FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

April 19, 2012

    DECISION

Appearances:  Paul J. Koob, Esq., and Matthew Epstein, Esq., of the U.S. Department of Labor, Office of the Solicitor, Philadelphia, Pennsylvania, on behalf of the Secretary of Labor;

Christopher D. Pence, Esq., and Wayne H. Xu, Esq., of Guthrie & Thomas, PLLC, Charleston, WV, on behalf of Respondent, Newtown Energy, Inc.

Before:                                   Judge L. Zane Gill

Procedural History and Order Amending Pleadings

                                    This case involves a Petition for Assessment of Civil Penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815(d). As filed, the Petition alleged that Newtown Energy, Inc. (“Newtown”), was liable for two 104(d)(1) violations of the Secretary’s Mandatory Safety Standards for Underground Coal Mines, 30 C.F.R. § 75.1722(a) and 75.1725(c), respectively, and sought a total civil penalty of $34,602.00. A hearing was held on June 21, 2011, in Charleston, West Virginia, at which the parties presented evidence and argument regarding the remaining two violations. The parties filed briefs after receipt of the hearing transcript. In its post-hearing brief, Newtown argued, among other things, that the Secretary had improperly compounded charges by citing a single event as a violation under the two distinct standards listed above, giving rise to the two 104(d)(1) orders at issue.

                                    On January 25, 2012, the Court issued an Order to Show Cause requiring the parties to respond to the duplication of charges issue and suggested that the alleged violation could, and possibly should have been cited as a single event under 30 C.F.R. § 75.1722(c), which appeared to comprehend all aspects of the violating event and could resolve the argument over duplicative charges. In response to the Order to Show Cause, the Secretary agreed that the pleadings could be amended to conform to the evidence presented at trial, specifically that Order No. 6623274, which alleged a violation of 30 C.F.R. § 75.1725(c), could be vacated, leaving only Order No. 6623273, which could be amended to allege a violation of 30 C.F.R. § 75.1722(c). Newtown stated in passing that both orders should be vacated inasmuch as the Secretary should be held accountable for her erroneous choice to charge the event as she did. However, Newtown did not provide any authority or argument in support of its point. Newtown conceded that its alleged actions constituted a technical violation of 30 C.F.R. § 75.1722(c) and focused its arguments on whether the violation was significant and substantial (“S&S”) or resulted from its unwarrantable failure to comply with the mandatory safety standard.

                                    Accordingly, pursuant to FRCP 15(b)(2), 29 CFR § 2700.1(b), and Faith Coal Co., 19 FMSHRC 1357, 1361–62 (Aug. 1997), the pleadings are ORDERED amended to conform with the facts presented at trial as follows: Order No. 6623274, which alleged a violation of 30 C.F.R. § 75.1725(c), is vacated, leaving only Order No. 6623273, which is amended to allege a single violation of 30 C.F.R. § 75.1722(c). This renders moot the issue of duplicative orders.        

Decision Summary

                                    For the reasons set forth below, I conclude that Newtown violated 30 C.F.R. § 75.1722(c) as set forth by Order No. 6623273, as amended. I find that Newtown’s negligence was “high” and that a fatal accident involving one miner was highly likely to occur. I further conclude that the violation was S&S and constituted an unwarrantable failure to comply with the cited mandatory standard. Thus, I impose a civil penalty in the amount of $17,301.00.

Stipulations

1.                                 The Administrative Law Judge and the Federal Mine Safety and Health Review Commission have jurisdiction to hear and decide this civil penalty proceeding pursuant to sections 104 and 113 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815.

2.                                 Newtown is an operator of Eagle Mine, Mine ID No. 46-08759.      

3.                                 Operations at the Eagle Mine are subject to the jurisdiction of the Act 30 U.S.C. § 801 et seq., as amended.                    

4.                                 MSHA inspectors acted as authorized representatives of the Secretary of Labor when they issued the orders to Newtown Energy, Inc., referenced herein.                     

