FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004

May 14, 2013

DECISION ON REMAND

Before:           Judge Feldman

            The captioned matter has been remanded by the Commission. 35 FMSHRC __, slip op. (Feb. 2013). In its remand, the Commission has directed that I reconsider the initial decision with respect to the deletion of the unwarrantable failure designations for two alleged violations

of 30 C.F.R. § 75.400, which prohibits the accumulation of combustible materials. 32 FMSHRC 690 (June 2010) (ALJ). In view of the Commission remand, the parties were encouraged to attempt to settle this matter during an April 26, 2013, telephone conference. The parties subsequently advised that they were unable to reach an agreement.

            I. Factual Background

            The belt system at Manalapan Mining Company, Inc.’s (“Manalapan’s”) No. 10 Mine located in Pathfork, Kentucky was inspected on October 7, 2007, by MSHA Inspector Daniel Lewis. 32 FMSHRC at 691. At that time, the mine had four belt lines going from the face to the head drive that were approximately 2,300 feet in total length. Id. at 692. The material, consisting of rock, clay and coal, was extracted and transferred onto the No. 4 Belt at the face, then to the No. 3 and No. 2 Belts, and ultimately to the No. 1 Belt nearest the surface. Id. At the time of Lewis’ inspection, the mine conditions were constantly wet because of percolation of water through old works, the mine floor and ribs, and dust control at the face. Id. Despite the presence of water pumps, water was never completely removed, and the mine floor remained muddy at all times. Id.

            Prior to beginning his inspection, Lewis reviewed the preshift and onshift examination books. Lewis observed notations under the column entitled “Hazardous,” from August 30 through October 2, 2007, that reflected wet and muddy conditions on a daily basis along the No. 10 Mine’s four belts. Id. Lewis then traveled underground to the working face. After inspecting the working face, Lewis traveled outby the conveyor belt entry to inspect the belts. Id. at 692-93. Lewis began with Belt No. 4, then traveled outby to Belt Nos. 3, 2, and 1. Tr. 100, 331-39. Lewis observed accumulations of the extracted material along the full length of the four belts, that became progressively muddier and wetter as he progressed outby towards the head drive. 32 FMSHRC at 700; Tr. 87-88.

            Upon completing his examination of the belts, Inspector Lewis issued 104(d)(1) Citation No. 7511467 (for Belt No. 4), and 104(d)(1) Order Nos. 7511472, 7511478 and 7511479 (for Belt Nos. 3, 2 and 1, respectively) for prohibited accumulations in alleged violation of section 75.400. Lewis designated all four areas of the alleged violations as “significant and substantial” (“S&S”) and attributable to Manalapan’s unwarrantable failure. 32 FMSHRC at 693. The citations were issued after Lewis consulted by telephone with his supervisor, Jim Langley, who obviously did not have personal knowledge with respect to the conditions observed by Lewis. Id.

            The initial decision: affirmed the S&S and unwarrantable failure designations for Citation No. 7511467 (Belt No. 4); affirmed the S&S designation for Order No. 7511472 (Belt No. 3) but removed the unwarrantable failure designation, thus modifying the order to a 104(a) citation; deleted the S&S and unwarrantable failure designations for Order No. 7511478 (Belt No. 2), thus also modifying the order to a 104(a) citation; and vacated Order No. 7511479 (Belt No. 1). Id. at 699, 702, 704. The Secretary has appealed, and the Commission has directed me to reconsider, the deletion of the unwarrantable failure designations and modifications of the orders pertaining to Belt Nos. 3 and 2. 35 FMSHRC __, slip op. at 5.

            II. Disposition

                        a. Indicia of Unwarrantable Failure 

As the Commission noted:

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. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, including (1) the extent of the violative condition, (2) the length of time that the violative condition existed, (3) whether the violation posed a high degree 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 had been placed on notice that greater efforts were necessary for compliance. See IO Coal Co., 31 FMSHRC 1346, 1351-57 (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 seven factors need to be viewed in the context of the factual circumstances of a particular case, and some factors may be irrelevant to a particular factual scenario. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Nevertheless, 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.; IO Coal, 31 FMSHRC at 1351. 35 FMSHRC __, slip op. at 5.

b. Order No. 7511472 (Belt No. 3)

Regarding the violative accumulation conditions along the 400 foot length of the No. 3 Belt, Lewis noted one to nine-inch deep accumulations, and at least 20 rollers in accumulations. 32 FMSHRC at 699. He noted that the accumulations were damper than those along the No. 4 Belt. Id. at 700. Lewis initially denied that the area along the No. 3 Belt was wet and slippery, but ultimately conceded that there was enough water to make it difficult to walk. Id. Nevertheless, Lewis testified that the No. 3 Belt accumulations were “combustible enough to cite.” Id.; 35 FMSHRC __, slip op. at 3.

