Secretary of Labor v. Newtown Energy, Inc.

Plain-English summary

During a 2010 inspection at Newtown Energy's Coalburg No. 2 Mine in West Virginia, an MSHA inspector asked the mine superintendent to lock out a shuttle car's power connection so the trailing cable could be inspected. The superintendent borrowed a lock, could not get the key back out, and left the key sitting in the lock without telling the inspector, while repairs were made to the cable with a metal knife. The ALJ found a violation of the lockout standard but stripped the significant and substantial and unwarrantable failure findings and cut the penalty from $7,578 to $207. The Commission reversed on S&S, holding that anyone passing the power center could have unlocked the cathead and re-energized a 277-volt cable that a miner was handling. The decision also restates how the four-part Mathies test works: the judge must first define the specific hazard the cited standard is meant to prevent, then ask at step two whether the violation made that hazard reasonably likely to occur, and only then assume the hazard happened and ask at steps three and four about injury and severity. The Commission held it was legal error to treat miner training, caution, or the presence of an inspector as reasons the hazard was less likely, because a hazard exists regardless of whether caution is exercised. It also reversed the low negligence finding, holding the superintendent to a higher standard of care and finding high negligence, and remanded the unwarrantable failure question and the penalty. Two Commissioners would have applied a lower "at least somewhat likely" threshold at step two, two would have upheld the judge's no-S&S finding as supported by substantial evidence, and two would have found unwarrantable failure outright instead of remanding.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.511 (lockout and tagout for electrical work)
• Outcome: The S&S designation was reinstated, the low negligence and low gravity findings were reversed, and the unwarrantable failure determination and the $207 penalty were vacated and remanded.
• Key point: A judge must name the specific hazard the standard guards against and test its likelihood at step two of Mathies, and cannot discount that likelihood on the theory that trained, cautious miners would avoid the danger.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY OF LABOR ,

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA)

v.

NEWTOWN ENERGY, INC.

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Docket No. WEVA 2011-283

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

DECISION

BY THE COMMISSION:[1]

This proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act”), and involves a section 104(d)(1) citation issued by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Newtown
Energy, Inc. (“Newtown”). The citation alleges that Newtown violated 30 C.F.R. §
75.511 by failing to lock out a shuttle car’s[2]
trailing cable cathead while it was being physically inspected and repaired.[3]

The Administrative Law Judge affirmed
the violation but determined that the gravity of the violation and the negligence
of Newtown was less than alleged. 35 FMSHRC 2494 (Aug. 2013). The Judge vacated
the “significant and substantial” and “unwarrantable failure” determinations in
the citation and reduced the negligence to “low.” The Secretary filed a
petition for discretionary review of the Judge’s negligence, gravity, “significant
and substantial,” and “unwarrantable failure” determinations, which we granted.

For the reasons that follow, we reverse
the Judge’s findings on S&S, and vacate and remand the Judge’s unwarrantable
failure determination and civil penalty assessment.

I.

Factual
and Procedural Background

In May 2010, MSHA Inspector Russell
Richardson conducted a regular inspection of the No. 2 section of Newtown
Energy’s Coalburg No. 2 Mine, an underground mine in West Virginia. Richardson
was accompanied by Mine Superintendent Robert Herndon, a certified electrician.
At the time of the inspection, the section had stopped production due to a problem
with the section’s continuous miner. All miners on the section except the
shuttle car operator were located at the site of the continuous miner.

Upon arriving at the section, Richardson
spoke briefly with the miners there, and then continued on with the shuttle car
operator to inspect the nearby shuttle cars. Richardson directed Superintendent
Herndon to lock out the shuttle car’s cathead[4]
at the power station so that he could inspect the shuttle car’s trailing cable.
Herndon informed Richardson that he did not have a lock, but he agreed to
obtain one from another miner. After several attempts, Herndon procured a lock
owned by a roof bolt operator.

While the shuttle car operator and
Richardson proceeded to the shuttle cars, Superintendent Herndon went to the
power center, de-energized the cathead for the shuttle cars, and locked the
cathead with the roof bolter’s lock. However, Herndon found that he was unable to
remove the lock’s key without possibly breaking it. So, he left the key in the
lock and rejoined the inspection party. He left the locked cathead with the key
still in it lying on the floor of the mine. Herndon did not tell Richardson
that he left the key in the lock.

While inspecting the shuttle car’s
trailing cable, Richardson discovered two defects in the outer jacket of the
trailing cable that required repair. The first defect was repaired with the
application of electrical tape and rubber to the end of a splice boot where
moisture could enter. The second defect, which exposed the inner copper wire of
the black power conductor, was repaired by cutting away part of the cable’s
insulation and adding rubber and tape to seal off the repair.

Richardson continued inspecting the
trailing cable until he reached the power station. At that time, the inspector discovered
that the key had not been removed from the lock on the cathead. Accordingly,
the inspector issued Citation No. 8110086 for a violation of 30 C.F.R.

§ 75.511. Richardson alleged that the failure to properly
lock out the shuttle car’s cathead while performing electrical work was
significant and substantial (“S&S”)[5]
and constituted an unwarrantable failure[6]
to comply on the part of Newtown. Sec’y Ex. 3.

The Judge determined that Herndon’s
failure to properly lock out the trailing cable cathead while performing electrical
repair work on the cable constituted a violation of section 75.511. 35 FMSHRC
at 2500. He then found five mitigating factors that warranted a finding of low
negligence. In particular, the Judge found that (1) the citation was a direct
result of the inspection process, not the normal mining cycle, and that if the
inspector had not ordered the lockout of the power on the cable cathead to
facilitate the inspector’s investigation of the trailing cable, no violation
would have occurred; (2) the inspector failed to recognize the interplay
between his direction to Herndon and the resulting violation; (3) although
Herndon should not have used a faulty lock, his actions were a good faith
attempt to comply with the inspector’s request; (4) section 75.511 allows for
the use of a tag when locking out is not possible and the faulty lock “did act
as a signal to anyone seeing it that something out of the ordinary was going
on”; and (5) the faulty lock was only on the
cathead for a short period of time—10 to 30 minutes. 35 FMSHRC at 2501–02.

The Judge vacated the citation’s
S&S designation. The Judge found that the chain of events required for the
hazard to result in an injury was so remote as to make the likelihood of injury
“almost speculative.” Id. at 2506. He recognized that, if the events did
occur, the result would be potentially fatal. However, the Judge reasoned that
because the miners on the section were aware of the ongoing MSHA inspection,
had been trained to only remove locks that they had themselves placed on
electrical components, and were not under pressure to maintain production, a
miner who is “reasonably aware of his surroundings” would not likely
re-energize the trailing cable. Id. at 2503, 2506. Additionally, the
Judge found that, for the short period of time the lock was on the cathead, the
inspection party maintained some level of control over access to the trailing
cable due to its close proximity to the power station. Id. at 2505.

In his unwarrantable failure
analysis, the Judge found that the violation was a product of ordinary
negligence, not aggravated or intentional misconduct. The Judge stated that the
traditional factors set forth in IO Coal Co., 31 FMSHRC 1346 (Dec.
2009), did not lend themselves to violations that occur in the course of an
inspection and only exist for a short period of time. Based upon his negligence
and gravity analysis, the Judge concluded that “this was an isolated, ad hoc
event, noteworthy primarily because of the potential severity of consequences
from an unlikely event” and thus did not warrant the unwarrantable failure
designation. 35 FMSHRC at 2508. The Judge reduced the $7,578 penalty proposed
by the Secretary to $207.

II.

Disposition

On review, the Secretary argues that the Judge
erred in vacating the citation’s S&S and unwarrantable failure designations
and by reducing the proposed civil penalty from $7,578 to $207. As to the
assessed penalty, the Secretary contests the Judge’s findings concerning the
gravity of the violation and the negligence of the operator.

Below, we address the Commission’s S&S test
as articulated in Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984), in
light of recent appellate decisions, and apply the test to the facts of the
case. Next, we review the Judge’s unwarrantable failure findings. Finally, we
examine the Judge’s findings as to the section 110(i) penalty criteria, negligence,
and gravity.

A.        S&S

1.         The Mathies Test[7]

Section 104(d)(1) of the Mine Act provides that
inspectors must note if a “violation is of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” Under longstanding Commission precedent, a violation
is significant and substantial if, based on the particular facts surrounding
the violation, there exists a reasonable likelihood that the hazard contributed
to by the violation will result in an injury or illness of a reasonably serious
nature. Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In
National Gypsum, we also stated that a violation “‘significantly and
substantially’ contributes to the cause and effect of a hazard if the violation
could be a major cause of a danger to safety or health. In other words, the
contribution to cause and effect must be significant and substantial.” Id.
at 827.

