Consolidation Coal Company

Plain-English summary

Consolidation Coal Company was cited after an inspector found that Robinson Run No. 95 lacked the required supply of supplementary roof supports within four crosscuts of a working section. The Administrative Law Judge found a violation but concluded that the operator's conduct was not an unwarrantable failure. The Commission majority held that management had been put on notice, failed to act promptly, and treated the safety materials as a routine supply matter. It reversed the judge's unwarrantable-failure finding and remanded the case for assessment of an appropriate penalty. Commissioner Verheggen dissented and would have affirmed the judge.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.214
• Outcome: The Commission reversed the finding that the violation was not unwarrantable and remanded for penalty assessment.
• Key point: Once an operator is put on notice of a mandatory roof-support deficiency, routine ordering without effective follow-up can support an unwarrantable-failure finding.

Full text (FMSHRC public release)

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

                                     March 27, 2000

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 98-111
:
CONSOLIDATION COAL COMPANY :

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners1

                                       DECISION

BY: Jordan, Chairman; Marks, and Riley, Commissioners

    This is a contest proceeding arising under the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”). At issue is whether the violation, charged
in the citation issued by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) against Consolidation Coal Company (“Consol”), was the result of the operator’s
unwarrantable failure. Administrative Law Judge Jacqueline Bulluck concluded that it was not
(21 FMSHRC 612 (June 1999) (ALJ)), and the Secretary appealed. For the reasons that follow,
we reverse the judge’s determination and remand the case for assessment of the appropriate
penalty.

                                            I.

                           Factual and Procedural Background

    Consol owns and operates Robinson Run No. 95, an underground coal mine in West

Virginia. 21 FMSHRC at 613. On January 15, 1998, MSHA inspector Charles Thomas was
conducting a Triple-A inspection at the mine. Id. While in the 12-D section of the mine to check
on safety equipment, Thomas noticed the absence of any centrally located supplementary roof
support, including posts, caps, wedges, and a saw. Id. As a result, Thomas spoke with Consol
day shift foreman Kevin Carter. Id. Thomas asked Carter about the location of the supplementary

    1
     Commissioner Beatty recused himself in this matter and took no part in its

consideration.

                                    22 FMSHRC 328

roof support and number of roof posts. Id. at 613-14; Tr. 14. According to Carter, Thomas told
him “to count your posts.” Tr. 96, 113-14. Carter told Thomas that he would “take care of it.” 21
FMSHRC at 614. As Thomas left the mine, accompanied by miner safety representative Dave
McCullough, Thomas also spoke with Consol safety director Robert Church and told him that
attention was needed to address supplementary roof support in the 12-D section. Id.; Tr. 15.

   Subsequently, during his shift on January 15, Carter counted the posts and caps along the

supply track and found that there were only 11. 21 FMSHRC at 614. Carter then spoke with
mine foreman Tom Harrison and requested additional posts and other roof support materials. Id.
Around 3:30 or 4:00 that afternoon, Harrison ordered the posts from the supply yard, which is
located about 10 miles from the 12-D section. Id.

    MSHA inspector Thomas returned to the mine to continue his Triple-A inspection on

January 17 during the midnight shift, 2 days and four shifts after he left the mine on January 15.
Id. Consol foreman Frank Slovinsky was substituting for the regular foreman of section 12-D. Id.
Thomas asked Slovinsky where the emergency roof supports were located. Id. Slovinsky
responded that they should be in the tool car.2 Id.; Tr. 15. When the posts could not be located
there, the two searched along the supply track outby four crosscuts of the section. 21 FMSHRC at
614; Tr. 25. They eventually located 11 posts and some cap pieces and wedges, but never found a
saw. 21 FMSHRC at 614; Tr. 26.

    Inspector Thomas then issued Order No. 4888994 charging Consol with a violation of 30

C.F.R. § 75.214 for failing to maintain a supply of supplementary roof support material at a
readily accessible location within four crosscuts of the 12-D section. 21 FMSHRC at 614.
Section 75.214 provides:

           Supplemental support materials, equipment and tools.