5.                                 True copies of the orders issued to Newtown in these proceedings were served on Newtown’s agents.

6.                                 The imposition of civil penalties will have no effect on Newtown’s ability to continue in business.                                 

7.                                 The citations and orders issued to Newtown contained in Government Exhibits S-3, S-44, and S-6 are authentic copies of the orders at issue in these proceedings.                   

Allegations

                                    Order No. 6623273 (Ex. S-3), as amended, alleges that Newtown violated the mandatory standard found at 30 C.F.R. § 75.1722(c), relating to “gears; sprockets; chains; drive, head, tail, and takeup pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similar exposed moving machine parts which may be contacted by persons, and which may cause injury to persons.” 30 C.F.R. § 75.1722(a). Specifically, it alleges that Newtown’s agents and miners created a hazard in violation of the standard by removing a guard panel on the tail pulley assembly while the belt line was running. The standard requires that guarding structures, such as the panel in question, be “securely in place” any time the related machinery is being operated. The order alleges “high” negligence and characterizes the gravity as S&S and “highly likely” to result in a fatality for one person. It also alleges that the violation occurred as the result of an unwarrantable failure on the part of Newtown to comply with the standard.

Fact Summary

                                    MSHA Inspector, Gary Bragg (“Bragg”) wrote the orders at issue in this case as part of a quarterly E01 inspection of the Eagle mine on August 4, 2008. Bragg was accompanied by Sam Gore (“Gore”), a section boss and compliance coordinator at the Eagle mine. (Tr. 34:2–16, 205:2–20)

                                    Bragg came upon foreman Michael Taylor (“Taylor”) working with other men in the area of the slope conveyor belt tail pulley take-up unit. Taylor was an experienced and seasoned mine foreman with nearly thirty years of foreman experience. (Tr. 175:15–21) Taylor and a “red hat” (trainee) miner were in the process of replacing a deteriorated 4-by-8 foot section of guard panel attached to the take-up unit. (Tr. 44:6–16, 181:19–182:12) The conveyor belt was running at a speed of 300–400 feet per minute at the time. (Tr. 55:1–11) Bragg concluded that this situation was unreasonably dangerous. He verbally declared an imminent danger, which required that the conveyor belt be immediately shut down. (Tr. 35:18–36:12, 44:17–22, 197:10–16) The replacement guard panel was then safely installed, and Bragg lifted the imminent danger order in less than fifteen minutes, allowing the conveyor belt to resume operation. (Exhibit S-3) Bragg issued Orders 6623273 and 6623274 in due course. (Tr. 46:13–18) The amended Order No. 6623273 relates to these facts.

Findings of Fact and Analysis

                                    There is no dispute that: (1) the guard panel was—for at least a short time—not firmly attached in place (Tr. 185:9–187:9, 266:22–267:3); (2) repairs on the guard panel were attempted while the belt line was in operation (Tr. 198:7–200:1); and (3) this constituted a violation of 30 C.F.R. § 75.1722(c). What remains disputed is: (1) whether Bragg’s assessment of negligence, gravity, S&S, and unwarrantable failure is supported by the record; and (2) what penalty, if any, is appropriate.

                                    Bragg based his decision on the following factors:

1.                                 The likelihood of an injury-producing incident was increased because of the environment where the work was being done. The tail pulley assembly was located in a damp, cramped, and steep area. The conveyor belt and the tail pulley elements remained in operation only a short distance away from where the men were working on the guard panel. (Tr: 37:9–39:15)         

2.                                 The tail pulley assembly, in addition to being close at hand, is massive, and comprises several parts that are large, heavy, and moving fast enough to instantly maim or kill a miner. (Tr. 51:4–14, 138:4–139:1, 180:10–13)

3.                                 Taylor was doing the work with an inexperienced “red hat” assistant who presumably would not have the depth of mining experience necessary to exercise appropriate independent caution. (Tr. 180:19–181:18) In contrast, Taylor was an experienced supervisor, and at least from Bragg’s perspective, should have known better than to attempt the guard panel repair under these conditions. (Tr. 60:14–62:18)