In Mathies, the Commission further
explained:

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

6 FMSHRC at 3–4 (footnote omitted). Accord Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria).

In conducting the Mathies analysis, the
focus now generally centers on the interplay between the second and third steps.
A correct understanding of that interplay is crucial to the appropriate
evaluation of S&S.[8]

The second step addresses the extent to which
the violation contributes to a particular hazard. This step is primarily
concerned with likelihood of the occurrence of the hazard against which a
mandatory safety standard is directed. Knox Creek Coal Corp. v. Sec’y of
Labor, 811 F.3d 148, 162 (4th Cir. 2016).

The third step is primarily concerned with
gravity. Id. at 162. At this stage, the analytical focus shifts from the
violation to the hazard, which has been established in stage two, and whether
it would be reasonably likely to result in injury. See Cumberland
Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Eng’g,
Inc. & PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010); Knox Creek,
811 F.3d at 162 (“Requiring a showing at [step] three that the violation itself
is likely to result in harm would make [step] two superfluous.”). “Every
federal appellate court to have applied Mathies has also assumed the
existence of the relevant hazard when analyzing the test’s third [step].” Knox
Creek, 811 F.3d at 161–162 (citing Peabody Midwest Mining, LLC v. Fed. Mine
Safety & Health Review Comm’n, 762 F.3d 611, 616 (7th Cir. 2014); Buck
Creek, 52 F.3d at 135; Austin Power, 861 F.2d at 103–04; cf.
Cumberland Coal Res., LP v. Fed. Mine Safety & Health Review Comm’n,
717 F.3d 1020, 1025–27 (D.C. Cir. 2013)).

Therefore, the relevant concept tying together
the second step “likelihood” analysis and third step “gravity” analysis of Mathies
is the “hazard” at issue. In light of the analytical importance placed on
“hazards” under the Mathies test, it is essential for the Judge to
adequately define the particular hazard to which the violation allegedly
contributes. A clear description of the hazard at issue places the analysis of
the violation’s potential harm in context, by requiring a determination of the
relative likelihood that the violation will have a meaningful, adverse effect
on conditions miners will encounter during normal mining operations. That same
clearly defined hazard will also frame the potential source of injury for
purposes of determining gravity in the third step analysis. The Commission thus
defines the “hazard” in terms of the prospective danger the cited safety
standard is intended to prevent.

The articulation of the hazard in the instant
matter therefore considers the potential danger, and the violation’s
contribution to a reasonable likelihood that injury to miners may result. As
described above, the starting point for determining the hazard is the actual
cited section. Section 75.511, the standard violated in this case, requires
that electrical equipment be locked out and tagged out while electrical work is
performed on the equipment. The requirement of lock out and tag out is to
ensure that power will not be restored during electrical work, thus protecting
the miners performing the electrical work from electrical shock or
electrocution. Hence, the specific hazard in this case is that the cathead for
the shuttle car would be re-connected to the power center, thus re-energizing
the cable which Richardson was inspecting and Herndon was repairing—that is, the hazard of a miner working on energized
equipment. Simply stated, in this case, the tangible hazard for consideration
at the second step was the likelihood of the occurrence of miners working on
energized equipment.

Having clearly defined the hazard, the next task
at step two is for the Judge to determine whether the violation sufficiently
contributed to that hazard. The Commission has utilized a “reasonable likelihood”
analysis for determining whether a violation significantly and substantially
“contributes” to a hazard. That means the second step requires a determination
of 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. Here, for example, the question
under step two is whether, under these particular circumstances, the violation
(the failure to remove the key from the lock) was reasonably likely to result
in the restoration of power to the shuttle car cables while the inspection
group was working on it.[9]

If the Judge concludes, based upon the evidence,
that the violation sufficiently contributes to the hazard identified at step two,
the Judge then assumes such occurrence and determines at step three whether,
based upon the particular facts surrounding the violation, the occurrence of
that hazard would be reasonably likely to result in an injury. At step four,
the Judge determines whether any resultant injury would be reasonably likely to
be reasonably serious.

We recognize that “reasonable likelihood” is not
an exact standard. Obviously, a Judge cannot calculate the degree of risk of
the occurrence of a hazard or a reasonably serious injury in precise percentage
terms. Rather, the “reasonable likelihood” standard is a “matter of a degree”
evaluation with particular focus on the facts and circumstances presented
regarding these risks. This imprecision and the complexity of the facts in many
Mine Act cases do not undercut the importance of the standard; indeed, it
serves to emphasize the necessity for careful, thoughtful review of all
relevant facts in every S&S proceeding. In this regard, it is not unlike
other decisions that require Commission Judges to apply their experience and
sound discretion to the resolution of difficult, fact-intensive questions, such
as those involved in an unwarrantable failure analysis.[10] And as with the
unwarrantable failure analysis, Commission Judges have applied an analytical
framework in S&S cases that has developed a generally coherent view of the
term “reasonably likely,” despite its inherent imprecision.

In a recent Mine Act case involving an S&S
determination, the Fourth Circuit used the phrase “at least somewhat likely,”
in describing the second step of Mathies. Specifically, the court stated
that the Secretary establishes a contribution when he shows that the violation
is “at least somewhat likely to result in harm.” Knox Creek, 811 F.3d at
163.

The Fourth Circuit’s discussion on the second
step of Mathies is brief and merely supplements the court’s primary
discussion regarding other matters. Specifically, the meaning of the second
step was not at issue in Knox Creek; instead the court was concerned
with the application of the third step of Mathies. Id. at 161. The
court only described the second step of Mathies in order to contrast its
purpose with the purpose of the third step. Id. at 162. Thus, nothing in
the case turned on the exact degree of “contribution” in the second step of Mathies,
and the court was not required to analyze the differences between “at least
somewhat likely” and “reasonably likely.”

All Commissioners agree that the Judge must
analyze the likelihood of the occurrence of the hazard at step two of the Mathies
test. It is simply incorrect to assert that the Fourth Circuit “promulgated” a
test for the second step of Mathies in Knox Creek. Slip op. at 20
(Jordan, Chairman, and Cohen, Comm’r, concurring in part and dissenting in
part). As pointed out above, the second step of Mathies was not an issue
in Knox Creek. Neither party briefed step two; the step two test was not
before the court. For that reason, the fact that the Fourth Circuit discussed
the necessity of a likelihood element in step two simply emphasizes that a
review of the likelihood of the occurrence of the hazard is required. Indeed,
the words “at least” show the circuit court was writing in terms of a minimum
standard in discussing a principle not in issue. Those words provide no basis
for an inference that the court was considering changing, let alone intending
to change, our long-existing reasonable likelihood standard in a case where the
issue was not before it. If the court intended to substitute a new standard, it
would have said so.[11]

We note that the Commission itself has never
construed “reasonable likelihood” in a narrow or cramped manner that would
hinder achievement of the Mine Act’s objective of a safe and healthful mining
environment.[12]
That leads us to believe that the Fourth Circuit was not trying to announce any
particular interpretation of the statutory S&S language or draw any
distinctions between degrees of likelihood, but was merely attempting to
describe existing Commission jurisprudence. As a result, we continue to apply
our established standard rather than embracing a different phrasing of the
standard in this case.[13]

We now apply the Mathies test to the
facts of this case.

2.         Application of the Mathies
Test[14]

With respect to the first step of
the Mathies test, Herndon’s actions constituted a violation of a
mandatory safety standard. Specifically, he failed to lock out the shuttle car
cathead while electrical work was being performed, in violation of 30 C.F.R. §
75.511. As a result, the first step of Mathies is met.

The second step of the Mathies
analysis asks whether this failure to lock out the shuttle car cathead during
electrical work contributed to a discrete safety hazard. As noted above, the
specific hazard posed by the violation in this case was that the cathead for
the shuttle car would be re-connected to the power center while miners were
working on the power cables. Therefore, under the second step of Mathies,
the question is whether that hazard was reasonably likely to occur given the
particular facts surrounding this violation. After a careful review of those
facts, we conclude that such an occurrence was reasonably likely.

The relevant facts surrounding this
violation are as follows: The inspector, Herndon, and the shuttle car operator
composed the inspection party. At the outset of the electrical inspection,
Herndon had placed a lock he borrowed from a roof bolter on the shuttle car
cathead so that the cable could be inspected and, if necessary, repaired. He
was unable to remove the key from the lock and so he decided to simply leave it
in place. Tr. 101–05. Inspector Richardson testified that because the key was
left in place, anyone working in the area could have removed the lock from the
cathead, put the cathead back in the power center, and energized the cable. Tr.

58. Roughly 10 people were on the section and many of those miners would not
    have known that cable repair was being made. Tr. 61. Miners were likely to be
    near the power center because, as Richardson testified, this was a location
    where miners congregated to access their lunch buckets. Tr. 63.