           (a) A supply of supplementary roof support materials and the tools
           and equipment necessary to install the materials shall be
           available at a readily accessible location on each working section or
           within four crosscuts of each working section.

           (b) The quantity of support materials and tools and equipment
           maintained available in accordance with this section shall be
           sufficient to support the roof if adverse roof conditions are
           encountered, or in the event of an accident involving a fall.

Consol’s roof control plan for the Robinson Run mine further specified that “[t]he quantity of

    2
     It was customary at the Robinson Run mine to maintain supplementary roof support for

a working section on a “sled” or tool car at the power center or track entry near the section. 21
FMSHRC at 613 n. 2; Tr. 16-17.

                                    22 FMSHRC 329

supplementary roof support material required by [section] 75.214(b) shall consist of a minimum
of twenty (20) posts of proper length with sufficient cap pieces and wedges.” 21 FMSHRC at
615.

    The inspector designated the violation as significant and substantial (S&S) and alleged that

it was the result of Consol’s unwarrantable failure. Id.; Ex. P-1. The violation was abated
between 3:30 and 5:00 a.m. the following morning when miners were able to locate additional
posts along the supply and main tracks, and stored 20 posts, along with wedges, cap pieces, and a
saw, in the No. 11 crosscut. 21 FMSHRC at 614.

    Consol contested the citation, and a hearing was held before an administrative law judge.

The judge held that it was clear that Consol had failed to maintain a supply of 20 posts and related
materials at a readily accessible location in the 12-D working section or within four crosscuts. Id.
at 615. The judge further concluded that the violation was S&S. Id. at 616. With regard to
unwarrantable failure, the judge noted that Consol was aware of the requirements of the standard
and that, on January 15, it had been put on notice that remedial efforts were necessary to achieve
compliance. Id. at 617. The judge found that, on January 15, foreman Carter and general mine
foreman Harrison acted promptly in ordering additional supplies. Id. The judge further reasoned
that “Consol assumed the risk of being cited by failing to ensure delivery to the section during the
supply crew’s first available shift, i.e., the day shift of January 16th.” Id. However, the judge
concluded that Consol’s lack of follow-up until the midnight shift on January 17 did not constitute
intentional misconduct, recklessness, or a serious lack of reasonable care, amounting to more than
ordinary negligence and, therefore, was not the result of Consol’s unwarrantable failure. Id.

                                             II.

                                        Disposition

    The Secretary argues the record compels a finding that the violation was due to Consol’s

unwarrantable failure. S. Br. at 7. She avers that MSHA inspector Thomas notified the day shift
foreman, the general foreman, and the safety director at the mine about the problem as well as the
need for corrective action, thus Consol was on notice that greater efforts were necessary to address
the cited condition, yet no meaningful effort was made to remedy the situation. Id at 7-10,12-13.
The Secretary also asserts that the cited condition posed a high degree of danger in the event of a
roof fall. Id. at 13-17. Finally, the Secretary argues that Consol’s efforts to correct the violation
were ineffective, and the failure of three members of management to follow through with
corrective action before a citation issued demonstrated an attitude of indifference toward
abatement of the condition and the hazard it created. Id. at 10, 17-24.

    In response, Consol argues that substantial evidence supports the judge’s conclusion that

the violation was not the result of its unwarrantable failure. C. Br. at 6-7. Consol further argues
that the Secretary is essentially asking the Commission to overturn the judge’s credibility
resolutions. Id. at 8-9. Consol argues that management reacted to the inspector’s January 15

                                     22 FMSHRC 330

comment concerning the supplemental roof post prudently and in a good faith manner. Id. at 9­

11. Consol further notes that there were other means of roof support available and that the 12-D
    section where the violation occurred had a history of good roof conditions. Id. at 11. The delay in
    getting the supplemental roof posts, Consol contends, was inadvertent, unintentional, and
    unavoidable. Id. at 13. Finally, Consol argues that there was no prior history of similar
    violations; rather, Consol made a good faith effort to maintain posts in the 12-D section but they
    were removed for other purposes. Id. at 13-14.