                                    Newtown argues that the order is unsupported for the following reasons:

1.                                 The men were never exposed to an unguarded conveyor belt. At all times, they were either standing to the side of the opening where the guard panel fit and/or were adequately shielded from the belt by the guard panel itself, although it was not attached in place. (Tr. 182:12–185:7, 213:15–214:17, 257:5–258:4.) If there was a moment when the guard panel was not in place, it was so brief as to be de minimus. (Tr. 198:7–199:1, 266:22–267:3)

2.                                 In the alternative, the portion of the belt exposed when the guard panel was removed was no different than any other unguarded portion of the belt. (Tr. 124:18–125:11) There is no prohibition against working in close, unprotected proximity to the belt, except at specifically designated locations, such as the tail pulley assembly. (Tr. 210:10–212:7) Although the men were working on a guard panel which might be considered part of the tail pulley assembly, the tail pulley was not exposed when the guard panel was removed. (Tr. 237:19–240:5, 255:11–256:17; Ex. S-3) The belt behind the panel was no different than any other unguarded portion of the belt. (Tr. 209:22–210:7)

Order No. 6623273

                                     Negligence

                                    Section 110(i) of the Mine Act requires that in assessing penalties the Commission must consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(i). Each mandatory standard carries an accompanying duty of care to avoid violations of the standard. An operator’s failure to satisfy the appropriate duty can lead to a finding of negligence. In this type of case, we look to such considerations as the foreseeability of the miner’s conduct, the risks involved, and the operator’s supervising, training, and disciplining of its employees to prevent violations of the standard in issue. Southern Ohio Coal Co., 4 FMSHRC at 1463–64. See also Nacco Mining Co., 3 FMSHRC at 848, 850–51 (Apr. 1981) (construing the analogous penalty provision in 1969 Coal Act where a foreman committed a violation), cited in A. H. Smith Stone Company, 5 FMSHRC 13, (Jan. 1983).

                                    Negligence “is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required […] to take steps necessary to correct or prevent hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices.” Id. Reckless negligence is present when “[t]he operator displayed conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when “[t]he operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew of should have known of the violative condition or practice, but there are mitigating circumstances.” Id. Low negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he operator exercised diligence and could not have known of the violative condition or practice.” Id.

                                    Order No. 6623273 (Ex. S-3) alleges “high” negligence. Table X of 30 C.F.R. § 100.3 links an allegation of high negligence with the absence of mitigating circumstances. From the evidence summarized above, I conclude that Newtown’s actions taken through its agent, Foreman Taylor, exhibit a high degree of negligence, as alleged. More important than the absence of mitigating circumstance in this situation is the fact that there is no ambiguity whatsoever that doing maintenance on a guard panel such as this requires that the belt line be powered off. This is a matter of self-preservation and common sense. Furthermore, it is made completely clear by being the subject of two of the standards relevant to this decision, 30 C.F.R. § 75.1725(c) and 30 C.F.R. § 75.1722(c)—if something more than common sense is required. With this as backdrop, it becomes clear that a foreman should know better than to risk life and limb by cutting corners like Taylor did here. That, in itself could be seen as a sufficiently aggravating circumstance to support findings of high negligence and S&S, but Taylor’s actions are clearly an aggravating circumstance when we consider that he did what he did in the presence and with the assistance of a trainee miner. I find and conclude that Taylor’s actions constituted high negligence even without considering the involvement of the red hat miner, which will be dealt with separately in the context of S&S analysis below.

                                    Gravity

                                    The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is most often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC 287, 294–95 (March 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987). The seriousness of a violation can be examined by looking at the importance of the standard which was violated and the operator’s conduct with respect to that standard in the context of the Mine Act’s purpose of limiting violations and protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The Commission has recognized that the determination of the likelihood of injury should be made assuming continued normal mining operations without abatement of the violation. Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986).