Richardson believed that a miner
could “[w]alk by, see the cathead, the shuttle car, and think that the
electrician was working on the shuttle car before he got called to work on the
miner and say, ‘Well, I’ll help him out and I’ll finish re-energizing[15] the cathead
to the shuttle car.’” Tr. 78–79. In doing so, a miner might simply think that
the electrician forgot to remove the key. Tr. 61. Richardson also testified
that miners would be expected to work at the power center in the near future. At
the same time that Herndon was repairing the shuttle car in the fourth entry, a
different electrician, Carpenter, was repairing a continuous miner cable in the
fifth entry. Tr. 34, 75. After Carpenter was finished with his repair he would
have gone to the power center to energize the continuous miner. Tr. 64. Or, he
might have given another miner the key to his lock and asked him to go to the
power center to energize the continuous miner cable. Tr. 64. That assistant
miner might have seen the key in the shuttle car cable lock and energized that
cable because he believed he was assisting the section electrician or because
he had mistaken the shuttle car cathead for the miner cathead. Tr. 64.

These facts compel a finding that
the violation contributed to the hazard of electrical shock. The failure to
remove the key was reasonably likely to result in a miner accidentally or
unknowingly plugging the cable back into the power center. The miner working on
the cable would then be exposed to electrical shock. Therefore, the second step
of Mathies is met.

The Judge made several findings
regarding the likelihood that the cable would be re-energized. Although he did
so in his discussion of the third step of Mathies, as shown above, the
proper place for this analysis is in the second step of Mathies. Therefore,
the Judge’s findings regarding the likelihood of the occurrence of the event
against which the standard is directed will be considered here. In doing so, we
conclude that the Judge’s findings contain legal errors and are not supported
by substantial evidence.[16]

Specifically, the Judge found that the lock,
even with the key in place, constituted a “visual cue to any miner seeing it
that the cathead should not be plugged back in, perhaps similar to the visual
cue a proper tag used to tag out a cable like this would provide.” 35 FMSHRC at
2504. In making this finding, the Judge relied on the fact that the standard at
issue, section 75.511, contains an alternative to locking out, “i.e., it is
acceptable to ‘suitably’ tag a cathead when an actual lock out is not possible.”
Id. The Judge was “convinced . . . that the tagging effect of finding a
lock of any sort on a cathead mitigates against a finding of greater
likelihood.” Id.

It is true that section 75.511 contains an
alternative to locking out. However, this alternative is a narrow exception
that is not applicable here. That section provides that disconnecting
electrical devices should be locked out “except that in cases where locking out
is not possible, such devices shall be opened and suitably tagged.” 30 C.F.R. §
75.511. Therefore, a predicate to the use of tagging out without locking is the
impossibility of locking out. Here, there is no question that locking out was
possible. In fact, Herndon was able to place a lock on the cathead; he claimed
he simply wasn’t able to remove the key. Therefore, the exception to the rule
is not applicable.

The Judge also found that the condition had
existed “for only a few minutes before Herndon told Richardson about it, during
which time no work was done on the power cable.” 35 FMSHRC at 2505–06. This
finding is based on the Judge’s incorrect assumption that Herndon told
Richardson he had left the key in the lock when he returned to the inspection
party. However, the record shows that this assumption is incorrect. Herndon
testified that when he put the lock on the cathead, he was unable to remove the
key, even with the help of channel locks. Tr. 104. He then walked back over to
the shuttle car. Tr. 104–05. He testified that the time between when he left to
place the lock on the cathead and when he returned was approximately three
minutes. Tr. 105. He testified that in that three-minute period, no work was
done on the cable. Tr. 105. However, Herndon did not tell Richardson about the
condition when he returned. In fact, the undisputed evidence is that Richardson
did not learn about the key in the lock until after the repairs were made. Tr.
46, 48–50. That means that all of the repairs were conducted while the key,
unbeknownst to Richardson, was still in the lock. Herndon testified that the
repairs lasted ten minutes. Tr. 108. Although the cuts in the cable may have
taken ten minutes to repair, Richardson estimated that the lock and key were on
the cathead for about 30 minutes during which time he was handling the cable
looking for additional hazardous conditions. Tr. 56–57. Therefore, substantial
evidence does not support the Judge’s finding that no repairs were conducted
while the key was in place or that the condition existed for only a “few”
minutes.

In addition, the Judge found that
from the shuttle car, “a visual observation of the cathead was arguably
possible,” and that the inspection team could have shouted at any miner working
around the cathead, warning that miner not to tamper with the lock. 35 FMSHRC
at 2505. The Judge supported this finding by noting that the mining machine was
turned off and no coal was being produced, meaning that the section would be
much quieter than usual. Id. This would allow the voices of the
inspection team to travel farther. Furthermore, the Judge stated that the power
center was only 55 feet away from the shuttle car. Id.

There are several problems with the
Judge’s finding regarding the inspection party’s ability to see the power
center. First, the Judge’s conclusion is based on disputed and contradictory
evidence. In particular, while Herndon testified that the power center was only
55 feet from the shuttle car, Richardson testified that it was 115 feet away. Tr.
36–37, 102. Further, Herndon testified that he could clearly see the power
center from the shuttle car with his cap lamp, while Richardson testified that
the power center was not visible from the shuttle car because of large blocks
of coal between the entries. Tr. 37, 127–28. In analyzing whether the
inspection crew would be able to verbally warn a miner against re-energizing
the cable, the Judge used the 55-foot distance and also assumed that the
inspection crew would be able to see a miner at the power center.

Regardless of distance and
visibility, the Judge’s conclusions are not supported by substantial evidence. Even
if the power center was only 55 feet from the shuttle car and even if there was
nothing obstructing the view, the evidence would still not support a finding
that the inspection crew could “warn” miners away from the power center. First,
of the three members of the inspection team present, only one, Herndon, was aware
that the key was left in the lock. Tr. 104–05. Richardson only learned of the
condition after the repairs were completed. Tr. 46, 48–50. Perhaps more
importantly, Herndon, the only person in the inspection party aware of the
condition, was busy repairing the cable at the time and might not have been
aware that a miner was approaching the power center. Tr. 105–08. Even if
Herndon happened to notice a miner approaching, he testified that he did not
believe that the key constituted a hazard and therefore would have felt no need
to warn the miner. Tr. 111–12. Thus, substantial evidence does not support the
Judge’s conclusion that the inspection party could warn miners away from the
power center.

The Judge also found that, because the
continuous miner machine was being repaired, there was “less than normal
pressure to keep a production pace, which as a matter of common sense might
reduce a miner’s incentive to cut corners.” 35 FMSHRC at 2506. The Judge
reasoned that without this pressure, there was no known impetus to re-energize
a cable with a lock in it. Id. This conclusion is speculative and is not
based on any evidence in the record. There is no reason to believe that miners
would be more cautious simply because the continuous miner was being repaired. Richardson
testified that the continuous miner being down can, in fact, sow confusion. Tr.
at 61. Substantial evidence does not support the Judge’s assumptions.

Additionally, the Judge found that the miners
would be less likely to re-energize the cable because they were aware that an
MSHA inspector was in the area conducting an inspection. 35 FMSHRC at 2506. The
Judge believed that the presence of the inspector was “far enough out of the
ordinary to override a miner’s being ‘on auto-pilot’ while doing his job to
motivate him to be a bit more perspicacious and cautious than normal.” Id.
Once again, the Judge’s conclusion is speculative. While it is true that miners
were aware that Inspector Richardson was on the section, there is no evidence
to suggest that this would somehow change the way miners would consider a lock
with the key inserted. Further, many mines have federal inspectors present
daily and there is no evidence to suggest that it was out of the ordinary for
an inspector to be at this mine. Even if a mine inspection at this particular
mine was relatively rare, there is no evidence to suggest that the presence of
an inspector would necessarily make miners more cautious. Once again,
substantial evidence does not support the Judge’s assumptions.

Moreover, the Judge found that
miners were trained to know that only the person who placed a lock on a cathead
was permitted to unlock it and re-energize it. Id. at 2503, 2506. The Judge
held that “[a]ll miners are initially trained and subsequently re-trained never
to remove a lock placed by someone else . . . . In order for this element to
fail, a miner must forget or ignore the training.” Id. at 2506.

The Judge’s reliance on the operator’s training
program constitutes legal error. Essentially, the Judge is positing that miners
were trained to be particularly cautious when working with locks on electrical
equipment. However, in Eagle Nest, Inc., 14 FMSHRC 1119 (July 1992), we
held that whether miners would exercise caution is not relevant under the Mathies
test. In fact, the Commission concluded that the consideration of mitigation by
caution would essentially add a new element to the Mathies test. Instead, we held, “[t]he
hazard continues to exist regardless of whether caution is exercised.” Id.
at 1123. The second and third steps of the Mathies test should be
applied by the Judge accordingly. “While miners should, of course, work
cautiously, that admonition does not lessen the responsibility of operators,
under the Mine Act, to prevent unsafe conditions.” Id. We have also held
that “relying on [the] skill and attentiveness of miners to prevent injury
‘ignores the inherent vagaries of human behavior.’” U.S. Steel Mining Co.,
6 FMSHRC 1834, 1838 n.4 (Aug. 1984) (quoting Great W. Elec. Co., 5
FMSHRC 840, 842 (May 1983)).

