FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

By Order dated April 1, 2013, I lifted the stay of this matter and gave the parties an additional opportunity to brief what effect, if any, the Commission’s Wolf Run decision should have on disposition of this matter. Both the Secretary and Respondent filed briefs in response to my Order lifting stay.

For the reasons set forth below, I modify Order No. 7490599 to reduce the level of negligence from “high” to “moderate.” I further modify Order Nos. 7490584 and 7490599 to reduce the likelihood of injury or illness from “highly likely” to “reasonably likely.” Further, I affirm the S&S and unwarrantable failure designations for both Orders and conclude that both violations are flagrant under a narrow interpretation of the “repeated failure” provision. See Wolf Run, supra, 35 FMSHRC at ___, slip op. at 8, n. 14. Accordingly, I reduce the proposed penalty for Order No. 7490584 from $179,300 to $101,475 and Order No. 7490599 from $164,700 to $77,737, resulting in a total civil penalty assessment of $179,212 for the “repeated failure” flagrant violations found herein.

On the entire record, including my observation of the demeanor of the witnesses,[1] and after considering the post-hearing and post Wolf Run briefs, I make the following:

II. Findings of Fact

A. Stipulated Facts

The parties stipulated to the following facts.

1. Respondent is an “operator” as defined in Section 3(d) of the Federal Mine Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. 803(d), at the coal mine at which the Orders at issue in these proceedings were issued.

2. Galatia Mine is operated by Respondent.

3. Galatia Mine is subject to the jurisdiction of the Mine Act.

4. These proceedings are subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judges pursuant to Sections 105 and 113 of the Mine Act.

5. The individual whose signature appears in Block 22 of the Orders at issue in these proceedings was acting in his official capacity and as an authorized representative of the Secretary of Labor when the Orders were issued.

6. A duly authorized representative of the Secretary served the subject Orders and terminations of the Orders upon an agent of the Respondent at the dates and place stated therein as required by the Mine Act, and the Orders and terminations may be admitted into evidence to establish their issuance.

7. The total proposed penalties for the Orders at issue in these proceedings will not affect Respondent’s ability to continue in business.

8. The Orders contained in Exhibit A attached to the Petition for Assessment of Penalty for these dockets are authentic copies of the Orders at issue in these proceedings with all appropriate modifications and terminations, if any.

B. Factual Background

Respondent operates the Galatia Mine, a large underground coal mine in Saline County, Illinois. At the time that the Orders in this case were issued, there were three portals: the Main Portal, Galatia North Portal, and the Millennium Portal, which is now known as the New Future Portal. Tr. I at 160; see also American Coal Co., 33 FMSHRC 2803 (Nov. 2011) (ALJ). [2]

The Galatia Mine utilized a complex system of conveyor belts to transport coal for many miles from mine face to portal. Accumulations of coal at two transfer points between belts gave rise to the instant Orders. On September 18, 2007, [3] inspectors issued Order No 7490584 for accumulations occurring approximately four miles outby the working section near the location where the Flannigan #1 belt transferred coal to the Northwest #3 belt. Tr. I at 102, 353-55; R. Ex. 5, pp. 3-4. On September 23, 2007, Order 7490599 was issued for accumulations which occurred near the transfer point between the Pony Belt, a small, temporary belt at the working section in the northwest area of the mine, and the Flannigan tailgate belt. Tr. I at 308, 353-55; R. Ex. 4, pp. 3-4.

In 2007, the Galatia Mine employed almost 800 people and produced 7,009,160 tons of coal. Tr. I at 39. When the instant inspections occurred in September 2007, the mine liberated a little over three million cubic feet of methane a year and was subject to five-day spot inspections. Tr. I at 53-54. In the twelve months preceding September 23, Respondent was issued twenty-seven citations/orders for alleged violations of 30 C.F.R. 75.400 involving accumulations of coal, lump coal, coal dust, float coal dust, and coal fines on and around conveyor belts and belt structures in the Galatia Mine. P. Exs. 5-31. Nineteen of the aforementioned citations/orders were issued as S&S violations. P. Exs. 5, 8, 10-12, 14, 15-18, 20, 22, 25-31. In the twenty-four months preceding the subject orders, Respondent was cited for violations of 75.400 a total of 361 times. P. Ex. 1. Among those 361 citations and orders, seventy-seven were issued as S&S violations and eleven were issued as unwarrantable failure violations under Section 104(d) of the Mine Act. P. Ex. 1.[4]

C. The Inspections at Issue

1. Order No. 7490584

On September 18, mine foreman, John Alariai, accompanied Steven Miller,[5] MSHA’s lead coal mine inspector for the Galatia Mine portals, during an E01 inspection when Miller issued Order No. 7490584. Tr. I at 57-58; see 30 U.S.C. § 103(f). The 104(d)(2) Order alleged a violation of 30 C.F.R. § 75.400 citing accumulations of loose coal and float coal dust near and outby the Northwest #3 belt tail area. The Order states:

Float coal dust, a distinct black in color, and loose coal were allowed to accumulate under and around the energized tail roller of the Northwest Number 3 conveyor belt. The accumulations measured approximately 6 inches to 29 inches in depth. Accumulations of coal that had been removed from under this tail roller in the past had been stock pile[d] behind the tail roller guard and measured approximately 6 feet in width, 2 feet in depth, and 8 feet in length. Loose coal and coal float dust also extended outby the tail roller approximately 150 feet as well as 40 feet inby the tail roller. This area was black and the turning tail roller was suspending float coal dust into the atmosphere. This condition has been on the books for the last four shifts.

P. Ex. 2.

Miller did not identify any wet or slurry areas in the accumulations. Tr. I at 82. Miller described the “float coal dust” as a brown material with the consistency of flour and described “loose coal” as ranging in size from 6-inch diameter lumps to pea-size gravel. Unlike loose coal, float coal dust is extremely fine, and can go through a 200 sieve screen. Tr. I at 201-02. Both substances are combustible, but there is an “added hazard” with float dust, which can propagate an explosion when suspended. Tr. I at 59-60, 202. Miller acknowledged that although frictional heat did occur with the loose coal and float dust grinding in the tail roller of the Northwest #3 belt, he found no other ignition source in the area, and no evidence of methane or abnormal gas readings. Tr. I at 94-95, 269. Furthermore, Miller did not detect methane near the cited areas, and the Secretary offered no evidence about methane liberation in the Galatia North Mine portal for the specific time period at issue. Tr. I at 159-160, 271-73.

The accumulations were in an area where the belt tail intersected and connected with the Flannigan #1 belt head. Tr. I at 215-16. Miller opined that the accumulations at the Northwest #3 belt tail were different from “normal spillage,” as they were “a distinct black in color” and measured approximately 6 inches to 29 inches in depth. Tr. I at 61-62. Miller observed the accumulations under and around the turning tail roller, which created a point of contact between the combustible accumulations and the belt itself. Tr. I at 62. Miller opined that the amount of accumulations in the area of the belt’s tail roller was “a lot more than what you should see . . . on a tail roller if it’s being properly maintained.” Tr. I at 63.

Miller explained that as coal is transferred from belt to belt, some float dust travels through the air, but the black color of the accumulations on the rock-dusted surface indicated that the condition had existed for quite some time. Tr. I at 71-72. Based on the condition and color of the accumulations, and the absence of evidence that the belt was torn or had gone down suddenly, Miller determined that the accumulations “had been there for many shifts.” Tr. I at 72-73.

Miller relied on Respondent’s examination books to conclude that the accumulations were present for at least four shifts. Tr. I at 74. Respondent’s pre-shift reports are prepared by mine examiners in the three hours prior to the beginning of each shift and are countersigned by a mine manager, superintendent/assistant, and another pre-shift mine inspector. Each report contains notations alerting mine management of violations and hazardous conditions and remarking on developing hazards. At the end of each shift, the mine manager files another report listing the violations and other hazardous conditions that were observed during the shift or reported by the pre-shift examiner, and the actions taken to address said conditions.

Respondent produced the five set of reports addressing the Northwest #3 belt that were filed prior to the issuance of Order No. 7490584. R. Exs. 22, 23. Those shift reports provide as follows:

a. September 17

i. 8 a.m. to 4 p.m. shift (day shift)

The report alerts mine management of hazardous or violative conditions at sections 101-103, 93, and 86-87 of the Northwest #3 belt, which the report describes as “dirty.” In the remarks section, the examiner notes, “accumulation[s] take up to [the] head roller. Floor gray. B.O. bottom roller 96 ½.” In an undated on-shift report, the mine manager states that the reported sections have been cleaned. R.Ex. 22.

ii. 4 p.m. to 12 midnight shift (evening shift)

The pre-shift report cites the following violations and hazardous conditions: “Tail Area Black, Tail scraper dirty, #1 Head Area Black, 101-103 dirty, 161 dirty.” R. Ex. 22. The hand-written remarks for this shift are difficult to read, however, they appear to say, “B.O. Bottom seg. @ 43, 109-119 getting dirty. Flakes piling outby Drive BO Bottom roller @ 96 ½ XC.” R. Ex. 22. The on-shift report makes no mention of the reported conditions. Instead, it appears that the mine manager spent the shift addressing water and roadway issues at the G.N. Travelway. Id.

b. September 18

i. 12 midnight to 8 a.m. shift (midnight shift)

The pre-shift report states that the following condition was reported to mine management: “Tail & scraper dirty & black.” R. Ex. 22. The examiner also includes in the remark section that: “108-119 getting dirty B.O. Bot. roller @ 96 ½ XC.” The on-shift report identifies the same hazardous condition reported to mine management (“Tail & scraper dirty”), but there is no indication that management took any action to address the condition as the “Action Taken” column for this item is left blank. R. Ex. 22.

ii. 8 a.m. to 4 p.m. shift (day shift)

The pre-shift report states the following: “Tail and scraper dirty and black. Dirty under rollers at 93 x-cut.” The conditions again were reported to mine management. R. Ex. 23. The remarks section states: “108-119 getting dirty, B.O. bottom roller at 96 ½ x-cut. Floor getting black [at] Tail – 150 x-cut.” The on-shift report repeats the reported conditions, without noting that any action was taken to address the conditions. The time and date on the “shift” line for this report is left blank. R. Ex. 23.

iii. 4 p.m. to 12 midnight shift (evening shift)

The pre-shift report states the following: “Tail & scraper getting Black; Dirty under rollers @ 93XC; 145.5 - 148 XC Dirty; 0/Cast@124XC.” It notes that the conditions were reported to mine management. R. Ex. 23. The remarks for the pre-shift state the following: “96 ½ Bottom Roller BO; 106-108 getting dirty, Acc; 109, 120xc Acc. getting dirty 150xc à Tail getting black.” The on-shift report states the following: “tail & scraper dirty,” and notes that the condition was “cleaned.” R. Ex. 23. I find that the tail scraper was cleaned after Miller discovered the violation at 5:15 p.m., since the shift had just begun, the conditions were present at least throughout the prior shift, and the accumulations cited were extensive. P. Ex. 2.

c. The Stockpiled Accumulation

During the inspection, Miller also observed that accumulations of coal had been removed from under the tail roller of the Northwest #3 belt and stockpiled behind the tail roller guard. Tr. I at 63, 226-27. Miller opined that there was no reason that Respondent could not have shoveled the coal back onto the belt. Tr. I at 222. The stockpiled accumulations were black in color and had not been rock dusted. They measured approximately six feet in width, two feet in depth, and eight feet in length.