    The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
    

    § 814(d), and refers to more serious conduct by an operator in connection with a violation. In
    Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
    unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
    2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional
    misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester &
    Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v.
    FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).
    The Commission “has recognized that a number of factors are relevant in determining whether a
    violation is the result of an operator's unwarrantable failure, such as the extensiveness of the
    violation, the length of time that the violative condition has existed, the operator's efforts to
    eliminate the violative condition, and whether an operator has been placed on notice that greater
    efforts are necessary for compliance.” Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
    1994) (citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992)).

    Not all of the Mullins criteria are applicable to the violation at issue. However, a
    

    determination of unwarrantable failure is amply supported by the relevant criteria. It is
    undisputed that, when he was at the mine on January 15, MSHA inspector Thomas informed
    several Consol officials, including the day shift foreman and safety director, that they needed to
    check the number of roof posts, caps, and wedges in the 12-D section to comply with the mine
    roof control plan. However, neither day shift foreman Carter nor safety director Church took
    action to ensure the violative condition was remedied.

    Ideally, Carter should have immediately addressed the violative condition brought to his
    

    attention by searching for the required safety equipment and materials. Instead, Carter contacted
    mine foreman Harrison to have posts ordered from Consol’s general supply. Carter’s trial
    testimony explaining his actions is revealing:

           Q.      Is there some reason why you just didn’t drop everything and go out
                   looking for posts elsewhere?
    
                                     22 FMSHRC 331
    
           A.      We were in production at that time and it wasn’t any emergency
                   situation that presented itself. I did have eleven . . . to use, and we
                   have good top conditions, so I didn’t see any reason to stop
                   everything to get nine posts.
    

Tr. 100.

     Harrison, in turn, treated Carter’s request for the supplementary roof support as a routine

supply request. As Harrison explained in his hearing testimony, Carter “indicated to me that as
far as the law is concerned he needed a few more [posts], but that he did have posts on the section,
so it didn’t [s]eem to be urgent to me.” Tr. 136-37. Harrison admitted that he could have had a
“special supply crew” assigned to gather the posts but, “[i]t’s just not as efficient . . . .” Tr. 137.
While obtaining more posts through the normal supply chain should have put them in place on
January 16, inexplicably the posts were not delivered. Carter was present on the day shift on
January 16 but had no explanation for the delay in the delivery of the posts. Tr. 120-21. More
significantly, he took no action on January 16 to inquire about the whereabouts of the posts or to
ensure prompt shipment of the posts once it was apparent that they had not been received.

    In short, Consol failed to respond effectively to rectify a violative condition of which it

was aware. Notwithstanding the passage of four intervening shifts after inspector Thomas’ initial
admonition, Consol failed to place twenty posts at a central location to serve as supplementary
roof support as required. Consol now appears to believe that “good intentions” should be enough
to shield the company from an unwarrantable charge. Good intentions, however, and good faith
are not the same. Good faith requires vigilance about one’s responsibilities, commitment to
finding the resources to get the job done, and accountability for failure.

    While the record shows Consol officials made some effort to address the violation, clearly

their efforts were inadequate and by January 16, it should have been evident that greater efforts
were needed to correct the problem. However, no further action was taken because neither Carter,
Church, nor Harrison saw any urgent need to eliminate the violative condition for which Consol
was later cited.

    The inadequacy of Consol’s response to finding an insufficient number of posts on January

15 is in stark contrast to its response when it discovered a similar problem on December 15, 1997.
On the prior occasion, Carter made an entry into the pre-shift examination log when it was
ascertained there were insufficient posts on the working section, and the problem was eliminated
by the next shift. Tr. 93-96; R. Ex. 1. In contrast, on January 15, after inspector Thomas alerted
Carter to the shortage of posts in the 12-D section, Carter did not enter the shortage in the log so
other foremen on subsequent shifts could ensure that remedial action was taken. Thus, on the
midnight shift of January 17, foreman Slovinsky was not even aware of the hazard of inadequate
supplementary roof support. Understandably, he made no attempt to address or alleviate the
violative situation.