                                    However, the gravity of a violation and its S&S nature are not the same. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). The gravity analysis can include the likelihood of an injury, but should focus more on the potential severity of an injury, and the number of miners potentially injured. The analysis should not equate gravity, which is an element that must be assessed in every citation or order, with “significant and substantial,” which is only relevant in the context of enhanced enforcement under Section 104(d). See Quinland Coals Inc., 9 FMSHRC 1614, 1622 n.1 (Sept. 1987).

                                    Order No. 6623273 (Ex. S-3) alleges a high likelihood of a fatal injury to at least one miner as a result of this violation. I concur. The evidence establishes firmly that this two-person operation of replacing a 4-by-8 foot guard panel was done while the belt line was in operation only inches away from Taylor and the trainee miner. This is compounded by the fact that the immediate work environment was, at best, a complicating factor. The area was cramped, damp, and slightly angled, increasing the likelihood that the inherently awkward operation of staging the replacement panel, setting the old panel partially out of the way, and then maneuvering the new panel around, past, and behind the old panel would go dangerously awry. This will be discussed again below in relation to the S&S evaluation.

                                    As stated above, the gravity analysis should deal more directly with the potential severity of the injury made more likely by the violating actions. Although Newtown argued that the section of the belt mechanism guarded by the panel in question here was mechanically indistinguishable from any other portion of the belt line that would not require special guarding, I am not convinced. The simple fact that Newtown chose to guard this portion of the belt assembly is potent evidence that it recognized the potential hazard and the need to guard against it when it installed the guarding in the first place. Newtown acted in recognition of its own perception of increased hazard when it installed the guarding where it did. Newtown, Inspector Bragg, and I are all in agreement that guarding at this location was a proper response to the increased hazard created by its association with and proximity to the massive tail pulley components. The facts summarized above show that a potentially maiming or fatal injury was likely. I am convinced and conclude that Inspector Bragg’s findings of a high likelihood of fatal injury to at least one miner are justified.

                                    Significant and Substantial and Unwarrantable Failure

                                    It is clear in the Mine Act that because negligence and gravity, which are clearly delineated in 30 C.F.R. § 100.3 and related tables, apply to all citations and orders, the enhanced enforcement provisions set out in Section 104(d) contemplate something distinct and “more,” when talking about S&S and unwarrantable failure. The Secretary must prove negligence and gravity for all citations and orders. In order to invoke the enhanced enforcement provisions in Section 104(d), she must also prove that the circumstances of the violation satisfy both the S&S and unwarrantable failure standards. If the Secretary fails to prove both, there can be no enhanced enforcement. Thus, the Secretary has to prove four distinct elements when the enhancement scheme in Section 104(d) is alleged: (1) negligence; (2) gravity; (3) “significant and substantial;” and (4) “unwarrantable failure.”

                                    Significant and Substantial

                                    In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health Review Commission (“Commission”) explained:

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

Id. at 3–4.

                                    In U.S. Steel Mining Co., 7 FMSHRC 1125 (Aug. 1985), the Commission held:

                                    We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” [ . . .] We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial.”

                                    Id. at 1129 (emphasis in original) (citations omitted).

                                    The question of whether a particular violation is significant and substantial must be based on the particular facts surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is applicable only to violations of mandatory health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42 (D.C. Cir. 1999)

                                    The underlying violation of a safety standard is conceded by Newtown. It is a discrete safety hazard to perform maintenance work on any guarding element identified by 30 C.F.R. § 75.1722(a) without first shutting down the mechanism to which the guarding is attached. The likelihood that an injury caused by the violation would be of a reasonably serious nature is discussed above. Here I focus on the likelihood that the hazard arising from performing maintenance work on a guard panel while the associated belt line is still operating will result in an injury. I will discuss Newtown’s argument that any exposure to the running belt line was de minimus because the men stood to the side of the opening made by removing the guard panel and were thus shielded from contact with the belt line by other guard elements and were only exposed to the unguarded belt line for an inconsequential instant, if at all.