For those same reasons, we reject
the Judge’s conclusion here that the likelihood of the hazard was lessened by
Newtown’s training regime. The common sense justification for this legal conclusion
is supported by the Judge’s own statement that miners forgetting or ignoring
their training is “something that happens all too frequently.” 35 FMSHRC at
2506. Similarly, Inspector Richardson testified that miners do not always
comply with their training. Tr. 61–62. After all, as Richardson noted, miners
were trained not to leave their key in the lock but Herndon did so anyway here.
Tr. 62–63. Therefore, the Judge committed legal error in his consideration of
the miners’ training as a factor militating against a finding of S&S.

In light of these errors, we conclude that the Judge’s
opinion (and the brief submitted by the operator) does not undermine our
ultimate conclusion reached above: The presence of the key in the lock made it
reasonably likely that the cable would be re-energized.

Having determined that the
Secretary has established the second step of Mathies, we can now turn to
the third and fourth steps to discuss whether it was reasonably likely that the
hazard would result in serious injury. As described above, it is necessary at
this point to assume that the hazard is realized. See Knox Creek, 811 F.
3d at 161–62; Peabody Midwest Mining, LLC, 762 F.3d at 616; Buck
Creek Coal, 52 F.3d at 135. In this case, that means assuming that
the cable was re-energized while miners were working on it.

It is undisputed that Herndon
worked on the cable with a metal knife. Tr. 60. The inspector testified that
there were two separate conditions with the cable creating points of exposure. Tr.

40. The Judge credited this conclusion. 35 FMSHRC at 2497. If someone
    re-energized the cathead while the metal knife or a bare hand was in contact
    with the power conductor inside, the person would become exposed to ground
    voltage and would complete the path for electricity to flow. Tr. 60. While
    Herndon testified that he did not believe he or anyone else was exposed to a
    hazard, he also testified that he would not have touched the inner wires while
    energized because he would not be sure they were free from pinholes and they
    would constitute a shocking hazard. Tr. 132–133. If shocked, the miner would
    come into contact with 277 volts of electricity. Tr. 58. A 277-volt shock would
    be sufficient to cause fatal injury. Tr. 43, 58. In fact, the Judge found that
    the injury would be “potentially fatal.” 35 FMSHRC at 2506.

If the cable at issue had been
energized, it was reasonably likely that Herndon would have been shocked. That
shock would be reasonably likely to result in fatal injury. As a result, the
third and fourth steps of Mathies are established.

Therefore, we reverse the Judge’s
finding that the Secretary failed to prove that the violation was significant
and substantial.

B.        Unwarrantable Failure[17]

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

Whether the conduct is “aggravated”
in the context of unwarrantable failure is determined by looking at all the
facts and circumstances of each case, including (1) the extent of the violative
condition, (2) the length of time that it has existed, (3) whether the
violation posed a high risk of danger, (4) whether the violation was obvious,
(5) the operator’s knowledge of the existence of the violation, (6) the
operator’s efforts in abating the violative condition, and (7) whether the
operator has been placed on notice that greater efforts are necessary for
compliance. Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO
Coal Co., 31 FMSHRC 1346, 1350–57 (Dec. 2009); Cyprus Emerald
Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds,
195 F.3d 42 (D.C. Cir. 1999). These factors need to be viewed in the context of
the factual circumstances of a particular case. Consolidation Coal Co.,
23 FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of
each case must be examined to determine if an operator’s conduct is aggravated
or whether mitigating circumstances exist. Id.

Noticeably absent from the Judge’s unwarrantable
failure analysis was any consideration of Herndon’s position as mine superintendent.[18]
A supervisor is held to a higher standard of care than a rank and file miner, and
as such, evidence of a supervisor’s involvement in the creation of a violative
condition is an aggravating factor that should be considered in conjunction
with the traditional unwarrantable failure factors. See, e.g., Lopke
Quarries, Inc., 23 FMSHRC 705, 711 (July 2001); REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998). Furthermore,
a supervisor’s violative conduct which occurs within the scope of his
employment may be imputed to the operator for unwarrantable
failure purposes. R&P, 13 FMSHRC at 194–97. Therefore, recognition
of Herndon’s position should have played a major role in influencing the
analysis of the traditional factors, such as the operator’s knowledge of the
violation.

In addition, the Judge erred by failing to discuss
the Commission’s established factors for unwarrantable
failure, finding that the “traditional factors .
. . do not lend themselves well to the facts of this case.” 35 FMSHRC at 2508. However,
while a Judge may determine that some factors are not relevant or are less
important than others under the circumstances, “all of the factors must be
taken into consideration and at least noted by the Judge.” IO Coal Co.,
31 FMSHRC at 1351. Regardless of the weight the Judge lends to a factor, the
Judge should at least identify the factors and state the reason for the weight
he assigns. Obviously, the opinion need not be repetitive if the reason for the
weight is the same for a number of factors. However, the Judge should indicate the
weight placed on each factor.

The traditional unwarrantable failure factors
do not lose their relevancy simply because the violative conduct occurred in
the context of an inspection. The extent of the violation, the length of time
the violation existed, whether the violation was obvious, the operator’s
knowledge of the violation, whether the operator was attempting to abate the
violation prior to the issuance of the citation, and whether the operator had
in the past been placed on notice of similar failures to properly lock and tag
out equipment are all discernible when violative conduct occurs in such a
context. Furthermore, each factor poses a separate and distinct question that,
when taken together, helps to form a greater understanding of whether the
operator’s conduct was aggravated.

Given the absence of analysis of the fact that Herndon
was the mine superintendent and of meaningful findings on many of the traditional
unwarrantable failure factors, we remand the
determination of unwarrantable failure. On remand, the Judge shall examine the
evidence as to each of the unwarrantable failure factors with the recognition
that the violation was attributable to the superintendent of the mine.

C.        Civil Penalty[19]

Pursuant to section 110(i) of the Mine Act, the
Commission, in assessing a civil penalty, considers six factors including the negligence
and gravity of the violation. Here, the Secretary challenges the Judge’s
reduction of the penalty to $207, specifically challenging the findings as to
negligence and gravity. We agree that the Judge erred in changing the
evaluation of Newtown’s negligence from “high” to “low.” 35 FMSHRC at 2500–03. With
regard to gravity, we agree that the Judge erred in finding that an injury was
unlikely to occur, even though it would be potentially fatal. Id. at 2503–04.

1.         Negligence

In analyzing an operator’s degree
of negligence, the Commission has recognized that “[e]ach mandatory standard .
. . carries with it an accompanying duty of care to avoid violations of the
standard, and an operator’s failure to meet the appropriate duty can lead to a
finding of negligence if a violation of the standard occurs.” A.H. Smith
Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator
met its duty of care, we consider what actions would have been taken under the
same circumstances by a reasonably prudent person familiar with the mining
industry, the relevant facts, and the protective purpose of the regulation. Brody
Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015) (citations omitted);
U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).

However, we have long recognized
that mine management should be held to an even higher standard of care. See
Midwest Materials Co., 19 FMSHRC 30, 35 (Jan. 1997) (“a foreman . . . is
held to a high standard of care”). The Mine Act places primary responsibility
for maintaining safe and healthful working conditions in mines on operators,
with the assistance of their miners. 30 U.S.C. § 801(e). “Managers and
supervisors in high positions must set an example for all supervisory and
non-supervisory miners working under their direction. Such responsibility not
only affirms management’s commitment to safety but also, because of the
authority of the manager, discourages other personnel from exercising less than
reasonable care.” Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987).

Substantial evidence does not
support the Judge’s finding that the violative condition was the result of a
low degree of negligence on the part of Newtown. It is clear from the record
that Herndon, a certified electrician, failed to meet the high standard of care
befitting his position as the mine’s superintendent. Herndon knew that leaving
the key in the lock was a violation of federal regulations. Tr. 119. See
Deshetty, employed by Island Creek Coal Co., 16 FMSHRC 1046, 1053 (May
1994) (concluding that actual knowledge of violative conditions and failure to
act constituted high negligence). He failed to
demonstrate good faith because he did not inform Richardson that he was unable
to procure a functional lock. Furthermore, despite his position and experience
as an electrician, Herndon failed even to recognize the danger the faulty lock
posed. Tr. 111. Not only did his actions put him in danger of serious bodily
harm, they also set a poor example for the miners under his supervision.