                                      22 FMSHRC 332



    We have held that, “[w]here an operator has been placed on notice of [a] . . . problem, the

level of priority that the operator places on addressing the problem is a factor properly considered
in the unwarrantable failure analysis.” Jim Walter Resources, Inc., 19 FMSHRC 480, 487 (Mar.
1997). By January 15, 1998, Consol was specifically alerted to the presence of a violation. Thus,
by January 17, when the citation was issued, Consol had clearly been put on notice that greater
efforts were needed to comply with the regulation. The Commission has, in a prior case,
concluded that the passage of one day, following an MSHA inspector’s informing an operator of an
accumulation problem, constituted unwarrantable failure because the operator’s “allowing the
accumulation to continue to exist established its aggravated conduct . . . . ” Southern Ohio Coal
Co., 12 FMSHRC 1498, 1502-03 (Aug. 1990) (“SOCCO”). See also Mid-Continent Resources,
Inc., 16 FMSHRC 1226, 1233 (June 1994) (failure to address coal accumulations contained in
examination reports for two shifts constituted unwarrantable failure). Here, the violation was in
existence for two days after the inspector put the operator on notice that he would be checking on
the number and location of posts. We also find relevant Carter’s concession that he was aware of
the existence of a violative condition at the time the inspector gave him the head’s up to check his
posts.3 Carter admitted to Thomas even then that the posts were not centrally located as required,
but were scattered along the tracks.4 Tr. 24, 37; see Tr. 100-101.

    In sum, once Consol became aware that it was in violation of the regulation and its roof

control plan, it was under an obligation to expeditiously remedy the condition that gave rise to the
citation. Relegating the request for additional posts to the routine supply system so as not to
interfere with production was a conscious decision by mine management. Attaching no special
significance to an order for materials necessary to bring the mine into compliance with a
mandatory safety standard is an indication that this operator should reexamine its priorities.
Failing to follow up the inspector’s admonition in such a way as to insure that the request for
required roof control supplies did not get lost in the company’s own bureaucracy is inexcusable.
Finally, nothing in the record suggests that anyone was held accountable for this error. Taken
together, the company’s actions reflect the kind of indifference to a violation that constitutes an
unwarrantable failure to comply with the regulation.

    3
      Although the dissent attempts to distinguish this case from SOCCO, in part because

there the violative condition had existed before the MSHA inspector alerted the operator (slip op.
at 10), Carter’s statement makes clear that he, too, had knowledge of a safety problem before
being warned by the inspector.
4
As the Commission has noted in prior cases, a foreman is held to a high standard of
care. LaFarge Construction Materials, 20 FMSHRC 1140, 1145 (Oct. 1998), citing Midwest
Material Co., 19 FMSHRC 30, 35 (Jan. 1997).

                                     22 FMSHRC 333



                                           III.

                                       Conclusion

    For the foregoing reasons, we reverse the determination of the judge and conclude that the

violation was the result of Consol’s unwarrantable failure. We remand the proceeding to the judge
for assessment of an appropriate penalty.

                                         Mary Lu Jordan, Chairman




                                         Marc Lincoln Marks, Commissioner




                                         James C. Riley, Commissioner




                                    22 FMSHRC 334

Commissioner Verheggen, dissenting:

   I find that substantial evidence1 supports the judge’s conclusion that the Secretary failed to

prove that the violation of 30 C.F.R. § 75.214 was the result of Consol’s unwarrantable failure. I
would affirm her decision, and therefore I respectfully dissent.