In its remand, the Commission noted that I did not adequately or explicitly address the factors evidencing an unwarrantable failure such as the duration of the violative condition, its obviousness, and the mine operator’s knowledge of its existence. 35 FMSHRC __, slip op. at 9. As delineated by the facts in the initial decision, the relevant criteria for an unwarrantable failure designation were, for the most part, present. The accumulations were obvious, of significant duration, and known to Manalapan, as evidenced by the pertinent notations in the examination book. However, as the Commission has noted, the indicia for unwarrantable failure must be viewed on a case by case basis, “in the context of the factual circumstances of a particular case.” 35 FMSHRC __, slip op. at 5, citing Consolidation Coal, 22 FMSHRC at 353.

            The deletion of the unwarrantable failure designation for Belt No. 3 in the initial decision was based primarily on a determination that although the negligence attributable to Manalapan may have been high, it did not cross the threshold of aggravated conduct given the facts surrounding the violation. 32 FMSHRC at 701. The difficulty of preventing and removing a soupy mixture of clay and coal, caused by extracted material sprayed for dust suppression that continually spilled off of a series of mobile conveyors onto a wet mine floor saturated by the percolation of water from the floor and ribs and from old works, is self evident. While the daily notations of apparently unresolved wet and muddy conditions along the mine’s four belts by belt examiners ordinarily would be viewed as an aggravating factor, when viewed in context, it is significant that the mine floor remained muddy at all times despite the use of water pumps.

            The evidence reflects that the accumulations around the belts became progressively wetter from Belt No. 4 to Belt No. 1, to the point that the consistency of the accumulations at the No. 1 Belt with regard to content and viscosity did not constitute a violative condition. The Secretary has not appealed the initial determination vacating 104(d)(1) Order No. 7511479 (Belt No. 1). 35 FMSHRC __, slip op. at 4-5. As the muddy conditions of the mine floor deteriorated along the belt system, outby from the No. 4 to the No. 1 Belt, the initial decision determined that there was a significant reduction in the likelihood of combustion of the cited accumulations the farther they were located from the working face.

            Although the existence of a high degree of danger posed by a cited violation is not necessary to support an unwarrantable failure, the degree of hazard posed by a violation is a relevant and important consideration, particularly with respect to whether an operator’s inaction constitutes aggravated or unjustified conduct. For it is axiomatic that “[t]he risk reasonably to be perceived defines the duty to be owed.” Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928). After all, the standard of care required by a motorist exceeding the posted speed limit is greater when traveling on a city street in proximity to a school where children are present, than the degree of care required by that motorist while traveling on a remote country road.

            However, in reconsidering the unwarrantable failure issue, I believe the evidence supports a finding of high negligence sufficient to demonstrate an unwarrantable failure. The combustibility of the accumulations around the No. 3 Belt was not sufficiently reduced from that of the material around the No. 4 Belt, particularly along the inby portion of Belt No. 3, to constitute a meaningful mitigating factor. Although I recognize the difficulty associated with the timely removal of recurrent accumulations from an extremely wet and muddy mine floor, such hardship does not preclude a finding of unwarrantable failure. Consequently, the unwarrantable failure designation for Belt No. 3 shall be reinstated.

            Turning to the issue of the appropriate civil penalty, section 110(i) of the Mine Act delegates to the Commission “authority to assess all civil penalties provided in [the] Act.”

30 U.S.C. § 820(i). The Act requires that, “[i]n assessing civil monetary penalties, the Commission shall consider” six statutory penalty criteria:

[1] the operator's history of previous violations, [2] the appropriateness

of such penalty to the size of the business of the operator charged,

[3] whether the operator was negligent, [4] the effect of the operator's ability to continue in business, [5] the gravity of the violations, and

[6] the demonstrated good faith of the person charged in attempting

to achieve rapid compliance after notification of a violation.

Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000), citing 30 U.S.C. § 820(i). Once findings on the statutory criteria have been made, a judge's penalty assessment is an exercise of discretion, which is bounded by proper consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that the de novo assessment of civil penalties does not require "that equal weight must be assigned to each of the penalty assessment criteria." Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

            As noted in the initial decision, Manalapan is a large mine operator, although information provided during the April 2013 telephone conference reflects that Manalapan may no longer be actively engaged in mining activities. The potentially serious nature of the cited accumulations

at the No. 3 Belt, as well as the relevant notations in the examination book and the violations history, must be viewed in the context of the extremely wet environment at Manalapan’s No. 10 Mine. In this regard, the liquid conditions on the belt, as well as on the mine floor, illustrate

the difficulty of cleaning muddy conditions around belts caused by chronic spillover. However, as noted in the initial decision, in the final analysis, Manalapan must be held responsible for preventing combustible accumulations. The initial decision imposed a civil penalty of $12,000.00 for 104(d)(1) Order No. 7511472. Given the reinstatement of the unwarrantable failure designation, a civil penalty of $16,000.00 shall be imposed.

                        c. Order No. 7511478 (Belt No. 2)

            Regarding the alleged violative conditions along the 500 foot length of the No. 2 Belt, Lewis observed accumulations that were one to twelve inches deep, with ten bottom rollers touching the accumulations. 32 FMSHRC at 702. Lewis testified that the conditions along Belt No. 2 were so wet and muddy that they constituted a "borderline situation" in terms of establishing a violation. Id. Photos of the area depicted a "wet, soupy mixture of mud and water." Id. at 703; Resp. Ex. 9.