                                    I credit Inspector Bragg’s testimony that the situation he encountered was so hazardous in his view that he issued an immediate verbal “imminent danger” shut-down order. This is not a trivial act. I have no reason to discount Inspector Bragg’s actions as reflected in the documentation of what he did on the scene or as presented in the testimony at trial. It appears that the inspector ordered the belt line shut down immediately due to the confluence of two factors: (1) the degree of certainty that an incident would occur and (2) the potential of devastating injury. The former is consistent with the third Mathies S&S element and is central to this portion of the analysis; the later corresponds roughly to the gravity assessment common to all citations and the fourth Mathies S&S factor in more egregious cases, which were discussed above.

                                    Although the Commission has determined that there is no ipso facto, one-for-one correspondence between an uncontested imminent danger order and a related finding of S&S, Wyoming Fuel Co.,16 FMSHRC 1618, 1626 (Aug. 1994), it is clear that an inspector’s decision at the scene of a violation to issue an immediate order to cease operations can be relevant to the ultimate issue of S&S. The issue of imminent danger is not before me for adjudication, but Commission case law helps clarify the parameters of the S&S determination and is useful in assessing the qualitative and quantitative elements of the hazard encountered in this violation. In Western Slope Carbon, Inc., 5 FMSHRC 795 (Dec. 1980) (ALJ), Administrative Law Judge Carlson discussed the utility of assessing evidence of imminent danger in the context of an S&S allegation. He pointed out that in order to conclude that an imminent danger existed, the trier of fact must first find that the situation at hand can be reasonably expected to cause death or serious physical harm before the violating condition can be abated. Id. at 798–99 (quoting 30 U.S.C. § 802(j); Old Ben Coal Corp. v. IBMOA, 523 F.2d 25, 32 (7th Cir. 1975)). Obviously, as was pointed out by the Judge, concepts of “‘imminent danger’ and ‘significant and substantial’ [. . . ] share a common element: the degree of possibility that a hazard will result in a death or serious injury.” Western Slope Carbon, 5 FMSHRC at at 801. However, the two concepts are not identical. Clearly, imminent danger requires an additional finding of a potential of immediate serious harm if abatement is not done promptly. Nonetheless, the overlap between the two concepts supports my conclusion that this violation was S&S. Not only is there evidence of the basic elements of gravity, negligence, and likelihood needed to prove the underlying violation of the standard, but there is additional evidence to be taken from the Inspector’s imminent danger order to support the enhanced allegation that the violation was significant and substantial.

                                    A violation is more likely to be deemed de minimus if its gravity and/or likelihood is comparatively less. The inverse is also obviously true. The greater the gravity and/or likelihood of a potential incident, the greater the weight in favor of an S&S finding. Considering the interplay of factors and the weight of the evidence of those factors, I conclude that this violation was significant and substantial. I find it of considerable probative weight that Inspector Bragg reacted to the scene he encountered by issuing an immediate stop-work order. I find his reaction reasonable in light of the facts recited above. Conversely, I reject Newtown’s argument that the admitted violation was de minimus. In doing so, I have fully considered Newtown’s proffered evidence that Foreman Taylor and his red hat assistant(s) were largely shielded for most of the time they worked on replacing the guard panel. However, considering the grave consequences, the high probability of injury as a result of even a slight error, and the high probability of severe injury, I am convinced that this violation was far more than de minimus – it was S&S.

                                    Inasmuch as S&S is an enhanced enforcement action and requires evidence of culpability above and beyond that required to prove mere negligence, it is important to consider the fact that Taylor required a “red hat” trainee miner to assist him as he violated the standard and exposed both of them to this serious hazard. Taylor exercised poor judgement which was compounded in its effect by the fact that he was acting as a foreman. His poor judgment and risk-taking placed his inexperienced assistant in the untenable position of being exposed to the worst kind of risk and example – the kind you can’t protest or ignore without appearing to be insubordinate. This is the type of above-and-beyond evidence that makes an S&S finding imperative.