    The Commission has recognized that a number of factors are relevant in determining

whether a violation is the result of an operator’s unwarrantable failure, such as the extensiveness of
the violative condition, the length of time the violative condition has existed, the operator’s efforts
to eliminate the violative condition, and whether the operator has been placed on notice that greater
efforts are necessary for compliance. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). There is no dispute here that the
operator was placed on notice by Inspector Thomas during his inspection on January 15, 1997.
However, in finding that the Secretary failed to prove the operator’s unwarrantable failure, the
judge focused on two of the other factors — the length of time the condition existed and the
operator’s efforts to eliminate the condition — factors which are central to this case. Each of the
judge’s findings on these factors is supported by the record evidence.

    First, with respect to the length of time the violative condition existed, substantial evidence

supports the judge’s conclusion that the condition had not existed since October of 1997, as the
Secretary had alleged.2 21 FMSHRC 612, 617 (June 1999) (ALJ). Based on the pre-shift report of
December 15, 1997, and the credited testimony of foreman Frank Carter, the judge concluded that
supplemental posts had been available on the section prior to January 15, 1997. Id. Second, as to
the efforts to eliminate the condition, the judge found “that foreman Carter and general mine
foreman Harrison acted promptly on January 15th in assessing the deficiency and ordering
additional supplies.” Id. Carter testified that, upon being told by Inspector Thomas to count the
posts, he did so, and thereafter called Harrison to order additional posts in accordance with
established mine procedure. Tr. 96-97. Harrison testified that, upon receiving Carter’s call, he
ordered the posts from the supply yard for delivery to the section by the supply crew. Tr. 132-37.

    1
     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)).
2
According to the citation, “section [12D] has been in coal production since October of
1997 and no supply of supplementary roof support has been stored within four crosscuts of the
face.” Ex. P-1. Inspector Thomas testified that his decision to cite the operator for
unwarrantable failure was based, at least in part, upon the reports of two miners that
supplemental posts had never been available in section 12D since work began there in October
1997. Tr. 62-63.

                                      22 FMSHRC 335

The judge concluded that any lack of additional follow-up until the time of the citation on January
17 did not amount to unwarrantable failure. She reached this conclusion after crediting Carter’s
testimony that the lack of delivery on January 16 “did not cause him concern, but that no delivery
on the next day shift, January 17th, would have merited his attention.” 21 FMSHRC at 617.

   A judge’s credibility findings are entitled to great weight and may not be overturned lightly.

Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3
FMSHRC 2767, 2770 (Dec. 1981). There is no basis in this case to question the judge’s credibility
findings. Because the record contains “such relevant evidence as a reasonable mind might accept
as adequate to support [the judge’s] conclusion” (Rochester & Pittsburgh, 11 FMSHRC at 2163
(quoting Consolidated Edison, 305 U.S. at 229)), I would affirm the judge’s decision.

    Regrettably, the majority, in reversing the judge’s decision, ignores the judge’s factual

findings in this case, including her credibility determinations. Worse still, the majority ignores the
substantial evidence test altogether, resulting in an opinion that provides, in my view, a classic
example of de novo factfinding by an appellate body, contrary to settled principles of law. Island
Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993) (“It would be inappropriate for the
Commission to reweigh the evidence in [any] case or to enter de novo findings based on an
independent evaluation of the record.”); Wellmore Coal Corp. v. FMSHRC, No. 97-1280, 1997
WL 794132 at *3 (4th Cir. Dec. 30, 1997) (“‘[T]he ALJ has sole power to . . . resolve
inconsistencies in the evidence’”) (citations omitted), cert. denied, 119 S.Ct. 600 (1998). For
example, notwithstanding the judge’s contrary findings, the majority concludes that while Consol
made some effort to address the violation, “clearly their efforts were inadequate and by January 16,
it should have been evident that greater efforts were needed to correct the problem.” Slip op. at 5.3

    Time and again the courts have reminded us that this Commission may not “substitute a

competing view of the facts for the view [an] ALJ reasonably reached.” Donovan ex rel. Chacon v.
Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983). While it is possible that a reasonable trier
of fact could have concluded that Consol’s remedial efforts in this case were so inadequate as to
constitute “reckless disregard,” this judge did not so find. The standard is not whether the judge
could have reached a different conclusion under these facts, but whether there is sufficient

    3
      The majority declares, with the benefit of hindsight, that “[i]deally, Carter should have

immediately addressed the violative condition brought to his attention by searching for the
required safety equipment and materials.” Slip op. at 4. I agree. It does not follow, however,
that the actions taken by Consol, insufficient as they may have been, amounted to a less than
good faith effort, as the majority appears to suggest. Id. at 5 (“Consol now appears to believe
that ‘good intentions’ should be enough to shield the company from an unwarrantable charge.
Good intentions, however, and good faith are not the same.”).