The Judge erred in finding that the
standard of care expected of Newtown was diminished because the violation
occurred in the course of an MSHA inspection of the trailing cable.[20]
It is indisputable that the violative condition was the product of Herndon’s
decisions alone. Richardson did not instruct Herndon to use the defective lock,
nor did he improperly pressure Herndon to utilize the most expedient means to
facilitate the inspection. Further, the Judge erred in characterizing Herndon
as a “deputized” agent of Inspector Richardson. See 35 FMSHRC at 2499–500.
Rather, Herndon’s participation in the inspection was voluntary pursuant to
section 103(f) of the Mine Act, 30 U.S.C. § 813(f), and Herndon was not at risk
of sanction were he to report to Richardson that he was unable to locate a
functional lock. Tr. 144–45. Because the Judge shifted part of the blame for
the violation to Richardson, he failed to recognize the implication of his
finding that Herndon “cut corners.” 35 FMSHRC at 2502.

The Judge also found that leaving the
key in the lock should be considered an element of mitigation because it
represented something akin to tagging the cathead within the meaning of 30
C.F.R. § 75.511, thus acting “as a signal to anyone seeing it that something
out of the ordinary was going on.” 35 FMSHRC at 2502–03. However, the key in
the lock was not intended as a “signal” like tagging. Herndon left the key in
the lock simply because he could not get it out.

Finally, the Judge found, as an
element of mitigation, that the faulty lock was on the cathead for only a short
period of time. Id. at 2503. While the length of time of the violation
is relevant to the issue of unwarrantable failure, it has little relevance to
negligence, especially where Herndon testified that “there was no danger” in
leaving the key in the lock. Tr. 111.  

Although Herndon partially complied
with section 75.511 by de-energizing the trailing cable and placing a lock,
albeit defective, on the cathead, this fact alone does not preclude a finding
of high negligence.[21]
As we have repeatedly held, the Commission and its Judges are not bound to
apply the regulations in 30 C.F.R. Part 100 that MSHA uses to calculate most
proposed penalties. See, e.g., Brody Mining, 37 FMSHRC at 1701–03.
We have explained that an ALJ “is not limited to an evaluation of allegedly
‘mitigating’ circumstances” and should consider the “totality of the
circumstances holistically.” Id. at 1702; Mach Mining, LLC v. Sec’y
of Labor, 809 F.3d 1259, 1264 (D.C. Cir. 2016). A finding of high
negligence may be made in spite of mitigating circumstances. Brody Mining,
37 FMSHRC at 1702–03. Instead, the real 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).

Accordingly, we find that the
operator failed to meet its duty of care and that Herndon’s actions in his
position as mine superintendent require a finding of high negligence.

2.         Gravity

The
gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. §
820(i), “is

often
viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC

1541,
1549 (Sept. 1996) (citing
Sellersburg Stone Co.,
5 FMSHRC 287, 294–95 (Mar. 1983),

aff’d,
736 F.2d 1147 (7th Cir. 1984); Youghiogheny
& Ohio Coal Co.,
9 FMSHRC 673, 681

(Apr.
1987)). The gravity analysis focuses on factors such as the likelihood
of injury, the severity of an injury if it occurs, and the number of miners
potentially affected. Here, the Judge concluded that if an injury occurred it
would be potentially fatal and would affect one miner, but that an injury was
unlikely to occur. 35 FMSHRC at 2503.

The
Judge reached his conclusion by noting that, despite the fact that Herndon’s actions
placed him at risk of serious electric shock or electrocution, it was unlikely
that the power cable would have been re-energized. However, for the reasons set
forth in our S&S analysis, we find that substantial evidence does not
support the Judge’s conclusion that an injury-causing event was unlikely.
We vacate this finding and conclude that the gravity of this violation was high:
a potentially fatal injury to one miner was reasonably likely to occur.

Accordingly, we reverse the Judge’s findings as
to negligence and gravity and remand for a reassessment of the civil penalty.

III.

Conclusion

For the foregoing reasons, we: (1) reverse
the Judge’s findings on S&S, and reinstate the S&S designation for the
violation; (2) vacate and remand the unwarrantable failure determination for further
proceedings consistent with this decision; and (3) vacate and remand the civil
penalty for reassessment consistent with the negligence and gravity findings in
this decision and (if unwarrantable failure is found) the statutory minimum
penalty for section 104(d)(1) citations and orders. See 30 U.S.C. §
820(a)(3)(A).

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/ Michael G.
Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

Chairman Jordan and Commissioner Cohen, concurring in part
and dissenting in part:

While we join Commissioner Nakamura in finding
that the violation was S&S, we write separately because we disagree with
the interpretation of the second step of the S&S test in Mathies Coal
Co., 6 FMSHRC 1, 3–4 (Jan. 1984), set forth by the majority on this
issue (Commissioners Young, Nakamura, and Althen). In our view, all that is
required to establish the second Mathies step is that the violation be
shown to be “at least somewhat likely to result in harm,” as stated by the
Fourth Circuit in Knox Creek Coal Corp. v. Secretary of Labor, 811
F.3d 148, 162 (4th Cir. 2016).

As our colleagues state, in the second step of
the Mathies test, the question is whether the violation contributes to a
particular hazard. This step is primarily concerned with likelihood, that is,
the extent the violation increases the likelihood a hazardous condition will
occur. Id. at 162. In the third and fourth steps, the violation is no
longer the explicit concern of the analysis; the question instead is whether
the previously identified hazard is reasonably likely to result in a reasonably
serious injury. See Cumberland Coal Res., LP, 33 FMSHRC 2357,
2365, 2370 (Oct. 2011), aff’d, 717 F.3d 1020 (D.C. Cir. 2013) (citing Musser
Eng’g, Inc. & PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010)); Knox
Creek, 811 F.3d at 162 (“Requiring a showing at [step] three that the
violation itself is likely to result in harm would make [step] two
superfluous.”). These steps are primarily concerned with gravity. Knox Creek,
811 F.3d at 162.

We also agree with our colleagues that under the
Mathies test, it is essential for the Judge to adequately define the
particular hazard that is allegedly contributed to by the violation. Establishing
a clear definition of the hazard at issue provides something tangible that the
violation’s contribution can be measured against in the second step analysis. In
the instant proceeding, the Judge did not articulate the hazard at issue. On
that point, he simply asserted, “[i]t is a discrete safety hazard to perform
electrical work on equipment without locking or tagging it out.” 35 FMSHRC
2494, 2505 (Aug. 2013) (ALJ). The Judge’s statement of the hazard is
insufficient as it does not specify the danger facing miners.

Additionally, we agree with our colleagues that
the starting point for determining the hazard is the regulation cited by MSHA. The
“hazard,” for purposes of the Mathies analysis, is the danger which the
cited safety standard is intended to prevent. Section 75.511, the standard
violated here, requires, among other things, that electrical equipment be
locked out and tagged out while electrical work is performed. The requirement
of lock out and tag out is to ensure that power will not be restored during
electrical work. Under the plain wording of the standard, it is not sufficient
for someone performing electrical work to simply de-energize the equipment. Hence,
as the majority correctly acknowledges, the specific hazard in this case is
that the cathead for the shuttle car would be re-connected to the power center,
thus re-energizing the cable which Richardson was inspecting and Herndon was
repairing. As Inspector Richardson testified, “[w]ith the key being left in the
lock[,] anyone could have removed the lock from the cathead, put the cathead
back in the power center and energized the cable.” Tr. 58.

After identifying the specific hazard, the next
step is to conduct the likelihood analysis in light of that hazard. To that
end, the trier of fact must determine whether the Secretary has proven that the
violation contributed to that hazard. It is at this point in the analysis that
we disagree with our colleagues.

In Knox Creek, the Fourth Circuit held
that the Secretary establishes a “contribution” for the purposes of the second step
of Mathies when he shows that the violation is “at least somewhat likely
to result in harm.” Knox Creek, 811 F.3d at 162, 163. Similarly, in Peabody
Midwest Mining, LLC v. FMSHRC, the Seventh Circuit held that “[a] violation
is significant and substantial if it could lead to some discrete hazard,
the hazard was reasonably likely to result in injury, and the injury was
reasonably likely to be reasonably serious.” 762 F.3d 611, 616 (7th Cir. 2014) (emphasis
added). We find the standard put forth by the Fourth and Seventh Circuits to be
similar and would apply this standard of proof for the second step of Mathies.
In short, a violation “contributes” if it is at least somewhat likely to result
in, or could result in, a safety hazard. In adopting this language, we note
that this standard is in harmony with the wording of section 104(d) of the Mine
Act. 30 U.S.C. § 814(d)(1) (“[S]uch violation is of such nature as could
significantly and substantially contribute to the cause and effect of a . . .
safety or health hazard . . . .”) (emphasis added).[22]

Regarding Knox Creek, our
colleagues state that the Fourth Circuit’s discussion of the second step of Mathies
cannot be taken as intending to change our “long-existing reasonable likelihood
standard,” and merely supplements the court’s primary analysis. Slip op. at 7–8.
We disagree. While the term “reasonable likelihood” is longstanding in our
jurisprudence, its traditional use in the third step of the Mathies test
rather than the second step makes its meaning in the latter context far from
clear. The question of what is meant by a hazard “contributed to by the
violation” has not heretofore been addressed by the Commission, and has not
been specifically equated with “reasonably likely.”