                                    Unwarrantable Failure

                                    The term “unwarrantable failure” comes from section 104(d) of the Act and, taken together with “significant and substantial,” creates a standard for enhanced enforcement procedures, including withdrawal orders and potential enhanced liability.

                                    In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that the essence of unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure has been paraphrased 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). In Gatliff Coal Co., 14 FMSHRC 1982 (Dec. 1993), the Commission drew a clear contrast between negligence and unwarrantable failure, noting that the difference is not merely semantic. Consistent with the discussion of enhanced enforcement above, the Commission stated that an unwarrantable failure may trigger the “increasingly severe enforcement sanctions of section 104(d) [whereas] [n]egligence [. . .] is one of the criteria that the Secretary and the Commission must consider in proposing and assessing [. . .] [all] civil penalt[ies].” Id. at 1988 (quoting E. Assoc’d Coal Corp., 13 FMSHRC 178, 186 (Feb. 1991)). Further, “‘[h]ighly negligent’ conduct involves more than ordinary negligence and would appear, on its face, to suggest an unwarrantable failure. Thus, if an operator has acted in a highly negligent manner with respect to a violation, that suggests an aggravated lack of care that is more than ordinary negligence.” Gatliff Coal, 14 FMSHRC at 1989 (quoting E. Assoc’d Coal, 13 FMSHRC at186).

                                    The Commission has examined various factors to assist in determining whether a violation is unwarrantable, including the extent of a violative condition, the length of time that it has existed, whether the violation is obvious, or poses a high degree of danger, whether the operator has been placed on notice that greater efforts are necessary for compliance, and the operator's efforts in abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); Beth Energy Mines, Inc., 14 FMSHRC 1232, 1243–44 (Aug. 1992); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992). The Commission has also considered an operator’s knowledge of the existence of the dangerous condition. E.g., Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (Aug.1994) (affirming unwarrantable failure determination where operator aware of brake malfunction failed to remedy problem); Warren Steen, 14 FMSHRC at 1126–27 (knowledge of hazard and failure to take adequate precautionary measures support unwarrantable determination). See also Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). What is apparent from the foregoing list of factors is that they are fact-specific examples of conduct and circumstances tending to show unwarrantable failure as something more than ordinary negligence and that they are suggestions only and are not intended to be an exhaustive or exclusive catalog. The essential aspect of the unwarrantable failure analysis is, and always has been, whether there is aggravated conduct constituting more than ordinary negligence. Any analysis of unwarrantable failure must identify the evidence or factors that prove aggravated conduct and discuss them thoroughly. IO Coal Company, Inc., 31 FMSHRC 1346, 1350–51 (Dec 2009).

                                    A Judge must identify and discuss the factors considered in his unwarrantable failure analysis and should further discuss how and why the traditional list of factors discussed above either do or do not bear on the analysis. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (“Consol”). The Commission has made clear that it is necessary for a Judge to consider all relevant factors, rather than relying on one to the exclusion of others. Windsor Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC 125, 129–36 (Mar. 2007) (remanding unwarrantable determination for further analysis and findings when judge failed to analyze all factors). While an Administrative Law Judge may determine, in his discretion, that some factors are not relevant, or may determine that some factors are much less important than other factors under the circumstances, all of the factors must be taken into consideration and at least noted.

                                    Was this aggravated conduct constituting more than ordinary negligence? The traditional factors used to determine unwarrantable failure do not lend themselves well to the facts of this case. For instance, most of them include a temporal element. The extent of a violative condition can be seen as an expression of how long a condition has existed as well as how widespread it is. The former formulation duplicates or supplements the inquiry into how long a violative condition has existed, which is often formulated as a separate factor. Whether an operator has been actually or constructively placed on notice that a violating condition or practice exists or that it should be more diligent in its compliance is also largely an expression of how long the violation has existed. Finally, the operator’s effort to abate a violating condition is most meaningful in light of how long the condition has existed. Unfortunately, these time-based factors are of little analytical assistance in a situation such as this where the order arises from an act carried out in the direct presence of the MSHA inspector.