Although Miller acknowledged that the stockpiled accumulations did not create a tripping hazard, he asserted that they would have provided additional fuel in the event of an ignition in the area. P. Ex. 2; Tr. I at 66-67, 230. Miller also issued a separate citation, not at issue here, alleging that the tail roller was not adequately guarded because the guard had been left open to clean the roller, and a long-handled shovel was in the opening of the roller. Miller testified that the stockpile was located behind the shovel, which indicates that some efforts to abate the stockpile had occurred. Tr. I at 223-27. Miller also stated in his notes that it was unknown how long the stockpile had existed. Tr. I at 229-30; P. Ex. 4, p. 6.

Miller opined that Alariai was “not real happy” after observing the stockpiled accumulations behind the tail roller guard and float dust in the air. Tr. I at 63, 85. Miller also testified that he and Alariai both expressed dissatisfaction with the conditions at the belt. Miller explained:

We held countless meetings with the mine operator. You know, as I said, you can see my notes. [I’ve] got scratched here, history in books. We’ve held countless meetings trying to eliminate these kinds of violations. I was sent there on these two inspections with a heightened awareness for 75.400 to try to get them under control by my supervisor. You know, we brought in people from our education and training to conduct classes to basically help re-instruct examiners on what they should be looking for, what should be reported in the books and so forth. So this was a condition that was being let go, and everyone was to the point that, hey, we’ve got to do something before we have a mine fire at this mine.

Tr. 86. Miller further testified that stockpiling accumulations in such a fashion is “an attempt to keep the mine in production and move on . . . .” Miller also opined that although “[t]his was an acceptable practice [at the mine] for a long time,” MSHA did not consider the practice to be an acceptable method of addressing coal accumulations. Tr. I at 151.

By contrast, Respondent’s site manager, Steve Willis, testified that it was not operator practice to stockpile accumulations behind tail rollers and that any stockpile of accumulations behind a tail roller was only temporary, until the accumulations could be transported to an area for safe shoveling onto the belt. Tr. I at 482, 485-87. Willis confirmed, however, that the stockpiled accumulations were the result of Respondent’s clean-up efforts, despite the fact that its “Clean Up Program” stated that “[l]oose accumulations of coal along the belt lines will be shoveled onto the belt.” Tr. I at 485; R. Ex. 15.

Miller also observed that the turning tail roller was suspending float coal dust into the air, and the condition was obvious. Tr. I at 239. Miller explained that float coal dust that has recently fallen from the belt is normally black, but that given time and friction, the coal dust takes on a brown or reddish brown color. Tr. I at 64-65, 84. Miller testified that he observed float coal dust with red-brown color, which indicated that the roller had been turning in coal, not for minutes, but for several shifts. Tr. I at 206-07. Miller further testified that absent a “train wreck” on the belt system, it is impossible for accumulations of this nature to develop over the course of one shift. Tr. I at 72-73.

Miller did not identify any defects with the belt system or rollers. Specifically, there were no misaligned belts, no belts rubbing on any structures, no broken or damaged rollers, no bad bearings, no hot or warm rollers or bearings, no metal-to-metal friction, and no smoke. Tr. I at 274-77. Furthermore, there were no electrical problems with the belt system in the Northwest #3 belt area and no problems with the water sprays. Tr. I at 108.

Significantly, Miller could not recall the exact nature of the damage to nearby stoppings. Tr. I at 94. When asked the nature of the damage to the stoppings, Miller replied, “I don’t recall. I want to say there was coal in the stopping that hadn’t been properly sealed.” In Miller’s view, this would have allowed smoke to contaminate the primary escapeway and injure between fourteen and thirty-two miners working inby. Tr. I at 93-94. Miller’s contemporaneous notes, however, indicate that he cited the stoppings at X-cut #5 and #14 where there was evidence of crushing and leaking. R. Ex. 1, p. 7. Miller’s notes further state that were an accident to occur, the damaged stoppings would contribute only to injuries that would result in lost workdays or restricted duty for two miners. Id. Miller testified that the hazard posed by the smoke would not be mitigated by the direction of the air flow. Tr. I at 93-94.

Site manager Willis testified that the miners were located approximately three and one-half to four miles inby the Northwest #3 tail area. Tr. I at 413-14; R. Ex. 4. Willis further testified that the air flow and air pressure in the primary escapeway was much greater than the airflow and pressure in the affected belt entry. Tr. I. at 416, 417, 426, R. Ex. 5. As a result, Willis opined that any leakage between the two areas caused by a damaged stopping would have been from the higher pressure primary escapeway into the lower pressure belt entry. Tr. I at 417, 425-26; R. Ex. 5, p. 3 (showing primary escapeway with air pressure of 130,700 cubic feet per minute (CFM), while belt entry has air pressure of 18,200 CFM.

Miller conceded that the mine’s fire detection and suppression measures were in compliance with MSHA regulations and that Respondent had provided adequate training to miners. Tr. at 263-264, 256, 288. Specifically, there were carbon monoxide (CO) monitors near the cited conditions that day, which were being monitored on the surface, and there were fire suppression systems on the Flannigan #1 belt head, drive and take-up areas, just inby the cited conditions. Tr. I at 263-264, 256. Miller also noted that lifelines were in place in the escapeways in compliance with MSHA regulations. Tr. I at 267.

Miller did not offer any testimony regarding what temperature (i.e., flashpoint) would be required to ignite the coal accumulations that were in contact with the tail roller. Willis, however, gave conflicting testimony as to whether the flashpoint temperature would have been exceeded under normal mining operations if the belt had continued to turn up loose coal and float dust.

JUDGE: If there was a tail roller that was spinning [in] an accumulation of coal, would that be enough heat and friction to trigger a [heat] sensor? [6]

A. No. I’ve never seen that happen. In all honesty, I haven’t.

JUDGE: What about a belt that was turning up coal dust or loose coal?

A. No, it would have to generate enough heat to where you almost have a fire, Your Honor, in order ---.

JUDGE: Well, how much heat would that generate?

A. It’s hard to say. If you have air moving over it, kind of like in this instance right here; if you have 18,000 cubic feet of air moving over it, it would have to maintain --- it would have to be doing that a long time in order to melt a sensor, which it eventually would. The heat sensor would definitely activate the sensors.

Tr. I at 438-39 (emphasis added).

Order No. 7490584 alleges that the accumulations posed a serious and substantial risk to miners as the condition was highly likely to result in an injury that could reasonably be expected to be fatal and affect at least ten persons. The violative condition was alleged to have resulted from high negligence and was designated as an unwarrantable failure. Miller based the S&S designation on the tail roller grinding in the accumulations, which he believed constituted a frictional ignition source. Tr. I at 62, 119. Miller testified that there was a damaged stopping inby and the escapeways would have been compromised from smoke, and the miners would have had to travel through it. Tr. I at 90. Miller concluded that “any time you’ve got fuel and . . . an ignition source, our training is that it’s more than . . . reasonably likely that a serious accident is going to occur and the condition is fatal.” Tr. I at 98. Regarding the unwarrantable failure designation, Miller testified that the accumulations were obvious and extensive, existed for a lengthy period of time, and that Respondent knew about the accumulations and took insufficient efforts to abate them. Tr. I at 98, 119, 139-40.

Subsequent to the inspection and upon consultation with managers and supervisors at the MSHA regional office, Miller was provided with guidance as to how to designate Order No. 7490584 as a repeated flagrant pursuant to 30 U.S.C. § 820(b)(2). Tr. I at 320-34. Miller attributed the flagrant designation to Respondent’s prior history of known, similar section 75.400 violations, including three 104(d) Orders under the same standard in the prior fifteen months, with severity of injury designated as more than permanently disabling.[7] Tr. I at 315-16, 323, 330; see also P. Ex. 1; P Exs. 5-31. MSHA further elected to waive the regular assessment formula contained in 30 C.F.R. 100.3 and instead issued a specially assessed penalty of $179,300 under erstwhile special assessment guidelines. See R. Ex. 3.

2. Order No. 7490599

On September 23, Miller issued 104(d)(2) Order No. 7490599, which alleged a violation of 30 C.F.R. 75.400 at the Flannigan Tailgate belt. P. Ex. 3. Respondent’s safety escort, Joe Myers, accompanied Miller during the inspection. Tr. I at 105. The Order states:

Float coal dust, a distinct black in color, and loose coal were allowed to accumulate under and around the energized tail roller of the Flannigan Tailgate conveyor belt. The accumulations measured approximately 6 inches to 14 inches in depth. Loose coal and coal float dust also extended outby the tail roller approximately 450 feet as well. The area was black and the turning tail roller was suspending float coal dust into the atmosphere. The bottom belt and bottom rollers were in contact with these accumulations.

P. Ex. 3.

Miller testified that the accumulations were a “distinct black in color,” or “jet black.” Tr. I at 108-09; P. Ex. 4. Miller testified that absent a “train wreck,” it would take more than two shifts for accumulations of this type and color to develop. Tr. I at 108, 314-15. On cross-examination, Myers conceded that the accumulations were “obvious,” and that he noticed the float coal dust immediately upon entering the area. Tr. II at 143. After Miller issued the Order, Myers “immediately shut down the belt to correct the situation.” Tr. II at 143.

One on-shift examiner was responsible for walking and examining the Flannigan Tailgate belt area, however, there is no record of the conditions Miller observed in the on-shift examination books. Tr. II at 87-89; R. Ex. 25. On cross, Miller conceded that the absence of any reference to the cited conditions in the examination books made the instant Order No. 7490599 different from the prior Order No. 7490584, discussed above. Tr. I at 312.

According to Raney, it took approximately one hour and a half for a team of four to six miners to shovel the accumulations onto the belt and to retrieve and apply rock dust to the cited area. Tr. II at 98-99, 108. The miners cleaned up the accumulations by shoveling the material back onto the belt, as was normal practice. Tr. II at 110.

Miller did not identify any defects in the tail roller. Specifically, there were no misaligned belts, no belts rubbing on any structures, no broken or damaged rollers, no bad bearings, no hot or warm rollers or bearings, no metal-to-metal friction, and no smoke. Tr. I at 274-77, 346-47. Miller acknowledged that Respondent utilized a number of fire detection and suppression systems and other safety measures. Tr. I at 356-57. Miller further testified that he did not identify any problems with these systems. Tr. I at 356-57.

In addition to the accumulation, Miller observed float coal dust suspended in the atmosphere. P. Ex. 3. Based on the red-brown color of the float dust, Miller concluded that the roller and belt had been grinding in coal for a significant period of time. P. Ex. 4, at p. 6; Tr. I at 116, 203. In his notes, Miller also noted the presence of “a lot of BLACK FLOAT DUST.” Id. at p. 8. Based on Miller’s thirty-one years of experience in the coal mine industry, and his experience shoveling along belts as a miner, Miller credibly testified that the grinding of coal -- in this case, against an energized tail roller -- will turn the material a lighter color. Tr. I at 203, 206-08.

Based on a contemporaneously created report, safety escort Myers testified that “[t]he bottom belt was wet and the area around the tailpiece was very wet, with water standing on both sides, roof and ribs well dusted.” Tr. II at 133; see also R. Ex. 26. Foreman Raney testified that there were places under the belt that were “holding water.” Tr. II at 110. Although Miller’s notes indicated that a small amount of wet material was present, he had no drawing or diagram showing where the wet material was located and he could not specifically recall where the wet material was located, although he thought that it was at the transfer point between the Pony Belt and the Flannigan Tailgate belt. Tr. I at 112-13, 213.