Moreover, Knox Creek contains a thorough
discussion of the Mine Act’s S&S provision, and Commission decisions
interpreting that provision. The Fourth Circuit stated that the evidentiary
test for the second step of Mathies is “at least somewhat likely to
result in harm” in two separate places within its opinion. 811 F.3d at 162,

163. The Commission should not ignore the test promulgated by the Fourth
     Circuit in Knox Creek.  

As explained in the Commission’s opinion, the
Judge made several erroneous findings regarding the likelihood that the cable
would be re-energized. Although he did so in his discussion of the third step
of Mathies, as shown above, the proper place for this analysis is in the
second Mathies step. Therefore, we would have considered the Judge’s
findings regarding likelihood in the context of the second step analysis. In
doing so, we conclude that the Judge’s findings contain legal errors and are
not supported by substantial evidence. We conclude that the violation was
S&S under the majority’s “reasonably likely” test for the second step of Mathies
as well as under the “at least somewhat likely” test which we would prefer to
have the Commission adopt.

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

Commissioners Young and Althen concurring in part and dissenting in
part:

We concur with Parts A.1 and B of the
opinion. For the reasons set forth below, we dissent with regard to Parts A.2
and C.

A.        Substantial Evidence Supports the
Judge’s Decision that the Violation Was Not          Significant and
Substantial

This is a substantial evidence case. We
agree with the majority that defining the hazard is the first step in
determining whether a violation is reasonably likely to result in the
occurrence of the hazard against which a standard is directed. We further agree
that the hazard in this case was the danger that Herndon or the shuttle car
operator would work on energized equipment.

Therefore, under the Commission’s
articulation of the significant and substantial test, the evidence must
preponderate that, upon the particular facts and circumstances of the case, it
was reasonably likely that Herndon would work on energized equipment. Here, the
Judge focused on the likelihood of the occurrence of the hazard. He analyzed
the facts, made findings, and rendered his decision based upon the particular
facts surrounding the violation. Substantial evidence supports his finding that
the violation was not reasonably likely to result in Herndon or the shuttle car
operator working on the shuttle car while it was energized.

Because this is a substantial evidence
case, our analysis must be whether, in light of the evidence placed before the
Judge, a reasonable mind might accept such evidence as “adequate to support
[the Judge’s] conclusion” that there was not a reasonable likelihood of the
occurrence of the hazard under the facts related to the violation. Rochester
& Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidation
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Without doubt, a reasonable
person could, indeed would, arrive at the same conclusion as the Judge that the
facts do not demonstrate any measurable likelihood that Herndon or the shuttle
car operator faced a danger of working on energized equipment during the
inspector’s brief inspection.

Based upon evidence in the record
cited and relied upon the Judge, he found:

1. No mining was occurring. Other than
the two miners with the inspector, all miners were a substantial distance from
the power center as they were located with the mining machine shut down for maintenance.
Tr. 90, 99. Further, the Judge found, “[t]here was no known impetus to re-energize
a cable with a lock on it.” 35 FMSHRC 2494, 2506 (Aug. 2013) (ALJ). Thus, based
on the evidence, the Judge determined there was no miner near the power center
and no reasonable likelihood a miner would go near the power center during the
brief inspection. The majority conveniently ignores the time it took to perform
the inspection. A reader of the majority opinion might assume that it was
expected to go on for hours. In fact, it lasted a brief period, and, even then,
took only minutes, at most, to do a brief repair. Of course, an accident only
takes an instant. Here, however, the facts are that miners were far removed
from the power center and had no reason to return to it during the period of
the inspection or to make the gross mistake of energizing the shuttle car if by
some remote chance a miner returned.

2. Because the power center was only
55 feet from the shuttle car, in the very unlikely event a miner did approach
the power center, the Judge found the supervisor and shuttle car operator could
see them and notify them of the inspection of the shuttle car. Id. at
2505. In fact, the Judge further found that the miners were aware that an
inspector was on the section, so such an alert may not even have been
necessary.

3. The operator had labelled all catheads
and receptacles at the power center. Tr. 89. The catheads and the receptacles
at the power center clearly designated both the cathead that went to the
shuttle car and the receptacle for the shuttle car cathead. Similarly, specific
labels displayed all other equipment receptacles.

4. Herndon had removed the cathead for the
shuttle car, labelled as described above, from the power center and laid it on
the floor of the mine. Tr. 103, 111.

5. In fact, Herndon locked out the
cathead. Herndon had placed and locked a lock on the cable. The labelled
shuttle car receptacle was empty and the labelled and locked cathead was lying
on the floor. Tr. 103–04. Therefore, any approaching miner would have
confronted a locked out cable labelled for the shuttle car. Such a lock
actually does far more than “alert” miners to the out of service status of the
cathead. Because the key was in the lock, the lock could be removed. However,
such action would require a miner to physically turn the key and remove the
lock from the labelled cathead lying on the floor. He would then have to have
inserted the labelled cable into a labelled receptacle for a piece of equipment
upon which he was not working, the shuttle car.

Therefore, for the violation to result in
Herndon working on energized equipment during the inspection, several events,
none of which was individually reasonably likely to occur, would all
have to have occurred. During a brief period, a miner, however unlikely and
without reason, would have to have travelled to the power center. The inspector
and the two miners would have to have not seen him. That miner, who would have
had no work to do with the shuttle car, would have had to pick up the cathead
clearly labelled for the shuttle car from the floor of the mine. Then, the
miner would have to take the lock off the labelled cathead by turning the key
and removing the lock. Then, he would have to have plugged the cathead into a
receptacle labeled for the shuttle car and turned on power to the shuttle car.

Not only is the foregoing sequence of
events not reasonably likely but also such an action would violate the most
basic training given miners. In this respect, the Commission previously has
discounted the possibility of gross neglect as a basis for an S&S finding:

Substantial evidence supports the Judge’s implicit finding that
the only possibility through which miners could have been exposed to a hazard
from the cut in the cable was if a mine repairman were willfully grossly
neglectful in completing repairs under an action plan that was underway. The
possibility of such willful gross neglect in ongoing repairs does not provide
grounds to overturn the Judge’s finding that that the Secretary did not carry
his burden of proof.

Knox Creek Coal Corp., 36 FMSHRC
1128, 1139 (May 2014), aff’d, 811 F.3d 148 (4th Cir. 2016). Without
doubt, taking a labelled and locked cathead from the floor of the mine,
removing the lock, and inserting the cathead into a plug for equipment a miner is
not using, and has no reason to use, would be grossly neglectful.[23]

Thus, the Judge correctly followed
Commission case law and applied the applicable reasonably likely standard to
the likelihood of the occurrence of the hazard. He considered all the evidence
and evaluated whether, “under the particular facts surrounding the violation,”
there was a reasonable likelihood of an event causing an injury—that
is, the occurrence of a hazard of working on energized equipment. He noted
correctly that it is the Secretary’s job to prove through the particular facts
that the violation was reasonably likely to cause such an occurrence rather
than the operator’s job to prove injury was unlikely. It is not sustainable for
the majority to find that a reasonable person reviewing the evidence could not reach
such a conclusion.

The Commission majority chooses to
defy logic and disregard the substantial evidence rule in order to reverse the
Judge’s eminently reasonable decision. We dissent.

B.        Civil Penalty

1.         The Issue of Negligence
Should be Remanded

While we would not hold the violation to
be S&S, we would vacate and remand the Judge’s finding of low negligence
for reconsideration. There may be some argument about the precise level of
negligence implicated by Herndon’s conduct here, but the Judge had a duty to
assess independently the operator’s negligence in light of all of the relevant
facts and circumstances.

Herndon was superintendent. He had
responsibility for ensuring compliance with the Act and yet failed to comply
fully with the requirement to lock and tag out electrical equipment while
working on the equipment. This failure might have been mitigated by telling the
inspector about the status of the lock or taking other measures to foreclose
the possibility that the keyed lock might be removed and the cathead connected
to the power. It is possible that Herndon did put a tag on the lock—as we have noted, the record is inconclusive—but
he allowed the inspector to work on the cable without fully assuring that the
lock could not be removed.

In light of this failure by the
superintendent, we could not find the negligence to be low. It may be either
moderate or high negligence. We believe a remand is necessary for the Judge to
consider the violation and Herndon’s actions in the context of his position and
responsibilities as a supervisor and to determine independently the operator’s
level of culpability.

2. Gravity

For the reasons set forth
above, we conclude that substantial evidence supports the Judge’s finding that
the violation was not S&S. At the same time, we agree that the gravity
requires consideration of a number of factors. For that reason, we join in a
remand for re-evaluation of gravity in considering the appropriate civil
penalty.