                                    Another complication arises from the overlap between the high-degree-of-danger element of the traditional unwarrantable failure test and the negligence and gravity elements of the basic, underlying violation. They can both be proved by facts showing the relative seriousness and likelihood of an injury causing event. The distinguishing element is the weight given in the analysis.

                                    If I were to consider only, or primarily, the traditional elements of the unwarrantable failure test set out in IO Coal Company, for instance, I might be steered toward the conclusion that because this was an isolated, ad hoc event, noteworthy primarily because of the potential severity of consequences from a highly likely event, factors that have been given decisive weight in my analysis of negligence, gravity, and S&S, it should not be considered an unwarrantable failure to comply with the relevant safety standard. This would result in a distorted treatment of this important element of the violation, and points out the need to focus more on the elemental definition of “unwarrantable failure” than on the traditional factors discussed above.

                                    However, the Commission has provided guidance for a case which does not lend itself to a traditional factor-dependent analysis. Midwest Material Co., 19 FMSHRC 30 (Jan. 1997), involved a foreman’s actions in an isolated ad hoc event involving a high degree of danger which resulted in the death of a miner. The miner’s death occurred because a foreman was derelict in his supervision of the installation of an extension to a crane boom. Because the miner performed this operation incorrectly due, at least in part, to the foreman’s negligence, a section of the boom collapsed on the miner, killing him. In rejecting the Judge’s conclusion that the violation did not stem from the operator’s unwarrantable failure to comply with the cited safety standard, the Commission stated: “[t]he [J]udge’s reliance on the relatively brief duration of the violative conduct was misplaced, in view of the high degree of danger posed by the hazardous condition and its obvious nature. Given the extreme hazard created by [the foreman’s] negligent conduct, that misconduct is readily distinguishable from other types of violations [. . . ] where the degree of danger and the operator’s responsibility for learning of and addressing the hazard may increase gradually over time.” Id. at 36. Here, the Commission’s analysis demonstrates that what is important in making an unwarrantable failure determination is ultimately whether there is evidence of aggravated conduct constituting more than ordinary negligence, irrespective of how closely the traditional factor-based test tracks the facts of the case. In fact, a single factor, even one that is not typically encountered, may lead to the conclusion that a violation resulted from the operator’s unwarrantable failure.       

                                    The following factors convince me that the actions in question here constitute aggravated conduct by intention, indifference, or recklessness: (1) Foreman Taylor’s purposeful decision to ignore the very specific mandate in 30 C.F.R. § 75.1722(c); (2) his dereliction of duty as a foreman to model safe practices and to teach by example the importance and prudence of complying with safety standards; and (3) the obvious and grave hazard created by attempting guard panel repairs while the belt line is in operation. The first is an example of behavior that illustrates Taylor’s personal willingness to sacrifice safety to expediency. The second shows his indifference or recklessness towards his responsibility to look out for the safety of his crew. The third speaks to his notably poor judgement. All of these factors are consistent with the Commissions decision in Midwest Material Company, supra, and the following cases.

                                     Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999), is also particularly instructive. There, a shift supervisor’s failure to de-energize the rail of a crane and to wear a safety belt were deemed aggravated conduct. The Commission observed that both violations were obvious and dangerous. Further, the supervisor knew the consequence of his failure to de-energize and that not wearing a safety belt was dangerous. The Commission noted that “a high standard of care was required of [the] shift supervisor.” Id. at 892. It then added, “‘Managers and supervisors in high positions must set an example for all supervisory and nonsupervisory 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.’” 21 FMSHRC 892–93 (quoting Wilmot Mining, 9 FMSHRC at 688). The Commission also noted that the supervisor “had been entrusted with augmented safety responsibility and was obligated to act as a role model for [his] subordinate, who was watching him.” Id. at 893.