            Reconsidering the issue of unwarrantable failure has caused me to revisit the facts surrounding the cited violation. In order to appreciate the significance of Lewis’ characterization of the No. 2 Belt accumulations as a borderline violation, it is instructive to consider Lewis’ deposition testimony, which was admitted at the hearing and referenced at the trial. Tr. 150-51. At deposition, Lewis stated:

            Q: [S]ome of these accumulations when you squeezed them in your hands,

            water came out of them.

A: That is correct.

Q: And those are too wet to propagate an explosion.

A: And that was on Number 1 belt.

Q: Okay. You'd - you'd agree that if that's the case [ . . . ] at least on Number 1 belt, what you describe as being combustible accumulations running the entire length of the belt [ . . . ] really weren't combustible.

A: The entire length of the belt was an incorrect statement.

Q: Okay, okay. Thank you. Was it incorrect on any of the other citations or orders?

A: I - I - I feel like trying to reflect back at that time - it's been two years ago -

Q: I understand.

A: -- Number 2 was on the borderline. Number 3 was not. Number 3 was combustible enough to cite.

(Resp. Ex. 13, at 110-112).

            The gist of Lewis’ deposition testimony is that: the content of the accumulations along the No. 3 Belt with respect to their degree of dampness “was combustible enough to cite;” unlike the No. 3 Belt, the content of the accumulations along the No. 2 Belt with respect to their degree of dampness constituted a “borderline” violation; and the degree of liquidity of the material along the No. 1 Belt essentially rendered the material inert and, therefore, not significant enough to consider a violation.

            The Secretary bears the burden of establishing the fact of the violation by a preponderance of the evidence. See ASARCO Mining Co., 15 FMSHRC 1303, 1306-1307 (July 1993) citing Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987). The Commission has noted

that the preponderance of the evidence standard requires the trier of fact to believe that "the existence of a fact is more probable than its nonexistence." RAG Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000).

            The term “borderline,” as used by Lewis to qualitatively describe the violative nature of the cited accumulations along the No. 2 Belt, is defined as “not clearly fixed or convincing” and “subject to challenge or debate.” Webster’s Third New International Dictionary 255 (1993). Synonyms include “dubious,” “questionable,” “ambiguous,” “doubtful,” and “inconclusive.” Id.; Roget’s II: The New Thesaurus 52, 17 (3^rd ed. 1996).

            Lewis’ characterization of the conditions along the No. 2 Belt as “borderline” is the substantive equivalent of describing the subject violation as inconclusive, if not doubtful. Such characterizations do not satisfy the RAG Cumberland Resources test that requires the Secretary

to demonstrate that the existence of the cited violative condition was “more probable than its nonexistence.” 22 FMSHRC at 1070. In short, affirming the fact of the violation in such circumstances would violate Manalapan’s due process.

            In reaching this conclusion, I am cognizant of the fact that inspectors should err on the side of caution when citing conditions that they believe may be hazardous. The fact that inspectors must be encouraged to cite conditions they deem to be violations, does not relieve the government of the burden of demonstrating that the cited violation in fact occurred. I am also mindful that the Mine Act is a strict liability statute. However, strict liability is a relevant consideration only after the Secretary has demonstrated the fact of an alleged violation of the statute or mandatory safety regulations.

            In addition, it is significant, particularly in view of Lewis’ deposition testimony, that Lewis consulted his supervisor, Langley, with respect to the fact of the violation, despite Langley’s lack of actual knowledge. In this regard, Lewis’ deposition testimony reflects that he was not entirely comfortable with designating all of the accumulations that he observed along the No. 10 Mine belt system as violative in nature. Accordingly, Order No. 7511478 shall be vacated as the Secretary has failed to satisfy her burden of establishing the fact of the cited violation along the No. 2 belt line.

ORDER

            In view of the above, IT IS ORDERED that:

            1. 104(d)(1) Order No. 7511472 (Belt No. 3) IS AFFIRMED to reflect that the cited violation was attributed to an unwarrantable failure.

            2. Manalapan Mining Company, Inc., SHALL PAY a civil penalty of $16,000.00

in satisfaction of Order No. 7511472.

            3. 104(d)(1) Order No. 7511478 (Belt No. 2) IS VACATED.

            IT IS FURTHER ORDERED that Manalapan Mining Company, Inc., shall pay,

within 40 days of the date of this decision, if it has not already done so, a total civil penalty of $36,000.00 in satisfaction of the four cited accumulation conditions that are the subject of these proceedings.

                                                                        /s/ Jerold Feldman

                                                                        Jerold Feldman

                                                                        Administrative Law Judge

Distribution:

Uche Egemonye, Attorney, U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street SW, Suite 7T10, Atlanta, GA 30303

John M. Williams, Esq., Rajkovich Williams Kilpatrick & True PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513

/tmw