                                      22 FMSHRC 336

evidence in the record to support the judge’s conclusion. See Wellmore, 1997 WL 794132 at *3
(“the Commission’s review [is] statutorily limited to whether the ALJ’s findings of fact [are]
supported by substantial evidence. The ‘possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding from being supported by
substantial evidence.’”) (citation omitted).

     If the majority believes the judge erred by failing to properly analyze the adequacy of

Consol’s remedial efforts, their only recourse under well settled Commission precedent would be
to remand this case to the judge rather than substitute their own judgement for that of the judge.
Notably, in another case where the adequacy of an operator’s abatement efforts were questioned in
similar circumstances, this Commission remanded the case to the judge. See Windsor Coal Co., 21
FMSHRC 997, 1006 (Sept. 1999).4

    The majority also finds the operator’s conduct unwarrantable because the violative

condition was not eliminated four shifts after it was placed on notice, citing as authority Southern
Ohio Coal Co., 12 FMSHRC 1498, 1502-03 (Aug. 1990) (“SOCCO”). My colleagues’ reliance on
SOCCO is misplaced. First, unlike this case, there was evidence in SOCCO that the violative
condition, an accumulation of coal in a tailgate entry, had existed for some time prior to the
operator being warned by an MSHA inspector. Id. More importantly, in SOCCO, the Commission
was not reversing the judge’s finding of unwarrantable failure, but affirming his finding on
substantial evidence grounds. Those grounds included the operator’s failure to take meaningful
action to eliminate the accumulation after being notified one day earlier, as well as, among other
things, the judge’s credibility findings against the operator. Id.

    It is one thing to find that the failure to remedy a violation after the passage of one day may

support a finding of unwarrantable failure. But it is another thing altogether to find, as my
colleagues do, that the passage of four shifts compels a finding of unwarrantable failure and
reversal of the judge. Once again, my colleagues substitute their judgement for the judge’s in this
case, finding de novo that Consol’s actions, or lack thereof, over four shifts constituted aggravated
conduct. It is not our role, however, to reweigh the evidence or to enter findings based on an
independent evaluation of the record. Island Creek, 15 FMSHRC at 347. Furthermore, as we have
recently recognized, “[t]he possibility of drawing two inconsistent conclusions from the evidence
does not prevent . . . [a] finding from being supported by substantial evidence.” Secretary of Labor
on behalf of Clay Baier v. Durango Gravel, 21 FMSHRC 953, 958 n.6 (Sept. 1999) (citing
Secretary of Labor ex rel. Walmsley v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir. 1996)).

    4
     In Windsor, I concluded that remand was unnecessary since it was obvious that the

operator’s “efforts were not ‘adequate’ — had they been, there would have been no violation.
The question is rather whether [the operator’s] efforts were so inadequate that the company’s
conduct rose to a reckless, aggravated level of negligence. The judge concluded they were not,
and substantial evidence supports this conclusion.” 21 FMSHRC at 1012 (Comm’r Verheggen,
dissenting). The same holds true in this case.

                                      22 FMSHRC 337



   For the foregoing reasons, I would affirm the judge’s finding that Consol’s violation was

not unwarrantable. Accordingly, I respectfully dissent.

                                        Theodore F. Verheggen, Commissioner




                                    22 FMSHRC 338

Distribution

Elizabeth S. Chamberlin, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241

Tina Peruzzi, Esq.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Jacqueline R. Bulluck
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

                                22 FMSHRC 339