I credit Miller’s testimony that the float coal dust and loose coal that was accumulating under and around the tail roller was not wet. Tr. I at 113. His notes indicate that only a small amount of wet material existed, while noting the presence of “a lot of BLACK FLOAT DUST.” P. Ex. 4. As Miller explained, a large amount of float dust is an indicator of dry coal. Tr. I at 362. Moreover, Miller testified that the water sprays on the belt drive produce only a light mist and would not have created any water puddles at the tailpiece. Tr. I at 190. Accordingly, I conclude that the accumulations under and outby the tailpiece were mostly dry and combustible.

According to section foreman Raney, the midnight shift Production and Delay (P&D) report for September 23 shows three delays related to “Pony Belt ground fault” and a longer delay (120 minutes) described as: “Pony Belt would not run for more than 2-3 min[utes] & kick breaker.” Tr. II at 64-65; R. Ex. 21. Raney testified that the P&D reports and other records indicated that the Pony Belt was experiencing electrical problems with the ground monitor, which were fixed during the day shift on September 23. Tr. II at 65. Raney testified that when belts repeatedly stop and start, they could cause spillage. Tr. II at 67-68. He further testified that the feeder often could keep running when the belt was down, and this could grind up coal in the feeder, thereby facilitating suspension when the belt was restarted and the coal was transferred between the Pony and Flannigan Tailgate Belts. Tr. II at 68-69. Furthermore, he testified that coal, which had recently been sprayed with water when transferred from the feeder to the belt, would dry out during downtime, making accumulations more likely when the belt was restarted. Tr. II at 70.

Raney also testified regarding the direction of the airflow in the area where the violation occurred. Tr. II at 45-46; R. Ex. 4, p. 5. Raney testified that the airflow would go to the Number Four entry to the set-up face, and then go to the left, come up, sweep the faces, and then go back out the Number One entry of the set-up room, and then over to the Number One and Two entries, which were both returns, and leave out the tailgate. Tr. II at 46; R. Ex. 4, and R. Ex. 6, p. 5 (see ventilation map containing arrows of the airflow path). At the time of the Order, there was a break between the Flannigan tailgate and headgate, which had not been mined. Tr. II at 26-27; R. Ex. 4, p. 4. I note that the miners were located approximately six cross-cuts inby the cited location. Tr. I at 114; Tr. II at 42; see also R. Ex. 4, p. 3. Thus, I find that the miners would have had to evacuate the mine through the Tailgate area, in the event of a fire.

Order No. 7490599 alleges that the accumulations posed a serious and substantial risk to miners as the condition was highly likely to result in an injury that could reasonably be expected to be fatal and affect at least six persons. The violative condition was alleged to have resulted from high negligence and was designated an unwarrantable failure. Miller designated the violation as S&S based on the fact that the bottom belt and bottom rollers were in contact with the accumulations and the energized tail roller was turning in the accumulations, thus providing two separate potential ignition sources. Tr. I at 107, 119. Regarding the unwarrantable failure designation, Miller testified that, “if you go back to history, countless means no change in the attitude of the operator. These are conditions that the most casual observer should have detected. These were a problem.” Tr. I at 119. With regard to negligence, Miller referenced the Respondent’s “history, meetings, [and] repeated violations.” Id.

Subsequent to the inspection and upon consultation with managers and supervisors at the MSHA district office, Miller was provided with guidance regarding how to designate Order No. 7490599 as a repeated flagrant violation pursuant to 30 U.S.C. § 820(b)(2). Tr. I at 320-34. Miller attributed the flagrant designation to Respondent’s prior history of known, similar section 75.400 violations, including three 104(d) Orders under the same standard in the prior fifteen months, with severity of injury designated as more than permanently disabling. Tr. I at 315-16, 323, 330; see also P. Ex. 1; P Exs. 5-31. MSHA further elected to waive the regular assessment formula contained in 30 C.F.R. 100.3 and instead issued a specially assessed penalty of $164,700 under erstwhile special assessment guidelines. See R. Ex. 3.

3. Testimony of Allen McGilton

At the hearing, I permitted Allen McGilton, an employee of Respondent and a former MSHA coal mine inspector and field office supervisor with thirty-seven years of experience, to testify over the objection of the Secretary. Tr. II at 170-71, 182. During his tenure with MSHA, McGilton inspected thousands of miles of belts in over sixty coal mines. McGilton has extensive first-hand experience with mine fire and explosion emergencies. McGilton has trained and advised mining safety professionals both domestically and abroad. Id. at 177-82.

I also permitted the Secretary to move to strike McGilton’s testimony in her post-hearing brief. Id. at 170-71. Indeed, the Secretary did move to strike McGilton’s testimony in post-hearing brief, again arguing that his testimony is irrelevant because McGilton lacks any first-hand knowledge of the conditions existing at the Galatia North Mine portal, and that he had not been employed at the mine when the accumulations were cited. P. Br. at 47-49.

Having carefully reconsidered the matter, I reaffirm my ruling at the hearing and find McGilton’s testimony admissible and relevant to the issues before me. I am required to make an assessment of the gravity of the violation, including whether it is S&S. That requires an assessment of whether the hazard of fire contributed to by the violation was reasonably likely to result in an injury, and whether it was reasonably likely that any such injury would be of a serious nature. Although McGilton did not have first-hand knowledge of the conditions existing at the Galatia North Mine portal, and had not been employed at the mine when the conditions occurred, his experience with other coal mines nationwide, as well as his training and experience with MSHA is at least relevant to provide general background testimony regarding belt entry fires. Accordingly, I will consider McGilton’s testimony and give it the weight I deem appropriate.

McGilton testified that he had never seen or heard of a belt fire occurring from a roller that did not have a defect or condition such as a bad bearing, metal-to-metal friction, molten metal falling off the roller, a belt cutting into a stand, etc. Tr. II at 202-03. While McGilton knew of several reports and studies that addressed fire hazards in coal mines, he knew of none that concluded that friction between a tail roller and coal accumulations alone could lead to a fire, absent something wrong with the tail roller. Tr. II at 204.

III. Brief Summary of the Parties’ Initial Arguments on Brief

A. The Secretary’s Arguments

For both Order Nos. 7490584 and 7490599, the Secretary argues that Respondent violated section 75.400. P. Br. at 10-11, 24-26. Respondent allowed accumulations of loose coal and coal float dust to create points of friction with the energized tail rollers of the Northwest #3 and Flannigan Tailgate belts, and with the bottom belt at the Flannigan Tailgate. Id. Further, at the Northwest #3 belt, Miller observed accumulations of coal that had been removed from under, and stockpiled behind, the tail roller. P. Br. at 6. For Order No. 7490584, the Secretary relies on Miller’s notes and testimony describing the presence of float dust at the tail roller to argue that the accumulations were not wet. P. Br. at 10-11. For Order No. 7490599, the Secretary relies on Miller’s notes and testimony to argue that only a small and insignificant amount of wet material existed. P. Br. at 24-26.

The Secretary also argues that the violations were S&S. P. Br. at 11-18, 26-28. The Secretary contends that tail rollers grinding through coal accumulations constitute possible “ignition sources,” which are highly likely to ignite the accumulations and start a mine fire, assuming continued normal mining operations. Id. at 13, 26-28. Furthermore, the fire would have caused serious or fatal injuries, ranging from smoke inhalation to carbon monoxide poisoning to burns. Id. The Secretary relies on the belt fire in Aracoma, where two miners were killed. P. Br. at 15. The Secretary argues that any attempt to distinguish Aracoma based on the mine operator’s safety measures, including fire detection and suppression systems, flatly contradicts Buck Creek Coal, Inc., 16 FMSHRC 540, 542 (Mar. 1994) (ALJ), aff’d, Buck Creek Coal, 52 F.3d 133, 135-36 (7th Cir. 1995). P. Br. at 15-18.

The Secretary contends that the violations were the result of Respondent’s high negligence and unwarrantable failure to comply with section 75.400. Id. at 18-20, 21-24, 28-32. Based on Miller’s testimony, the Secretary attributes these designations to the mine operator’s history of violations under the standard, MSHA’s efforts to remediate this history, and the particular characteristics of the conditions cited. Tr. I at 137-38. The Secretary emphasizes that Respondent had knowledge of the violations, that they were extensive, dangerous and obvious, and that Respondent took no reasonable efforts to abate the violations. P. Br. at 21-24, 28-32. For Order No. 7490584, the Secretary argues that the cited conditions were identified on the pre- and on-shift examination books for four shifts, and Respondent did not eliminate them. Id. at 21. For Order No. 7490599, the Secretary claims that the obvious and extensive conditions existed for several shifts and Respondent knew or should have known about them and made no effort to clean them up, despite recurring notice that greater efforts were needed to eliminate such highly dangerous conditions. Id. at 30-32.

The Secretary also contends that the violations were flagrant under a broad interpretation of section 110(b)(2). Id. at 32-42. The Secretary argues that the phrase “a known violation” properly encompasses Respondent’s history of any similar, known violation. Id. The Secretary asserts that Respondent repeatedly encountered dangerous, known accumulations in the sections, crosscuts and entries of the area that it was mining, which were substantially similar to the current, known violations. P. Br. at 34, 36-37. The Secretary further argues that the accumulations reasonably could have been expected to cause death or serious bodily injury through smoke inhalation, entrapment and/or death. Id. at 40-42. Therefore, the Secretary argues that the violations cited in Order Nos. 7490584 and 7490599 were correctly assessed as flagrant under Section 110(b)(2).

In addition, the Secretary argues that the criteria established for determining flagrant violations as set forth in the Procedural Instruction Letter (PIL) was not invalid rulemaking, and that her interpretation of section 110(b)(2) is entitled to deference under Chevron v. Natural Res. Def. Council, 467 U.S. 837 (1984). P. Br. at 34-36, 42-44. The Secretary also disputes Respondent’s contention that the flagrant penalty assessments constitute excessive fines under the Eighth Amendment, and that inadequate notice of the flagrant violations was given under the Fifth Amendment Due Process Clause. P. Br. at 44-47. Finally, the Secretary denies that her interpretation of section 110(b)(2) is so vague as to encourage arbitrary enforcement. P. Br. at 46.

B. The Respondent’s Arguments

As a threshold matter, Respondent argues that there are a number of factual misstatements regarding the evidence and testimony in the Secretary’s Post-Trial Brief. R. Reply Br. at Ex. A. Respondent also argues that the alleged violations were not S&S, primarily because the Secretary failed to identify an ignition source. R. Br. at 4-7, 25-27. Respondent emphasizes that there were no identifiable defects in the tail roller or belt equipment, and therefore the likelihood of a mine fire was too speculative. Id. at 6-7, 25-28; R. Reply Br. at 1-3. Respondent contends that its safety measures, equipment, and training would have mitigated any serious injury in the event of a fire, and a fire would have only caused minor injuries due to smoke inhalation. Id. at 9-13, 28-34. Respondent also contends that only one or two miners, not six to ten, would have been injured in a fire. Id. at 15-17, 33-34.

In addition, Respondent argues that the Secretary’s reliance on Buck Creek is misplaced when it comes to determining the degree and severity of a hazard. Respondent contends that discounting evidence of airflow, ventilation controls, stoppings, CO monitors, fire suppression systems, firefighting equipment, specially trained fire brigades, and recently conducted escapeway and fire drills for such determinations “belies reality and would render the regulatory guidelines for gravity meaningless.” R. Reply Br. at 3-4.