                                    In this case, Foreman Taylor made a conscious and considered decision to undertake repairs on a guard panel attached to the tail pulley take-up unit while the associated belt line was in operation. There was no urgency that could be argued as mitigation. This was routine maintenance that could have been done at another time when the belt line was powered off or when fully qualified, non-red hat miners could have done the work. Given the obvious danger associated with his actions, Taylor was or should have been aware of the potential danger involved and the enhanced likelihood of injury-causing accident attributable to the immediate environment where the work was done, including the cramped work space, the dangerous proximity of the moving belt line, the degree of grade in the area, and the size and momentum of the take-up pulley mechanism and its constituent parts. Finally, this was done with the aid of a trainee miner who would not have the experience or perspective to challenge the dangerous situation without risking censure. This should not have been done so deliberately by anyone, let alone a seasoned foreman.

                                    Another factor not directly addressed by case law authority but nonetheless consistent with the purposes of section 104(d) is how easy it would be for Taylor to comply and avoid the violation altogether. Another way of looking at this is to consider what alternative options were available, but not used. If other options were arguably no more likely to promote safety or were not legally or practically feasible, it might be possible to find mitigating circumstances that would weigh against a finding of unwarrantable failure. But, in this case, safe options were obvious, and nothing in the facts presented at the hearing or in the pleadings indicates why safe options were not chosen. The events here were not the result of an inadvertent oversight or mitigating exigency. This was the result of planning, preparation, and deliberate and considered execution. Inspector Bragg’s verbal imminent danger stop-work order is of note here. In response, the belt was shut down, the repairs were completed safely, and the belt was started back up in approximately fifteen minutes. Nothing in the record suggests, nor did Newtown argue, that not shutting down the belt line was in any way significantly necessary, justified, or that it would be difficult to do. There is nothing in the record that shows that it would be anything but routine to either shut the belt line down long enough to do this work, or, in the alternative, put the work off until a time when the belt line was down for other reasons. Moreover, the fact that Taylor and his trainee assistant endeavored to sequence and stage the work so that they would be partially shielded from the moving belt line by the detached guard panels is evidence of a clear recognition of the presence of an immediate hazard—one that would have ceased to exist altogether if they had only shut off the belt line long enough to safely do the work, and incidentally, fully comply with the safety standard.

                                    I recognize that the same acts could been seen as evidence of mitigation, but mitigation is much more convincing in the presence of exigency than as an excuse for a deliberate act. I see this much more as part of the process of violating the standard than as a reason to ameliorate the consequence of such a deliberate course of action.

                                    Having considered traditional unwarrantable failure factors and determined that they are of little utility in determining whether these facts make out “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care,” and having considered the factors of deliberate conduct, heightened supervisor duty-of-care, easy availability of safe alternatives, and lack of appropriately mitigating circumstances, I conclude that this violation is an example of an unwarrantable failure to comply with a safety standard.

                                    Penalty 

                                    Applying the penalty regulations found at 30 C.F.R. § 100.3 and related tables and considering the Secretary’s justification, I conclude that the $17,301.00 civil penalty proposed by the Secretary is appropriate for this violation.

Order

                                    It is ORDERED that the pleadings in this case be amended to conform with the facts presented at trial as follows: Order No. 6623274, which alleged a violation of 30 C.F.R. § 75.1725(c), is vacated, leaving only Order No. 6623273, which is amended to allege a single violation of 30 C.F.R. § 75.1722(c).

                                    It is further ORDERED that Newtown pay a penalty of $17,301.00 within 30 days of this order. Upon receipt of payment, this case will be DISMISSED.

                                                                                                /s/ L. Zane Gill

                                                                                                L. Zane Gill

                                                                                                Administrative Law Judge

Distribution:

Paul J. Koob, Esq., and Matthew Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

Christopher D. Pence, Esq., and Wayne H. Xu, Esq., Guthrie & Thomas, PLLC, 500 Lee Street, East, Suite 800, Charleston, WV 25301