatal”

to “Lost Workdays or Restricted Duty.”

It is ORDERED that Order No.

8075864 be MODIFIED to reduce the likelihood from “Reasonably Likely” to

“Unlikely.”

It is ORDERED that Order No.

8079224 be MODIFIED to reduce the level of negligence from “Reckless

Disregard” to “High.”

It is ORDERED that Order Nos.

8079178 and 8075906 be AFFIRMED as written.

In its decision, the Commission did not

reach the following modifications I ordered in my original decision to Order

Nos. 8079179, 8075863, 8075864, 8075874, and 8079224, which are reiterated as

follows:

It is ORDERED that Order No.

8079179 be MODIFIED to reduce the level of negligence from “Reckless

Disregard” to “Moderate.”

It is ORDERED that Order No.

8075863 be MODIFIED to reduce the likelihood from “Reasonably Likely” to

“Unlikely” and to remove the “S&S” designation.

It is ORDERED that Order No.

8075864 be MODIFIED to remove the “S&S” designation.

It is ORDERED that Order No.

8075874 be MODIFIED to reduce the likelihood from “Reasonably Likely” to

“No Likelihood,” to reduce the level of injury expected from “Lost Workdays Or

Restricted Duty” to “No Lost Workdays,” to reduce the number of miners affected

from “5” to “0,” and to remove the “S&S” designation.

It is ORDERED that Order No.

8079224 be MODIFIED to reduce the likelihood from “Reasonably Likely” to

“Unlikely,” to reduce the level of injury expected from “Fatal” to “Lost

Workdays or Restricted Duty,” and to remove the S&S designation.

WHEREFORE , it is further ORDERED

that Brody Mining PAY a total penalty of $85,000.00 within forty (40)

days of the date of this Decision on Remand. [14]

/s/

L. Zane Gill

L.

Zane Gill

Administrative

Law Judge

Distribution:

J.

Matthew McCracken, Esq., Office of the Solicitor, U.S. Department of Labor, 201

12th street South, Suite 500, Arlington, VA 22209-2247

Amos

H. Presler, Esq., Office of the Solicitor, U.S. Department of Labor, 201 12th

street South, Suite 500, Arlington, VA 22209-2247

Jason

M. Nutzman, Esq., Dinsmore & Shohl, LLP, 707 Virginia Street East, Suite

1300, Charleston, WV 25301-2720

[1] Neither party

appealed the determinations made regarding the section 104(d)(2) Order No.

8068033.

[2] The S&S terminology is taken from section 104(d)(1)

of the Mine Act,  30 U.S.C. § 814(d)(1) ,

which distinguishes as more serious any violation that “could significantly and

substantially contribute to the cause and effect of a [. . .] mine safety or

health hazard.”

[3] The  unwarrantable  failure

terminology is taken from section 104(d)(1) of the Mine Act,  30

U.S.C. § 814(d)(1) , which establishes more

severe sanctions for any violation that is caused by an “ unwarrantable  failure of [an] operator to comply with [. . .] mandatory

health or safety standards.”

[4] At the time of

the petition and original decision, the Secretary of Labor was Hilda L. Solis. The

current Secretary of Labor is R. Alexander Acosta.

[5] The offside of

a belt is the side miners do not travel on. (Tr.143:4–17) The offside of a

vehicle is the side opposite the driver. (Tr.52:20–24, 100:17–21)

[6] The Secretary

did not appeal the moderate negligence determination and it was not reviewed by

the Commission. 37 FMSHRC at 1692 n.7.

[7] Rock dust is a

non-combustible powder used to suppress coal dust and reduce its

combustibility. (Tr.209:3–14) Though Inspector Jackson stated that rock dust is

black in his testimony, I find the Commission’s suggested explanation that he simply

misspoke persuasive. 37 FMSHRC at 1690 n.6.

[8] Flypads are wide,

flat, semi-clear plastic strips hung vertically in an overlapping pattern to act

as a curtain that allows equipment and personnel to pass through while still

controlling airflow. (Tr.34:21–35:10, 291:2–18)

[9] To clarify, I

note that the amount of time required for Brody to abate the violation is not

relevant to how long the violation existed. See 37 FMSHRC at 1698.

[10] As

Judge Paez noted in Stillhouse Mining , “[a]s a legal term, “reckless”

has been described as conduct—[c]haracterized by the creation of a substantial

and unjustifiable risk of harm to others and by a conscious (and sometimes

deliberate) disregard for or indifference to that risk; heedless; rash . . . .

Reckless conduct is much more than mere negligence: it is a gross deviation

from what a reasonable person would do.” Stillhouse Mining, LLC , 33

FMSHRC 778, 803 (Mar. 2011) (ALJ) (citing Reckless , Black's Law

Dictionary (8th ed. 2004)).

[11] A borehole is a

shaft drilled down vertically from the surface.

[12] A feeder is a

large piece of stationary equipment where shuttle cars dump loads of coal to be

crushed and fed onto a conveyor belt. (Tr.254:10–22)

[13] Citation No.

8079225 was issued for a cable splice made without suitable connectors that was

located on the feeder. (Ex. S–12; Tr.127:22–128:8)

[14] Payment should be sent to: Mine Safety & Health

Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St.

Louis, MO 63179-0390.