Respondent further argues that the alleged violations did not result from high negligence or an unwarrantable failure. R. Br. at 17-24, 34-40. With respect to Order No. 7490599, Respondent argues that there was some wet material in the area, and the cited condition did not result from “high,” but rather “moderate” negligence. R. Br. at 26, 34-40. For Order No. 7490584, Respondent argues that the Secretary failed to prove that the accumulations existed for four shifts because the pre- and on-shift reports only showed some of the conditions described in the Order, and the belt could have had mechanical defects causing spillage. Id. at 18. For Order No. 7490599, Respondent claims that during the previous two shifts, electrical problems with the Pony Belt caused sudden stops and starts and caused spillage. Id. at 36-37. Thus, Respondent argues that the accumulations existed for two shifts, at most. Id. Respondent also argues that it did not have knowledge of this violation because the Flannigan Tailgate was not in a travelway that was typically used by miners. Id. at 40-41; R. Reply Br., Ex. A, at 4. Respondent also posits that neither violation was extensive. Id. at 21, 37. Further, Respondent claims that the Secretary failed to provide notice that the Northwest #3 or Flannigan Tailgate areas were trouble spots, and Respondent took efforts to abate the specific violations and accumulations generally. Id. at 21-22, 38. In addition, Respondent contends that the violations were not dangerous, relying on its arguments regarding S&S. Id. at 24, 40.

In Respondent’s view, the Secretary relies on an overly broad interpretation of section 110(b)(2). Id. at 56-58. Respondent argues that the PIL was not promulgated pursuant to Section 101 of the Act. Therefore, the criteria therein cannot be utilized to support a “flagrant” designation. R. Br. at 53-54. More specifically, Respondent says that the Secretary cannot consider the Respondent’s history of similar violations when determining what constitutes a “repeated failure to make reasonable efforts to eliminate a known violation.” Id. at 56-58. Rather, Respondent claims that “a known violation” constitutes a singular violation, i.e., a “repeated failure to … eliminate a known violation,” as opposed to any kind of separate or multiple violations. Id. at 56; R. Reply Br. at 6-7. Respondent also claims that it took reasonable efforts to eliminate the violative conditions, which were not “known.” R. Br. at 58-60. In addition, Respondent argues that the accumulations were unlikely to cause death or serious bodily injury. Id. at 59-60.

Respondent also contends that the Secretary’s interpretation of the flagrant provision should receive no Chevron deference because the interpretation has been a “moving target.” R. Reply Br. at 5-6. Respondent further argues that absent rulemaking by MSHA, Commission judges should not make new law on the complex and technical matters regarding the definition of a flagrant violation. R. Br. at 55. Respondent contends that, under the Mine Act, MSHA was required to propose more precise rules regarding flagrant violations, but that it chose to avoid controversy, and perhaps extended rulemaking, by failing to do so. Id. Respondent argues that Commission judges should decline to enforce the flagrant designations until such time as MSHA decides to conduct more thorough and appropriate rulemaking. Id.

Finally, Respondent contends that the flagrant penalty assessments are excessive fines under the Eighth Amendment, and that the vague statutory language in section 110(b)(2) fails to provide adequate notice under the Due Process Clause and encourages arbitrary enforcement Id. at 42-52. Respondent further claims that arbitrary enforcement in fact occurred in this instance. Id. at 46-49; R. Reply Br. at 8.

Based on the foregoing arguments, Respondent proposes a reduced penalty of $11,307 for Order No. 7490584 and $3,406 for Order. No. 7490599. R. Br. at 25, 41.

IV. Application of Legal Principles

A. Violations of § 75.400

30 C.F.R. § 75.400 provides:

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.

Section 75.400 prohibits accumulations, not mere spillages. See Old Ben Coal Co. (Old Ben II), 2 FMSHRC 2806, 2808 (Oct. 1980). The Commission in Old Ben stated that some spillage of combustible materials may be inevitable in mining operations and bright line differentiates the two terms, and that whether a spillage constitutes an accumulation under [30 C.F.R § 75.400] is a question, at least in part, of size and amount. This, an accumulation exists if “a reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would have recognized the hazardous condition that the regulation seeks to prevent.” Utah Power & Light Co., 12 FMSHRC 965, 968 (1990), aff’d, Utah Power & Light Co. v. Sec’y of Labor, 951 F.2d 292 (10th Cir. 1991); see also Old Ben II, supra, 2 FMSHRC at 2808 (“[T]hose masses of combustible materials which could cause or propagate a fire or explosion are what Congress intended to proscribe.”); Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 558 (D.C. Cir. 2012).

The Commission has expressly rejected the argument that accumulations of combustible materials may be tolerated for a reasonable time. See, e.g., Old Ben Coal Co. (Old Ben I), 1 FMSHRC 1954, 1957–58 (Dec. 1979) (section 75.400 “was directed at preventing accumulations in the first instance, not at cleaning up the materials within a reasonable period of time after they have accumulated”). The Tenth Circuit in Utah Power and Light similarly stated that “while everyone knows that loose coal is generated by mining in a coal mine, the regulation plainly prohibits permitting it to accumulate; hence it must be cleaned up with reasonable promptness, with all convenient speed.” Utah Power & Light, supra, 951 F.2d at 295, n. 11.

Respondent does not challenge the violations anywhere in its briefs. See generally, R. Br. and Reply Br. Furthermore, nowhere in the record does Respondent contest the violations. See generally Tr. I and II. I find that Respondent concedes the violations of section 75.400 for Order Nos. 7490584 and 7490599.[8]

B. Significant and Substantial and Gravity Determinations

1. Legal Principles

The Mine Act defines an S&S violation as one “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is S&S “if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

To establish an S&S violation under National Gypsum, the Secretary must prove the four elements of the Commission’s subsequent Mathies test: (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. See Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal, supra, 52 F.3d at 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). An evaluation of the reasonable likelihood of injury is made assuming continued normal mining operations. U.S. Steel Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC 1573, 1574 (July 1984).

The Commission has held that, in examining the third element of the Mathies test for those violations that involve hazards of ignition or fire, the Secretary must prove that such a hazard is reasonably likely to occur, in addition to proving that the hazard is reasonably likely to result in an injury. Ziegler Coal Co., 15 FMSHRC 949, 953 (June 1993). The Commission held in Ziegler Coal that a finding that a fire or explosion hazard is reasonably likely to occur is a necessary pre-condition to finding that an injury is reasonably likely to occur. Id., citing U.S. Steel Mining, 6 FMSHRC 1834, 1836 (Aug. 1984).

At the same time, the Commission has long held that “[t]he fact that injury [or a condition likely to cause injury] has been avoided in the past or in connection with a particular violation may be ‘fortunate, but not determinative.’” U.S. Steel IV, supra, 18 FMSHRC at 867, quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986). See also Elk Run Coal Co., 27 FMSHRC 899, 906-07 (Dec. 2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996).

The Commission has provided the following S&S guidance for accumulation violations:

When evaluating the reasonable likelihood of a fire, ignition, or explosion, the Commission has examined whether a “confluence of factors” was present based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). Some of the factors include the extent of the accumulations, possible ignition sources, the presence of methane, and the type of equipment in the area. Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May 1990).

Enlow Fork Mining Co., 5 FMSHRC 5, 9 (Jan. 1997).

2. Order No. 7490584

I find the violation in Order No. 7490584 to be S&S. The Secretary established the first two elements of the Mathies test. An accumulations violation occurred, which contributed to a discrete fire and smoke hazard. Regarding the third element of Mathies, the Secretary demonstrated that the cited accumulations were reasonably likely to cause a mine fire, which was reasonably likely to result in an injury. Although there were no current defects in the tail roller, I credit inspector Miller’s testimony that the tail roller was grinding through coal and this was an ignition source. I find that a fire was reasonably likely to occur during normal continued mining operations. Tr. I at 62-63, 372. Concerning the fourth element of Mathies, I find that injuries resulting from the fire were reasonably likely to be serious in nature.

Although I find little support for the inspector’s determination that a fire was highly likely to occur, Circuit Court and Commission case law support the proposition that a tail roller turning in coal accumulations is reasonably likely to be an ignition source for S&S purposes, despite the lack of any defects in the belt or rollers. The present case is analogous to Buck Creek, supra. In Buck Creek, the judge affirmed the S&S designation and reasoned that a tail roller that was completely covered and turning in combustible coal fines could easily become an ignition source that could cause a fire if the roller became heated, despite the apparent absence of evidence that the tail roller was hot or that any defects in the roller were present. 16 FMSHRC at 542.

The Commission denied review of the ALJ’s decision and the case was appealed to the Seventh Circuit. The Seventh Circuit affirmed the judge’s S&S determination despite Buck Creek’s arguments that the inspector found no evidence of combustible gases, electrical problems, defects in safety equipment/apparatus used to prevent fires, or that the roller was subject to heated conditions. Reply Brief of Appellant at 1, Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133 (7th Cir. Mar. 28, 1995) (No. 94-2084), 1994 WL 16179739, at *2-3 (italics added). The Seventh Circuit affirmed the judge’s credibility determinations concerning the opinion of an inspector with thirty-two years of mining experience, who specialized in mine ventilation issues. Id. at 135. In addition, the court observed that safety measures in place to address a fire “does not mean that fires do not pose a serious safety risk to miners.” 52 F. 3d at 135-36.

Buck Creek is not the only case supporting the Secretary’s position. Similarly, in Amax Coal Co., 19 FMSHRC 846, 848-850 (May 1997), the Commission again affirmed the judge’s finding that a reasonable likelihood of a fire was present when accumulations of dry loose coal and float coal dust were allowed to accumulate at the junction of a head roller and mother belt.[9] On appeal, the Commission upheld the judge’s S&S finding based on the potential ignition source created by frictional contact between fifteen feet of belt and the accumulation of packed dry coal and loose coal. 19 FMSHRC at 849-50. Further, the Commission rejected Amax’s arguments that “a miner working in the area at the time the order was issued ‘would have detected the smell of any combustion’ and taken appropriate measures to alert the mine’s communication center, and that the presence of fire detection systems, self-contained self rescuers, and firefighting equipment in the cited area minimized the risk of injuries from a fire.” Id.

In addition, a number of Commission judges have concluded that an accumulation violation is S&S based solely on contact between accumulations and mechanized equipment, which lacks any defects. These colleagues have concluded that such contact, by itself, constitutes a potential ignition source sufficient to support an S&S finding. See American Coal Co., 33 FMSHRC 2803, 2809-10 (Nov. 2011) (ALJ) (finding an S&S violation where a feeder in accumulations of loose coal and coal float dust was deemed a potential ignition source, despite the fact that the feeder was not defective); Bledsoe Coal Co., 2012 WL 5178246 *26 (Oct. 2012) (ALJ) (concluding that the issue of defects is irrelevant to the S&S analysis).