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner

Chairman
Jordan and Commissioner Nakamura, concurring in part and dissenting in part:

We join Commissioner
Cohen in vacating the Judge’s finding that the violative condition was the
result of low negligence on the part of Newtown, and we agree that a finding of
high negligence is required and that the violation was significant and
substantial. We write separately because we find that the violation was due to
the operator’s unwarrantable failure.

As our
colleagues correctly state, slip op. at 14, unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Emery Mining Corp.,
9 FMHRC 1997, 2001 (Dec. 1987). It is characterized by “reckless disregard,”
“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.”
Id. at 2003–04; IO Coal Co., Inc., 31 FMSHRC 1346, 1350 (Dec.
2009).

In this
case, Robert Herndon, a mine superintendent (who was a trained electrician), in
attempting to lock out a shuttle car cathead at a power station, intentionally
left the key in the lock. Tr. 30–31, 104–05, 110–11. As the Judge noted,
Herndon conceded that leaving the key in the lock on the cathead would violate
federal law if electrical work was being performed because someone could remove
the lock and re-energize the line. 35 FMSHRC 2494, 2498 n.3 (Aug. 2013) (ALJ) (citing
Tr. 119–20).[24]
Adding insult to injury, he had been asked to lock out the cathead by an MSHA
inspector who needed to inspect a trailing cable, and he told the inspector
that he had locked and tagged out the cathead. Tr. 38, 49–50. However, by
leaving the key in the lock, he created a hazardous condition, because another
miner could have come to the power station, removed the key, and energized the
cable.[25]
Tr. 58–60.

We find
it deeply troubling that a mine superintendent could demonstrate such a
disregard for the safety of the inspector and of the other miners. Even the Judge,
who determined that the violation was not the result of unwarrantable failure,
concluded nonetheless that:

Herndon’s
choice of means to comply with [the inspector’s] directive was wrong under the
circumstances. Based on his experience and training, he could have done
something different that would have facilitated the inspection without creating
a potential hazard. He chose a method that increased the likelihood of an
injury-causing event. He cut corners in an attempt to facilitate [the]
inspection.

35 FMSHRC at 2502
(citations and footnotes omitted).

The
Commission’s admonition in Wilmot Mining Co., 9 FMSHRC 684 (Apr. 1987), bears
repeating:

We
emphasize that managers, such as Schrock, who was superintendent and overall
supervisor of the pit operation, must be held to a demanding standard of care
in safety matters. Managers and supervisors in high positions must set an
example for all supervisory and non-supervisory miners working under their
direction. Such responsibility not only affirms management’s commitment to
safety but also, because of the authority of the manager, discourages other
personnel from exercising less than reasonable care.

Id. at 688; see
also Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) (“Because
supervisors are held to a high standard of care, another important factor
supporting an unwarrantable failure determination is the involvement of a
supervisor in the violation.”) (citing REB Enters., Inc., 20 FMSHRC 203,
225 (Mar. 1998) (Commissioner Marks, dissenting)).

Accordingly,
when the mine superintendent in this case did not properly lock out and tag out
the cathead, and then failed to inform the inspector that the cathead was not locked
and tagged out, we determine that, pursuant to longstanding Commission
precedent regarding the involvement of high level managers in violations, the
record compels the conclusion that this constituted an unwarrantable failure.[26]

For our
purposes, the analysis need go no further. However, we wish to address the
decision of our colleagues to remand this case rather than reversing the Judge
and finding unwarrantable failure. They remand and instruct the Judge to
examine the evidence as to each of the unwarrantable failure factors, while
recognizing that the violation was caused by the mine’s superintendent. Slip
op. at 14–15.

The
factors to which they refer are used by the Commission and its Judges to
determine whether conduct is aggravated in the context of unwarrantable
failure. They include: (1) the extent of the violative condition; (2) the length
of time that it has existed; (3) whether the violation posed a high risk of
danger; (4) whether the violation was obvious; (5) the operator’s knowledge of
the existence of the violation; (6) the operator’s efforts in abating the
violative condition; and (7) whether the operator has been placed on notice
that greater efforts are necessary for compliance. Manalapan Mining Co., 35
FMSHRC 289, 293 (Feb. 2013); IO Coal, 31 FMSHRC at 1351–60; Cyprus
Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other
grounds, 195 F.3d 42 (D.C. Cir. 1999).

Although
these factors are usually helpful in analyzing whether a violation is due to an
unwarrantable failure, they should not operate as a rigid checklist, especially
in a case such as this, where the mine superintendent deliberately violated the
standard.

Even applying
the usual factors, however, we believe it unnecessary to remand to the Judge to
make further findings. Nobody disputes that the potential hazard posed a high
risk of danger—indeed, of electric shock. The Commission
has often relied upon the high degree of danger posed by a violation to support
a finding of unwarrantable failure. See, e.g., Midwest Material Co.,
19 FMSHRC 30, 34–37 (Jan. 1997) (finding that the record compelled the
conclusion that a foreman’s conduct reflected reckless indifference and a
serious lack of reasonable care when it resulted in a miner working directly
underneath unsecured heavy equipment to dismantle it); BethEnergy Mines,
Inc., et al., 14 FMSHRC 1232, 1243–44 (Aug. 1992) (finding unwarrantable
failure where the unsaddled beams presented a danger to miners entering the
area); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992)
(finding violation to be aggravated and unwarrantable based upon common
knowledge that power lines are hazardous and precautions are required when
working near them with heavy equipment); Quinland Coals, Inc., 10 FMSHRC
705, 708–09 (June 1988) (finding unwarrantable failure where highly dangerous
roof conditions were present).

Moreover,
the operator’s knowledge of the existence of the violation is uncontroverted,
as it was caused by the mine superintendent.[27]
In addition, the violation (caused by leaving the key in the lock) was obvious,
as the lock was clearly being used to ensure electrical equipment was
de-energized. Tr. 46, 110–11.

Even
assuming that the unwarrantable factors must be taken into account in this
case, the evidence regarding these three factors alone would require a
determination that the violation was unwarrantable. The Commission reached a
similar conclusion in Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999), aff’d,
229 F.3d 1141 (4th Cir. 2000) (unpublished). In that case, a foreman failed to
de-energize equipment before doing mechanical work. Id. at 892. We noted
that as a supervisor, the foreman had been entrusted with augmented safety
responsibility and was obligated to act as a role model for a subordinate who
was watching him. Id. at 893.

In
upholding the Judge’s finding of unwarrantable failure, the Commission
concluded that the supervisor’s failure to de-energize the rail in the face of
obvious and dangerous hazards supported the Judge’s determination.[28] Id.
at 893–95. We emphasized that, consistent with Commission precedent on
unwarrantable failure, we needed to apply only those factors relevant to the
facts of the case. Id. at 893, n.13 (citing Lafarge Constr.
Materials, 20 FMSHRC 1140, 1147 (Oct. 1998) (holding that for violations
involving high danger of which a foreman should have been aware, other factors
may be less relevant)).

In
summary, we see no need to remand this case and require the Judge to examine
evidence regarding each of the unwarrantable failure factors. The Commission
has not hesitated to reverse a Judge’s finding of no unwarrantable failure when
faced with compelling evidence to the contrary. See, e.g.,
Consolidation Coal Co., 22 FMSHRC 328, 334 (Mar. 2000) (reversing Judge’s
finding that a violation of a standard requiring the operator to maintain a
supply of supplementary roof support material was not due to unwarrantable
failure); Jim Walter Res., Inc., 19 FMSHRC 480, 487–89 (Mar. 1997)
(reversing Judge’s conclusion that coal accumulation violations were not the
result of unwarrantable failure); Midwest Material, 19 FMSHRC at 34–37
(reversing Judge’s determination that a violation of a standard requiring that
in certain circumstances, mechanical equipment be blocked or mechanically
secured to prevent it from rolling or falling, was not the result of the
operator’s unwarrantable failure). Similarly, remand is not necessary here,
where the superintendent’s actions demonstrated a reckless disregard for safety
constituting an unwarrantable failure. See American Mine Servs., Inc.,
15 FMSHRC 1830, 1834 (Sept. 1993) (remand not necessary when the record
supports no other conclusion).

/s/ Mary Lu Jordan

Mary
Lu Jordan, Chairman

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Commissioner

[1]
A majority of the Commissioners joins in each section of this opinion, and
therefore it constitutes the Commission’s decision in this case. A footnote at
the beginning of each section and subsection explains which Commissioners join
in that section.

[2] A shuttle car is a vehicle on rubber tires or
continuous treads used to transfer material such as coal and ore, from loading
machines in trackless areas of a mine to the mine’s main transportation system.
Am. Geological Institute, Dictionary of Mining, Minerals, & Related
Terms 504 (2d ed. 1997).