Based on the confluence of factors present here, I find that the frictional grinding of the tail roller in the loose coal is a potential ignition source, which is reasonably likely to cause a mine fire.[10] Although inspector Miller did not provide testimony addressing the flashpoint of the coal dust and fines, I credit his testimony regarding the risk of frictional heating. Tr. I at 62. I further credit Willis’ admission that, given enough time, friction from a belt running in coal could cause enough heating to trigger belt heat sensors.[11] Tr. I at 438-39. Under existing Circuit Court and Commission precedent, it is not necessary for the Secretary to show a mechanical defect in order to prevail on an S&S designation for an accumulations violation. See Buck Creek, supra, 16 FMSHRC at 542, aff’d, 52 F.3d at 135-36; Amax Coal, supra, 19 FMSHRC at 848-51; Black Beauty, supra, 33 FMSHRC at 1486-87, aff’d, 703 F.3d at 555 (D.C. Cir. 2012). Thus, under continued normal mining operations, despite McGilton’s testimony to the contrary, I conclude that the frictional heat caused by the tail roller turning in coal accumulations was reasonably likely to cause a fire.[12]

I also find that the Secretary satisfied the fourth element of the Mathies test. I credit Miller’s testimony that if normal mining operations continued and the accumulations were left unabated, it would have been reasonably likely that a fire would occur, thereby exposing miners to serious injuries from the smoke that could bypass the inadequate stoppings and enter the primary escapeway.

Although Miller determined that such injuries could be reasonably expected to be fatal, little factual evidence exists to bolster the inspector’s determination. Miller testified that he was trained to cite all violations where there is fuel and an ignition source exists as “fatal,” but he fails to relate the conditions of the present Order to the actual risk posed to miners located miles away from the ignition source at this particular mine. See Tr. I. at 98. Unlike accumulation violations in other cases, Miller never specifically testified that a fire would pose risks of burns, carbon monoxide poisoning, explosion, entrapment of escaping miners, or that miners at the face would be inundated by smoke and unable to locate the escapeways. Instead, Miller only alleged a smoke hazard whereby ten or more miners evacuating the mine in the primary excapeway would be exposed to an unknown amount of smoke that was able to bypass the inadequate stoppings. Tr. I at 92, 93. When asked why the order was written as “fatal,” Miller testified:

It’s highly likely it could have occurred if we hadn’t found the condition and corrected it. I believe that if we had not found the condition, it would have turned into a mine fire, so ---. And the fatal --- I think there’s two ways you get a fatal. There was a stoppage of damage inby --- if you have a mine fire, you’re going to have smoke. This is a long way back into the mine here. Guys would have had to travel through the smoke. The escapeways would have more than likely been compromised. You know, we had that disaster, as I mentioned, at Aracoma, that miners didn’t get out on a lifeline. Smoke prevented them from getting out, and we had a fatal there. So I think that, you know, there’s a real good chance that we would have had fatal injuries if this event occurred.

Tr. I at 90.[13]

As the history of violations shows, MSHA has not determined that all accumulation hazards pose a fatal risk to miners. P. Ex 5-31.[14] When questioned as to the discrepancy between the violative condition at issue and past citations and orders that have identified the type of injury that could be reasonably expected from an accumulations violation that contributed to a mine fire as “lost workdays or restricted duty” and rarely as “permanently disabling,” Miller testified that the violations at issue were generally “extreme,” but he did not state how he reached this conclusion, nor did he provide any facts differentiating the prior cited conditions. Tr. I at 132-33. Was the size of the accumulation extreme or did the location of the accumulation pose a more dangerous threat than past violations? The undersigned is left only to guess and attempt to fill in the blanks in an incomplete narrative.

I further note that the Secretary has not offered sufficient evidence as to the amount of smoke that miners would have been exposed to in the primary or secondary escapeways to justify the contention that the hazard would reasonably likely result in fatal injuries. Miller testified that the stoppings would normally isolate the belt area from the escapeways, but the damaged stoppings that were cited during the same inspection would allow smoke to contaminate the primary excapeway. Tr. I. at 94. Although Miller could only guess at the hearing about the nature of the damage to the stoppings near the accumulations, his contemporaneous notes indicate that he cited the stoppings at crosscut #5 and #14, where there was evidence of crushing and leaking. R. Ex. 1, p. 7; see also Tr. I at 94 (when asked about the nature of the damage to the stoppings, Miller replied, “I don’t recall. I want to say there was coal in the stopping that hadn’t been properly sealed.”). Miller’s notes from this separate citation further state that were an accident to occur, the damaged stoppings would only contribute to injuries that would result in lost workdays or restricted duty of two miners. Id.

I am not, however, persuaded by Willis’ testimony that in the event of a fire, any leakage of air would be confined from the higher pressure primary escapeway into the belt entry. See Buck Creek, supra, 52 F.3d at 136 (rejecting mine operator’s argument “that the mine is ventilated in such a way that the smoke would have been pulled away from the area where workers were located.”). In these circumstances, I credit Miller’s testimony, based on his thirty-one years of experience, that the flow of air along the beltway would not prevent some leakage where the stoppings were damaged. Tr. 93-94.

Although the determination of an inspector should not be dismissed lightly, the Secretary has the burden of proof and must convey, at the very least, a plausible explanation for the inspector’s gravity determinations. It is not enough for the inspector to present the circular argument that a hazard is fatal because he thought people might die. To afford such testimony weight would, in essence, shift the burden to the Respondent to disprove the Secretary’s allegations. Accordingly, I find that the Secretary failed to prove that the facts of the violative condition could reasonably likely be expected to result in a fatal injury.

Finally, I credit Miller’s representation that at least ten miners would be affected were a fire to start and smoke enter the primary escapeway. Tr. I at 91. Inspector Miller’s uncontroverted testimony established that there were two super units where between fourteen and sixteen miners worked inby the cited condition. Id. at 92. I expressly reject Respondent’s argument that the number of people affected should be limited to the number of people that might actually be injured in an accident. Such an analysis would be far too speculative and contrary to the purposes of the Mine Act that seeks to prevent all miners from exposure to unsafe working conditions. Therefore, the gravity of this Order must reflect the fact that more than ten miners would have been exposed to the smoke hazard in the primary excapeway.

In sum, I conclude that the Secretary demonstrated that the 75.400 violation is S&S. The Secretary has established a violation that contributes to a discrete safety hazard, satisfying the first and second prongs of the Mathies test. Furthermore, the frictional contact between the coal accumulations and the tail roller was reasonably likely to cause a mine fire, which would produce an injury under the third prong of Mathies. Finally, any injuries were reasonably likely to be serious in nature (i.e., lost workdays or restricted duty) under the fourth Mathies prong. See, e.g., Buck Creek, supra, 16 FMSHRC at 542-43 (ALJ) (finding that “smoke and gas inhalation” would cause a reasonably serious injury “requiring medical attention” for S&S purposes), aff’d 52 F.3d at 135-36 (7th Cir. 1995). Therefore, I affirm the S&S designation for Order No. 7490584.

3. Order No. 7490599

Basically for the same reasons set forth above with regard to Order No. 7490584, I find that the Secretary established that the violation was S&S. I have credited Miller’s testimony that a fuel source and two frictional ignition sources were present in the Flannigan Tailgate area. As noted above, the lack of defects does not negate the existence of these ignition sources. I also conclude that the accumulations under and outby the tailpiece were mostly dry and combustible. I credit Miller’s testimony that only a small amount of wet accumulations were present and that the accumulations under and outby the tailpiece were mostly dry and combustible. I also credit Miller’s testimony that the black color of the accumulations indicated that the operator did not rock dust the area for quite some time. Furthermore, it is well settled that even wet or damp accumulations can dry out and ignite. See Utah Power & Light, 12 FMSHRC 965, 969 (May 1990).

The analysis of the gravity of Order No. 7490599, however, differs from the gravity analysis for Order No. 7490584 in several ways. In the condition cited in Order No. 7490599, the accumulations were much closer inby, only a few crosscuts removed from the working section. Tr. I at 121. There appears to be no stoppings that would isolate escaping miners from the effects of a fire. See R. Ex. 4, p. 5. As the miners would be exposed to an unmitigated smoke hazard, I affirm Miller’s determination that any injuries that were to occur from a fire could reasonably be expected to result in serious, possibly fatal injuries. In addition, based on Miller’s uncontroverted testimony that only the miners working inby the Flannigan Tailgate would be exposed to the hazardous condition, I find that the number of miners affected is six. Tr. I at 121.

Accordingly, I conclude that a fire was reasonably likely to occur as a result of the frictional heat generated between the loose coal and the energized tail roller. I further find that a mine fire was reasonably likely to occur during continued normal mining operations and cause serious, possibly fatal injuries, which may include smoke inhalation, carbon monoxide poisoning, burns, and entrapment to the six miners working inby the Pony Belt. Thus, I affirm the S&S designation for Order No. 7490599.

C. Unwarrantable Failure

1. Legal Principles

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d). It 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, supra, 52 F.3d at 136 (approving Commission’s unwarrantable failure test).

The Commission has recognized that whether conduct is “aggravated” in the context of an unwarrantable failure is determined by considering the facts and circumstances of each case to determine if any aggravating or mitigating circumstances exist. Such factors include the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious, whether the violation posed a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (“Consol”); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 43 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). A judge has discretion to determine that some factors are irrelevant or are less important than other factors under the totality of circumstances. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009).

The Secretary bears the burden of proving all elements of an unwarrantable failure by a preponderance of the evidence. If an operator reasonably, but erroneously, believes in good faith that the cited conduct is the safest method of compliance with the applicable regulations, its actions will not constitute aggravated conduct that exceeds ordinary negligence. Jim Walter Res., Inc. v. Sec’y of Labor, 103 F.3d 1020, 1024 (D.C. Cir. 1997).

2. Legal Analysis

Having duly considered each unwarrantable failure factor below, I find that the Secretary established by a preponderance of the evidence that Respondent exhibited aggravated conduct through a “serious lack of reasonable care” by permitting the accumulations to persist. The evidence in the record shows that the accumulations in Order No. 7490584 existed for three shifts and that the accumulations in Order No. 7490599 existed for at least two shifts. Respondent had knowledge of the conditions cited in Order No. 7490584 and should have known of the conditions cited in Order No. 7490599. The conditions cited in both orders were extensive, obvious, and dangerous, and Respondent failed to make reasonable efforts to abate the violations prior to the issuance of the Orders. I discuss below, the applicability, vel non, of the relevant unwarrantable failure factors under Commission precedent.

a. The Extent of the Violative Conditions

The Commission has viewed the extent of a violative condition as an important element in the unwarrantable failure analysis. IO Coal Co., 31 FMSHRC 1346, 1351-52 (Dec. 2009). This factor considers the scope or magnitude of the violation. See Eastern Associated Coal, 32 FMSHRC 1189, 1195, citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 708 (June 1988). As explained below, the extensiveness factor favors a finding of unwarrantable failure for both Orders.

i. Order No. 7490584

The narrative in Order 7490584 states that the accumulations measured approximately “6 inches to 29 inches in depth.” P. Ex. 2. Furthermore, the accumulations of coal that had been removed from under the tail roller in the past had been stockpiled behind the tail roller guard and measured approximately “6 feet in width, 2 feet in depth, and 8 feet in length.” Id. In addition, loose coal and float coal dust extended outby the tail roller approximately “150 feet as well as 40 feet inby the tail roller.” Id. I credit Miller’s testimony that the amount of accumulations that he observed was “a lot more than what you should see . . . on a tail roller if it’s being properly maintained.” Tr. I at 63. Furthermore, the accumulations in the present case mirror those found to be extensive in Buck Creek, supra, 16 FMSHRC at 542, aff’d Buck Creek, 52 F.3d at 136 (accumulation of nine inches of coal under the feeder and in the dumping points was extensive). Accordingly, on balance, I find that the extensiveness factor weighs in favor of an unwarrantable failure finding.

ii. Order No. 7490599

For essentially the same reasons as the previous Order, I find that the accumulations described in Order No. 7490599 were extensive. The accumulations measured six to fourteen inches in depth. P. Ex. 2. Miller cited 450 feet of loose coal and float dust located in active and possibly inactive workings. Tr. I at 308-12 (Miller was unsure of the location of the feeder). Raney testified that it took approximately one and a half hours for a team of four to six miners to shovel the accumulations onto the belt and to retrieve and apply rock dust to the cited area. Tr. II at 98-99, 108, 110. As with Order No. 7490584, the accumulations mirror those found to be extensive in Buck Creek. Accordingly, I find that the extensiveness of the violation weighs in favor of an unwarrantable failure finding.

b. The Duration of the Accumulation Violations

The Commission has emphasized that the duration of the violative condition is a necessary element of the unwarrantable failure analysis. See, e.g., Windsor Coal Co., 21 FMSHRC 997, 1001-04 (Sept. 1999) (remanding for consideration of duration of cited conditions). As explained below, I find that this factor supports an unwarrantable failure finding for both Orders.

i. Order No. 7490584

Miller credibly testified that the accumulations described in Order No. 7490584 were a “distinct black in color,” or what he would describe as “jet black.” Tr. I at 108-09; P. Ex. 4. Based on the color and condition of the accumulations and the amount of accumulations observed, Miller concluded that the condition had existed for several shifts. Tr. I at 314-15. He explained that as coal is transferred from belt to belt, some float dust gets in the air, but the black color of the accumulations on a rock-dusted surface indicates that the condition had existed for quite some time. Tr. I at 71-72.

I credit Miller’s undisputed testimony that the black color of the accumulations was indicative of the fact that they existed for “quite some time.” Tr. I at 64-65. In addition, the pre-shift and on-shift reports for September 17 and 18 indicate that the accumulations existed during the 4 p.m. to midnight shift on September 17, during the midnight to 8 a.m. and 8 a.m. to 4 p.m. shifts on September 18, and during the first hour and 15 minutes of the 4 p.m. shift on September 18. See R. Exs. 22-23. Thus, I conclude that the accumulations existed for over three shifts, and definitely long enough that they should have been cleaned up prior to Miller’s arrival. In this regard, I note that the Commission has expressly rejected the argument that “accumulations of combustible materials may be tolerated for a ‘reasonable time.’” Black Beauty, supra, 703 F.3d at 558-59, quoting Old Ben Coal, supra, 1 FMSHRC at 1957–58; see also Utah Power, supra, 12 FMSHRC at 968 (section 75.400 “was directed at preventing accumulations in the first instance, not at cleaning up the materials within a reasonable period of time after they have accumulated.”).

Respondent argues that the Secretary failed to establish that the accumulations cited in Order No. 7490584 were present during the shifts because the examination reports for the pre-shift and on-shift inspections on September 17 and 18 reflect only some of the conditions cited in the Order. R. Br. at 18-19; R. Exs. 22-23. Respondent argues that these shift reports fail to mention the alleged stockpile, the roller turning in accumulations, any suspended float coal dust, or any accumulations on the floor outby the tail. R. Br. at 18-19; R. Exs. 22-23.

I am not persuaded by Respondent’s argument. Respondent overlooks the fact that the reports repeatedly indicate that the tail area and scraper were “dirty” and/or “black.” R. Exs. 22-23. It is reasonable to infer from examiner notations that a tail area, scraper, and rollers are “dirty” and “black,” that there are accumulations of loose coal or float coal dust in that area. In evaluating whether the terms “dirty” and “black” are vague or ambiguous, I view these terms in context and conclude that they are essentially a euphemism for coal accumulations. The purpose of recording mine conditions in the pre-shift and on-shift examination reports is to document any hazardous conditions that need to be addressed under the statute and regulations. It is reasonable to infer on this record that “dirty” and “black” refers to accumulations of loose coal and float coal dust, as opposed to non-combustible mud or dirt, or some other non-violative condition, as Respondent suggests. Accordingly, I find it more likely than not that the pre-shift and on-shift reports for September 17 and 18 refer to the same accumulations that Miller cited in Order No. 7490584, which I have found existed for over three shifts.[15]

Respondent also argues that mine examiner findings on other dates, which explicitly describe tail rollers grinding through coal accumulations, indicate that the mine examiners compiling the reports for September 17 and 18 would have included such a description had such conditions been present. R. Br. at 19; Tr. II. at 115; R. Ex. 24a. Specifically, Respondent relies on the fact that on September 6, a mine examiner noted that there was a “tail roller running in wet fines.” R. Ex. 24a. Moreover, on September 7, a mine examiner noted that there was “slurry in the walkway at drive take-up[,] and that slurry fines need [to be] cleaned outby in the drive and the take-up.” Tr. II at 130; R. Ex. 24a. Respondent emphasizes that the mine examiner who filled out the September 6 pre-shift report was the same examiner who filled out the pre-shift reports for September 17 and 18 and used the words “dirty” and “black,” thereby negating the possibility that the discrepancies were attributable to different mine examiners having different methods for reporting violations. R. Ex. 24a; R. Exs. 22-23. Accordingly, Respondent argues that if the tail roller was turning in accumulations, it would have been noted.

I am not persuaded by this evidence and argument. Initially, I note that the mine examiner findings relied on by Respondent refer to wet fines and slurry, not dry combustible accumulations. Furthermore, despite this evidence, I still find it more likely than not that the descriptions in the examination reports for September 17 and 18 describe the violations that Miller noted in Order No. 7490584. The pre-shift report for the 8 a.m. to 4 p.m. day shift on September 17 informs management that the Northwest #3 belt was dirty, there were accumulations from take-up to head roller, and the floor was gray, while the on-shift report describes the violative condition as dirty. The pre-shift report for the 4 p.m. to 12 midnight shift on September 17 states, inter alia, that the tail area was black and the tail scraper was dirty, while the on-shift report makes no mention of the conditions. Pre-shift reports for both the 8 a.m. to 4 p.m. shift and the 4 p.m. to 12 midnight shift for the Northwest #3 belt area on September 18 describe the rollers as being “dirty” underneath. R. Ex. 23. The on-shift reports for the 8 a.m. to 4 p.m. shift that day also describe the rollers as “dirty.” In addition, when analyzing the examination reports in conjunction with Miller’s notes and the narratives in his Order, I find it more likely than not that said reports refer to the same accumulations cited in the Order.

Furthermore, I am not convinced by Respondent’s argument that the accumulations at the tail roller likely were of very recent origin because conditions at belt transfer points can create problems quickly. See Tr. I at 186. Respondent relies on Miller’s admission that a variety of problems at transfer points could cause spillage and accumulations. Such problems include misaligned belts, defective or improperly installed water sprays, or broken/bent scrapers, which allow coal to be carried back and deposited at the tail roller. Tr. I at 145, 184-86; R. Br. at 20-21. Respondent’s argument, however, is undercut by its additional argument and Miller’s testimony that no defects in the tail roller or the conveyor belt system existed on the date of the violation. R. Br. at 6-7. Furthermore, Miller credibly testified on cross that he would have cited Respondent for these defects had he observed them. Tr. I at 274. Respondent cannot have it both ways. Accordingly, I reject Respondent’s suggestion that the accumulations were very recent due to defects in the belt or rollers.

In sum, based on the combined weight of Miller’s testimony concerning the color and amount of the accumulations, reasonable inferences drawn from the language of the pre-shift and on-shift examination reports, and the absence of any evidence that the belt had torn or gone down suddenly, I find that the accumulations in Order No. 7490584 existed for at least three shifts. Tr. at 72-73. Commission precedent supports an unwarrantable failure finding where the accumulations have lasted for less than one shift. See Windsor Coal, supra, 21 FMSHRC at 1002; see also Buck Creek, supra, 52 F.3d at 136 (finding unwarrantable failure where cited accumulation was present at least since the previous shift); Old Ben Coal, supra, 1 FMSHRC at 1959 (finding unwarrantable failure where accumulation existed for less than one shift). Accordingly, the duration of the violation here weighs in favor of finding an unwarrantable failure.

ii. Order No. 7490599

The Secretary has demonstrated that the accumulations described in Order No. 7490599 existed for about two shifts, a period of time long enough that action was necessary to eliminate them. I credit Miller’s testimony regarding the color and amount of the accumulations. Specifically, Miller testified that the accumulations were a “distinct black in color,” or what he would describe as “jet black.” Tr. I at 108-09; R. Ex. 4. He testified that absent a “train wreck,” it would take a significant period of time for accumulations of this type and color to develop. Tr. I at 108. Miller explained that as float dust deposits on the rock-dusted surfaces, it slowly changes the color of the surfaces from white, to gray, to black. Tr. I at 71-72.

Unlike the prior Order, where there appears to have been a well-documented build up in accumulations over the course of three shifts, Order No. 7490599 seems to present the proverbial “train wreck” scenario during the first shift on September 23. The Pony Belt had breaker issues for the preceding five shifts, but during the aforementioned shift, the problem got so bad that the Pony Belt would only run for two to three minutes before the breaker would be tripped. R. Ex. 21. Based on foreman Raney’s testimony that repeated starting and stopping of the belt would cause spillage, I find that it is likely that loose coal and coal dust began building up about two shifts before the condition was cited. Tr. II at 67-70. As noted above, the Commission has held that accumulations of combustible material that have existed for less than two shifts are sufficient to support a finding of unwarrantable failure. Windsor Coal, supra, 21 FMSHRC at 1002; see also Buck Creek, supra, 52 F.3d at 136 (finding unwarrantable failure where cited accumulation must have been present at least since the previous shift); Old Ben, supra, 1 FMSHRC at 1959 (finding unwarrantable failure where accumulation had existed for less than one shift). Accordingly, I find that the duration of the violation for two shifts weighs in favor of finding an unwarrantable failure.

c. Whether Respondent Was Placed on Notice that Greater Efforts

Were Necessary For Compliance with Section 75.400

Repeated, similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. IO Coal, 31 FMSHRC at 1353-55; Amax Coal, supra, 19 FMSHRC at 851; see also Consolidation Coal, supra, 23 FMSHRC at 595. The purpose of evaluating the number of past violations of a particular standard is to determine the degree to which those violations have “engendered in the operator a heightened awareness of a serious . . . problem.” San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007), citing Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994). The Commission has also recognized that “past discussions with MSHA” about a problem “serve to put an operator on heightened scrutiny that it must increase its efforts to comply with the standard.” Id., citing Consolidation Coal, 23 FMSHRC at 595.

i. Order No. 7490584

Respondent argues that it did not have the requisite notice that greater efforts at compliance were necessary because the Galatia Mine is a large mine where numerous 75.400 violations can be expected. R. Br. at 21-22. Respondent asserts that belts routinely spill coal during normal operations, that conditions change quickly, and that it is a constant struggle to identify and clean up accumulations. Id. Respondent further asserts that MSHA did not provide it with any specific, prior notice that the Northwest #3 tail roller area was a trouble spot for accumulations. Therefore, it pleads ignorance that it needed to provide heightened attention to that area of the mine. Id.