[3] 30 C.F.R. § 75.511 states:

No
electrical work shall be performed on low-, medium-, or high-voltage
distribution circuits or equipment, except by a qualified person or by a person
trained to perform electrical work and to maintain electrical equipment under
the direct supervision of a qualified person. Disconnecting devices shall be
locked out and suitably tagged by the persons who perform such work, except
that in cases where locking out is not possible, such devices shall be opened
and suitably tagged by such persons. Locks or tags shall be removed only by the
persons who installed them or, if such persons are unavailable, by persons
authorized by the operator or his agent.

[4] A cathead is the
“connecting plug” permitting an electrical cable to be attached to a receptacle
on a power station. Tr. 15, 17.

[5] The S&S
terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1),
and distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.”

[6] The
unwarrantable failure terminology is taken from section 104(d)(1) of the Act,
30 U.S.C. § 814(d)(1), and 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.”      

[7] Commissioners Young, Nakamura, and Althen join in
this interpretation of the Mathies test.

[8]
As discussed infra, we now consider the proper focus of the second step
of the Mathies test to be the likelihood of the occurrence of the hazard
the cited standard is designed to prevent. In the past, the Commission
considered in the third step of Mathies both whether there was a
reasonable likelihood that the hazard contributed to by the violation would
occur and whether there was a reasonable likelihood that that occurrence
would result in injury. See U.S. Steel Mining Co., 6 FMSHRC 1834, 1836
(Aug. 1984) (the third step “requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in
which there is an injury.”) (emphasis added). As a result, for many years the
second step was often a given in the S&S analysis. Indeed, the second step
was not contested in this case or in Knox Creek Coal Corp. v. Sec’y of Labor,
811 F.3d 148, 154, 161-62 (4th Cir. 2016). Following the Commission’s decisions
in Musser and Cumberland, infra, that combined analysis
was split between the second and third steps. Consideration of whether the
hazard was reasonably likely to occur is now moved to the second step. Consideration
of whether an injury was reasonably likely in the event of that occurrence
remained in the third step. However, the ultimate inquiry has not changed.

[9]
This is not a situation like a respirable dust violation, Consolidation Coal
Co., 8 FMSHRC 890, 898 (Jun. 1986), or a pre-shift examination violation, Manalapan
Mining Co., 18 FMSHRC 1375, 1388–98 (Aug. 1996) (Jordan and Marks, Comm’rs, concurring in part and
dissenting in part), where the hazard may be presumed from the fact of
the violation. Here, the Secretary must prove that the violation contributes to
the hazard.  

[10]
An unwarrantable failure refers to more serious
conduct by an operator in connection with a violation. It is “more than
‘ordinary negligence.’” Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec.
1987). Therefore, the Judge must determine the degree of negligence.

[11]
The restraint the court displayed in its discussion of this issue is consistent
with its thoughtful and well-reasoned opinion.

[12]
For example, the Commission has
repeatedly held that “reasonable likelihood” does not mean more probable than
not. U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996); Amax Coal Co., 19 FMSHRC 846, 848-49 (May
1997). Further, we apply certain assumptions in determining reasonable
likelihood, such as the presumption that the violation will continue unabated
in the course of continued mining operations. Black Beauty Coal Co., 34
FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest Mining,
LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 11
FMSHRC 1432, 1435 (Aug. 1989). Additionally, we do not take into account the
existence of redundant safety measures. Knox Creek, 811 F.3d at 162, aff’g
36 FMSHRC 1128 (May 2014).

[13]
Because Knox Creek was issued after briefing in this case was completed,
we have not yet heard from the Secretary, the operators, or others in the
regulated community on this issue. For example, inspectors now evaluate the
likelihood aspect of gravity under the penalty criteria in terms of “reasonably
likely.” We do not know how or whether adopting an “at least somewhat likely”
standard for the second step of Mathies would impact the assessment of
gravity by MSHA inspectors. Nonetheless, we do not foreclose the possibility of
making changes in our application of the Mathies test in the future if
circumstances warrant such a change.

[14]
Chairman Jordan and Commissioners Cohen and Nakamura join in reversing the
Judge’s S&S findings. Commissioner Nakamura finds that the violation was
S&S applying the “reasonably likely” standard for step two of the Mathies
test. Chairman Jordan and Commissioner Cohen find that the violation is S&S
applying either the “reasonably likely” or the “at least somewhat likely”
standard which they discuss in a separate opinion, infra, for step two
of the Mathies test.

[15]
The transcript quotes the inspector as saying “finish de-energizing the cathead.”
Tr. 79. However, just before this, the inspector was agreeing that someone
could walk by the power center and think that he was helping the electrician by
“re-energiz[ing]” the cathead. Tr. 78. In context, it is clear that
“de-energizing” was a typographical error by the Court Reporter.

[16]
When reviewing an administrative law judge’s factual determinations, the
Commission is bound by the terms of the Mine Act to apply the substantial
evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means
“‘such relevant evidence as a reasonable mind might accept as adequate to
support [the Judge’s] conclusion.”’ Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal
must consider anything in the record that “fairly detracts” from the weight of
the evidence that supports a challenged finding. Midwest Material Co.,
19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)).

[17] Commissioners
Young, Cohen, and Althen vacate and remand the Judge’s finding regarding
unwarrantable failure.

[18]
Consideration of Herndon’s supervisory role is of even greater importance given
his role at the mine. Herndon was the mine’s superintendent. With the exception
of the mine manager, every employee at the mine was under his authority. Tr.

31. He is also a certified electrician, and thus would have been in a better
    position to influence his subordinates’ approach to addressing electrical
    hazards.

[19] Chairman Jordan and Commissioners Cohen and Nakamura join
in reversing the Judge’s findings regarding negligence and gravity.

[20] Given the highly regulated nature of underground coal
mines, MSHA inspections occur with enough frequency to be considered a part of
the normal mining cycle. Furthermore, the duty to inspect and repair the
trailing cable existed independently of the inspection. As such, we see no need
to treat the fact that the violation occurred in the context of an inspection
as a mitigating factor.

[21]
“Locking out” with a defective lock is analogous
to using the wrong size of roof bolts. In both instances, the negligence is not
diminished by a miner’s clearly ineffective effort to comply with the safety
standard.

[22]
We recognize that, in the past, the Commission has been reluctant to hold that
a violation was S&S based on a finding that it “could” result in an
injury-causing event. See, e.g., Zeigler Coal Co., 15 FMSHRC 949,
953 (June 1993) (“A reasonable likelihood of an ignition is [a] necessary
precondition to the reasonable likelihood of an injury.”). However, as the
court in Knox Creek pointed out, that holding is inconsistent with our
holding in Musser. 811 F.3d at 164.

[23]
Eagle Nest, Inc., 14 FMSHRC 1119 (July 1992), cited by the majority,
is not remotely relevant. Slip op. at 12. That case involved a presumption by
the Judge that a miner would walk cautiously once he entered water that
presented a substantial hazard of slipping. The issue was the likelihood of an
injury where the occurrence of the hazard was conceded, and, therefore,
involved caution by a miner already in a hazardous situation. Id. at
1123. This case is not remotely similar to a miner’s action when caught in a
hazardous situation. Creation of a hazard in this case could occur only if a
miner: (1) without reason to do so returned to the power center, (2) was not
spotted by Herndon who had a clear view, (3) picked up a labelled and locked
cathead with which he was not working from the mine floor, (4) contrary to all
training and commonsense unlocked it (5) inserted it into the receptacle, (6)
re-energized equipment with which the miner would not have had any concern, and
(7) within 10 minutes. Certainly, a reasonable person viewing those facts could
conclude that such a sequence of events was not reasonably likely. That is the
substantial evidence standard of review.

[24]
Newtown argued that electrical work was not being performed, but the Judge
rejected this claim. 35 FMSHRC at 2496-98.

[25]
Along with Commissioner Cohen, we rely on many of these findings to support a
determination of high negligence. Slip op. at 15-17.

[26]
Our colleagues in the majority recognize the importance that Herndon’s position
as the mine’s superintendent should play in the unwarrantable failure analysis,
emphasizing that “[w]ith the exception of the mine manager, every employee at
the mine was under his authority.” Slip op. at 14 n.18.

[27]
We reject the implication of the Judge’s decision that the inspector shared
some fault for this violation. 35 FMSHRC at 2500. The majority cogently refutes
this contention in its discussion vacating the Judge’s finding of low
negligence and finding high negligence. Slip op. at 15–17. Moreover, the fact that the violation occurred
during an MSHA inspection is irrelevant. Enforcement of safety standards are
not checked at the door simply because an inspection is in progress.

[28]
In Midwest Material, we held that reliance on the brief duration of the
violation was misplaced in view of the high degree of danger posed by the
hazardous condition and its obvious nature. 19 FMSHRC at 36. We noted that:

[g]iven the extreme hazard
created by [the foreman’s] negligent conduct, that misconduct is readily
distinguishable from other types of violations – such as those involving the
accumulation of coal dust – where the degree of danger and the operator’s
responsibility for learning of and addressing the hazard may increase gradually
over time.

The same holds true in
this case.