I reject Respondent’s arguments. Respondent has an affirmative obligation to inspect and eliminate hazards in all areas of its mine. In addition, the record establishes that Respondent was warned repeatedly through meetings, training sessions, and prior citations/orders, about belt accumulation problems that were similar to those documented in Order No. 7490584. Tr. I at 86-90, 123. Despite MSHA’s repeated warnings, Respondent continued to violate Section 75.400. Furthermore, Commission and D.C. Circuit precedent establish that past violations in a different area of a mine may provide an operator with sufficient awareness of an accumulations problem for unwarrantable failure purposes. See San Juan Coal, supra, 29 FMSHRC at 131; Black Beauty Coal, supra, 703 F.3d at 561. Accordingly, I find that Respondent was placed on notice repeatedly that greater efforts were necessary for compliance with section 75.400. This factor strongly supports an unwarrantable failure finding.

ii. Order No. 7490599

For the same reasons, I find that Respondent was placed on notice that greater efforts were necessary for compliance with Section 75.400 with regard to Order No. 7490599. Accordingly, this factor also favors a finding of unwarrantable failure for Order No. 7490599.

d. Whether the Violation Posed a High Degree of Danger

The high degree of danger posed by a violation supports an unwarrantable failure finding. See BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992) (finding unwarrantable failure where unsaddled beams “presented a danger” to miners entering the area); Quinland Coals, supra, 10 FMSHRC at 709 (finding unwarrantable failure where roof conditions were “highly dangerous”). For purposes of evaluating whether violative conditions pose a high degree of danger, it is often necessary to consider the same facts already considered as part of the gravity evaluation in an S&S analysis. See San Juan Coal, supra, 29 FMSHRC at 125, 132-33 (remand for failure to apply S&S findings to danger factor in unwarrantable failure analysis).

i. Order No. 7490584

As discussed in detail above in my S&S analysis, the accumulations described in Order No. 7490584 posed a risk of serious injury from smoke inhalation to more than ten miners. The Secretary established that, were a fire to ignite, miners evacuating through the primary excapeway would be exposed to a smoke hazard, which would be reasonably likely to result in lost workdays or restricted duty. Furthermore, consistent with my S&S analysis, I have recognized that the Commission finds little probative value in Respondent’s testimony that it utilizes a number of fire suppression and early detection and response systems on its belt line. See Buck Creek, supra, 52 F.3d at 136; Amax Coal, supra, 19 FMSHRC at 850. Accordingly, I conclude that the degree of danger posed by the violation tips in favor of a finding of unwarrantable failure.

ii. Order No. 7490599

I find that the accumulations cited in Order No. 7490599 posed a high degree of danger. The size and location of the accumulations, in addition to the fact that the area was not isolated from active workings, contributed to the likely risk of a serious and possibly fatal injury to miners working inby. Accordingly, I conclude that the violative condition posed a high degree of danger to miners and thus weighs in favor of an unwarrantable failure finding.

e. Respondent’s Knowledge of the Existence of the Violation and Whether the Violation was Obvious

Respondent’s knowledge of a violation and the obviousness of a violation are relevant factors for an unwarrantable failure analysis. The Commission has held that knowledge is established by showing “the failure of an operator to abate a violation [that] he knew or should have known existed.” Emery Mining Corp., 9 FMSHRC 1997, 2002-03 (Dec. 1987); see also, Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 1602 (1975) (“Coal Act Legis. Hist.”). As explained below, I find that these factors support an unwarrantable failure finding for both Orders.

i. Order No. 7490584

Miller credibly testified that “[t]he first thing we noticed [when we came into the area] was the float dust suspended in the area when you walked into the area. It was obvious, the extensive amount of accumulations.” Tr. I at 239. Respondent concedes the obviousness of the violation. R. Br. at 24.

Regarding Respondent’s knowledge of the violation, the pre-shift and on-shift examination records show that the tail area was black and/or dirty for at least three shifts. Reasonable inferences drawn from the language of the pre-shift and on-shift reports establish that Respondent knew that the accumulations existed. Management reviews and countersigns the books, and thus aware of the need to eliminate the accumulations when addressing the black and dirty tail area repeatedly noted by its examining agents. Tr. I at 75-76. Accordingly, I find that Respondent knew or should have known that the accumulations were obvious and that these factors support an unwarrantable failure finding.

ii. Order No. 7490599

I find that the accumulations cited in Order No. 7490599 were also obvious. As with the previous Order, Respondent concedes this point. In fact, Myers testified that the accumulations were “obvious.” Tr. II at 143. “Float dust was suspended in the air as soon as we went around the corner.” R. Ex. 26. I find that even a casual observation would have revealed that there was an energized tail roller grinding through coal at the Flannigan Tailgate.

Furthermore, the Secretary has shown that Respondent knew or should have known of the accumulation problem. Given the scope of the condition cited, it seems difficult to believe that reasonably attentive on-shift examiners would not have reported this condition. Furthermore, Respondent should have been aware of the potential for accumulations given the electrical problems the Pony Belt had been experiencing. Production delay reports show that the accumulations likely were created and grew worse during the previous two shifts because the Pony Belt had been experiencing problems, which caused it to stop and start repeatedly. R. Ex. 21.

Although Respondent should have been alerted to the possibility of accumulations by the Production delay reports, there is little evidence to establish that Respondent had actual knowledge of the condition. Pursuant to MSHA regulations, a miner should have walked the belt during either a pre-shift or on-shift examination. Tr. I at 300. Examiners, however, did not report the condition to mine management and Miller did not issue a citation related to examinations. While the fact that the condition was not reported to, or observed by, mine management mitigates Respondent’s negligence, if Respondent had conducted thorough examinations, the condition should have been documented. Accordingly, I find that these factors tilt in favor of an unwarrantable failure determination.

f. Respondent’s Efforts in Abating the Violation

An operator’s efforts to abate a violation are relevant to an unwarrantable failure determination. Thus, where an operator has been placed on notice of a problem, the level of priority that the operator places on abatement of the problem is relevant. IO Coal, supra, 31 FMSHRC at 1356, citing Enlow Fork Mining, supra, 19 FMSHRC at 17. The focus is on abatement efforts made prior to issuance of the citation or order. Id.

i. Order No. 7490584

Respondent argues that it made efforts to abate belt entry 75.400 violations generally and did not ignore its prior violations. R. Br. at 38-39; Tr. I at 450. Willis testified that Respondent held meetings with MSHA and training sessions with mine examiners to prevent section 75.400 violations from recurring. Tr. I at 450. Miller testified, however, that Respondent could have and should have assigned more rock dusters and assigned more miners to shovel at belt transfer points. Tr. I at 145-46, 374-76. Despite the inspector’s recommendations, I am wary to second guess Respondent’s allocation of its workforce and recognize that there may be more than one way to make genuine efforts to abate recurring violations. The Commission has recognized that special safety meetings may be relevant to whether an operator is attempting to address an ongoing problem. See IO Coal, supra, 31 FMSHRC at 1356. The record establishes that Respondent had a group from MHSA come down from Beckley to train examiners (Tr. I at 123, 449); that Respondent held special safety talks and manager meetings (Tr. I at 448); that changes were made in workforce allocation to increase belt examinations (Tr. at 448-49); that examiners were fired or disciplined for failure to cite hazardous conditions (Tr. I at 455); and that Respondent created PowerPoint training guidelines on July 7, 2007 (Tr. I at 456; R. Ex. 16).

Nevertheless, even though Respondent did attempt to make efforts to eliminate belt entry 75.400 violations generally, this evidence is not dispositive of the specific unwarrantable failure or repeated failure allegations at issue. Where an operator has actual knowledge of a violative condition, the Commission has considered the operator’s abatement efforts of the specific violation in question. See Consolidation Coal, supra, 22 FMSHRC at 330-33; Windsor Coal, supra, 21 FMSHRC at 1005-1007. I conclude that Respondent failed to make adequate efforts to abate the known accumulation violation cited in Order 7490584, prior to its issuance. I am not persuaded by Respondent’s argument that it took specific efforts to abate the violative condition because it was shoveling up the accumulations at the tail roller when it created the stockpile of loose coal behind said roller. As noted above, the stockpile of loose coal was part of inspector Miller’s reason for issuing the Order in the first place. It was also contrary to the mine’s MSHA-approved cleanup plan. R. Ex. 15. Shoveling some of the loose coal into a stockpile did little to eliminate any accumulation or mitigate any hazard contributed to by the violation. The stockpile also presented a propagation expedient in the event of a fire. Tr. I at 232. In any event, extensive accumulations of loose coal and float coal dust were allowed to accumulate under and around the tail roller. In short, Respondent’s inadequate abatement efforts also support an unwarrantable failure finding.

ii. Order No. 7490599

While there can be little doubt that Respondent’s history of violations serves to put the operator on notice that greater efforts were needed to address the condition, I find that Respondent’s voluntary participation in safety meetings and training sessions shows that reasonable efforts were made to address known accumulations. As the Commission has suggested, special safety meetings can indicate that an operator is taking steps to address a recurring problem. Unlike in Order No. 7490584, mine management did not have actual knowledge of the accumulations at the Flannigan Pony belt. Accordingly, Respondent’s abatement efforts weigh against an unwarrantable failure determination for Order No. 7490599.

g. Conclusion Regarding Unwarrantable Failure Factors

In sum, after considering the relevant Commission factors, I conclude that the violations in Order Nos. 7490584 and 7490599 were the result of Respondent’s unwarrantable failure to comply with section 75.400. Respondent’s actions with regard to the conditions in Order No. 7490584 displayed an aggravated inattention to a known recurring problem. The record establishes that the accumulations cited in Order No. 7490584 existed for at least three shifts, and the accumulations cited in Order No. 7490599 existed for about two shifts. For both violations, the accumulations were extensive and relatively obvious. The unmitigated fire hazard made Order No. 7490599 particularly dangerous. Further, the Respondent knew or should have known of the violations, and Respondent failed to take specific, concrete measures to eliminate the known accumulations in Order No. 7490584.

D. Negligence

1. Legal Principles

In assessing penalties for violations of mandatory standards, Section 110(i) of the Mine Act requires that the Commission consider, inter alia, whether the operator was negligent. 30 U.S.C. § 820(i). Thus, each mandatory standard carries with it an accompanying duty of care to avoid violations of the standard. An operator’s failure to meet the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.

By regulation “negligence” is defined as “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. 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.

2. Legal Analysis

After close examination of the record, I affirm the Secretary’s finding of high negligence for Order No. 7490584, but find that negligence should be reduced from “high” to “moderate” for Order No. 7490599. Pursuant to 30 C.F.R. § 100.3(d), a violation is said to be the result of “high negligence” if no mitigating factors exist. Thus, if no mitigating factors exist, the violation is attributable to high negligence. Otherwise, the inspector must find moderate, low, or no negligence. Excel Mining, supra, 497 F. App’x at 79.

Respondent’s utilization of fire detection, fire brigades, suppression systems, and its maintenance of escapeways does not mitigate its negligence. Operators are required to comply with all relevant safety and health standards and regulations and are not entitled to leniency because they have satisfied legal requirements. I find, however, the fact that the condition in Order No. 7490599 had not been reported to mine management by its examiners to be a mitigating factor. Accordingly, I modify the negligence for Order No. 7490599 from “high” to “moderate.”

E. Flagrant

1. Background Concerning Application of the Statutory Flagrant Provision of Section 110(b)(2)

a. Rulemaking and Guidance

On August 17, 2006, following the Aracoma and Sago Mine disasters, Congress enacted the Mine Improvement and New Emergency Response Act of 2006 (“MINER Act”), thus amending the Mine Act to “further the goals set out in the [Act] and to enhance worker safety.” To accomplish this purpose, Congress added a flagrant designation in section 110(b)(2), which sets forth language defining the term “flagrant” and provides for the assessment of enhanced civil penalties. It provides the following:

Violations under this section that are deemed to be flagrant may be assessed a civil penalty of not more than $220,000 [$242,000]. For purposes of the preceding sentence, the term “flagrant” with respect to a violation means a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.

30 U.S.C. § 820(b)(2).

Pursuant to Section 8(b) of the MINER Act, the Secretary proposed a rule, subject to notice and comment, regarding the Criteria and Procedures for Proposed Assessment of Civil Penalties, including those that implemented the flagrant provision. See Pub. L. No. 109-236, § 8, 120 Stat. 493 (2006). On October 26, 2006, following the prescribed notice and comment period, MSHA released a Procedure Instruction Letter (PIL) No. 106-111-04, titled “Procedures for Evaluating Flagrant Violations.” [16] In the PIL, MSHA detailed its interpretation of the statutory and regulatory language for a flagrant violation under the “repeated failure” provision of section 110(b)(2).

The PIL provides the following criteria:

1. Citation or order is evaluated as significant and substantial;

2. Injury or illness is evaluated as at least permanently disabling;

3. Type of action is evaluated as an unwarrantable failure; and

4. At least two prior “unwarrantable failure” violations of the same safety or health standard have been cited within the past 15 months.

On March 22, 2007, MSHA published a final rule implementing the flagrant penalty provision, effective April 23, 2007. 72 Fed. Reg. 13592. Section 100.5(e) merely parrots section 110(b)(2) of the MINER Act and provides no further guidance about how the rule will be applied: It provides:

Violations that are deemed to be flagrant under section 110(b)(2) of the Mine Act may be assessed a civil penalty of not more than $220,000 [$242,000]. For purposes of this section, a flagrant violation means “a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.”

In the supplementary information accompanying and discussing a section-by-section analysis of the final rule, MSHA rebuffed commenters’ concerns that the language of the proposed rule was too vague and that section 110(b)(2) was limited to a violation that an operator has failed to correct under section 110(b)(1). 71 FR 13622-23 (Mar. 22 2007). MSHA further remarked:

Several commenters stated that the proposed language with respect to flagrant violations was too vague. They suggested that flagrant violations be limited to repeated violations of the same standard that were issued under Section 104(d) of the Mine Act, characterized as involving reckless disregard. They further suggested that flagrant violations be limited to violations that have been finally adjudicated. MSHA considered these suggestions in developing this final rule and has determined that it would be most beneficial to miner’s safety and health to retain the proposed language. In addition, the proposed language mirrors the MINER Act. Violations that are deemed to be flagrant would be subject to a penalty of up to $220,000 under the special assessment provision of this final rule.

For a number of reasons, MSHA believes that a flagrant violation under section 110(b)(2) is not limited to a violation that an operator has failed to correct under section 110(b)(1). First, section 110(b)(1) specifically applies to failure to correct a “violation for which a citation has been issued.” In contrast, section 110(b)(2) applies to failure to eliminate a “known violation,” and does not specify that a “known violation” must be a violation which has been cited.

Second, the Senate Report accompanying the MINER Act discusses flagrant violations without any reference to section 110(b) and without any indication that a flagrant violation must be a violation which has been cited. S. Rep. No. 109-365 (Dec. 6, 2006).

Third, section 110(b)(2) applies to failure to eliminate violations “under this section” (emphasis added) that are deemed to be flagrant. Section 110(b)(2) cannot be read as applying only to violations under section 110(b) because section 110(b) is a subsection, not a section. Instead, Section 110(b)(2) must be read as applying to violations under the section in which it appears—i.e., section 110—including section 110(a).

Fourth, section 110(b)(2) is, by virtue of its designation as a sub-subsection separate and distinct from section 110(b)(1), a provision distinct and independent from section 110(b)(1). That designation suggests that section 110(b)(2) is not limited to violations encompassed by section 110(b)(1).

Finally, it would be illogical to limit flagrant violations to violations which have been cited. Plainly, failure to eliminate a violation which is known to the operator but which has not been cited by MSHA—perhaps because MSHA has not conducted an inspection since the violation arose—can be just as dangerous, and just as deserving of an enhanced penalty, as a violation which is known to the operator and which has been cited.

Accordingly, the proposal has been modified. Final § 100.5(e) includes a reference to section 110(b)(2) of the Mine Act.

71 FR 13622-23 (Mar. 22 2007).

b. The Commission’s Wolf Run Decision

The Commission’s only decision to date to address the flagrant provision in section 110(b)(2) is Wolf Run Mining Co., 35 FMSHRC ___ (Mar. 2013). That case involved a repeated flagrant allegation as opposed to a reckless flagrant allegation. In the context of cross motions for summary decision, the judge concluded that the Secretary’s interpretation of a “repeated failure” to include a respondent’s past history of violations, did not comport with the plain language of the Act. Wolf Run Mining Co., 34 FMSHRC 337, 345 (Jan. 2012) (ALJ). By subsequent order, the judge in Wolf Run certified his ruling for interlocutory review. The Commission granted review on the issue of whether the judge correctly construed the “repeated failure” language of section 110(b)(2). Pet. for Discretionary Rev., Wolf Run Mining Co., Docket No. WEVA 2008-1265 (Mar. 2012).

On interlocutory review, the Commission held that that the “plain language of section 110(b)(2) does not support the [j]udge’s ruling that past violative conduct may not be considered in determining whether a cited condition represents a repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety

standard . . . .” Wolf Run, supra, 35 FMSHRC at ___, slip op. at 6. The Commission observed:

Turning first to the statutory language itself, it is difficult to conceive how one determines whether certain conduct represents ‘repeated’ behavior of any sort without considering whether there have been prior instances of similar behavior. One might reasonably argue about the number of prior violations that should be necessary, or how similar those prior violations should be before conduct is appropriately considered a ‘repeated failure’ under 110(b)(2), but an interpretation that precludes consideration of any prior violations runs counter to the natural meaning of the language.

Id., (footnote omitted).[17]

The Commission further reasoned that “[i]t would be inconsistent with the Act’s graduated enforcement scheme to allow consideration of an operator’s past violative conduct for an unwarrantable failure determination but to prohibit consideration of an operator’s past violative conduct in the assessment of a potentially higher flagrant ‘repeated failure’ penalty.” Id. at 7. The Commission found that another factor undermining the “crabbed construction” that a “repeated failure” be circumscribed to instances in which an operator repeatedly failed to eliminate the cited condition at issue, is the fact that such interpretation would render the provision “mere surplusage” and “effectively indistinguishable from the failure to abate provisions of section 104(b) of the Mine Act.” Such a confined interpretation would also be duplicative and sometimes inconsistent with section 110(b)(1), which sets forth a daily maximum penalty of $7,500 for failure to correct a cited violation, with no upper cap like the $242,000 cap on a flagrant violation penalty. The Commission found it difficult to believe that Congress determined that additional enforcement tools were needed in the wake of the Sago disaster, only to provide a sanction already addressed by an existing provision. Id.

Finally, the Commission observed that confining the “repeated failure” language to the “repeated failure to eliminate” the cited condition “might result in the elimination of any meaningful distinction between a ‘reckless’ and a ‘repeated’ flagrant violation, as a repeated failure to make reasonable efforts to eliminate a single known and dangerous violation will often be considered reckless.” Id. at 7-8. While acknowledging that a scenario in which an “inspector comes upon a violative condition which has been repeatedly noted in the operator’s examination books . . . might well be considered flagrant under either the ‘reckless failure’ or ‘repeated failure’ criteria of section 110(b)(2),” the Commission “declined to limit the application of the repeated failure prong to what [it] would hope and expect to be rare occurrences.” Id. at 8, n. 14.

For these reasons, the Commission concluded that the Secretary may permissibly consider an operator’s past violation history in determining that a violation should be assessed as a “repeated failure” flagrant violation within the meaning of section 110(b)(2). The Commission remanded Wolf Run to the judge for a determination of whether the violation alleged in the Order was properly assessed as flagrant. In doing so, the Commission intimated no view on the reasonableness of the interpretation advanced by the Secretary’s appellate counsel. Id. at 8.[18]

On remand, the judge directed the Secretary to submit a statement explaining the Secretary’s interpretation of section 110(b)(2) and whether that interpretation required notice and comment rulemaking. The judge stated:

Presumably the existence of violations cited previous to the subject violation of section 75.400 will form at least part of the basis for the Secretary’s explanation. If so, the Secretary shall identify those prior violations by their citation/order numbers, their date, the standards violated and the section of the Mine Act under which the citations/orders were issued. In addition, the Secretary shall explain the role each such violation played in the Secretary’s determination that the violation of section 75.400 found in Order No. 6605922 was flagrant.

Wolf Run Mining Co., Docket No. WEVA 2008-1265 (Mar. 2013) (ALJ Order on Remand).

In response to the judge’s Order on remand, the Secretary argued that a “repeated failure” is established where the operator either: (1) failed more than once to make reasonable efforts to eliminate the violation alleged to be flagrant; or (2) failed to make reasonable efforts to eliminate at least one previous violation prior to failing to make reasonable efforts to eliminate the violation alleged to be flagrant. See Secretary’s Response to Order on Remand, 3, No. WEVA 2008-1265 (Mar. 2013) (ALJ). This reading is the same one that the Secretary’s appellate counsel presented to the Commission on interlocutory review in Wolf Run. Thus, this appears to be the Secretary’s current interpretation of the repeated failure provision of Section 110(b)(2).

In this case, however, the Secretary never advanced that interpretation. Rather, it relied on the PIL that was in effect at the time the Orders were issued. It is against this backdrop that the undersigned addresses the instant repeated flagrant allegations.

c. Wolf Run Revisited

I find that both violations in Order Nos. 7490584 and 7490599 are flagrant under a narrow interpretation of the “repeated failure” provision where a repeated failure may be established without resort to past violation history (see Wolf Run, supra, 35 FMSHRC at ___, slip op. at 8, n. 14). Of course, past violation history may help establish that the litigated violation is flagrant, but here the Secretary did not provide sufficient evidence of the particulars of that past violation history, including the specifics of the unwarrantable failure orders relied upon, or prior admissions or stipulations of high negligence, to successfully establish prior known violations and use such past violation history in prosecution of the repeated failure flagrant allegations. Nevertheless, since I find that Respondent was given adequate notice of the narrow interpretation of the “repeated failure” provision where a repeated failure may be established without resort to past violation history (see Wolf Run, supra, 35 FMSHRC at ___, slip op. at 8, n. 14), I need not address whether Respondent was denied fair notice under a broader interpretation that relies on past violation history left unexplained in Wolf Run and inconsistently enforced by the Secretary.[19]

As explained above, Wolf Run narrowly held that past violative conduct may be considered in determining whether a cited condition represents a “repeated failure” flagrant violation, but it does not resolve which prior violations are relevant. Nor does Wolf Run pass on the reasonableness of the interpretation advanced by the Secretary’s appellate counsel, which disavowed the Secretary’s previous reliance on the “substantial similarity” of the previous violations to the violation alleged to be flagrant. Wolf Run, supra, 35 FMSHRC at ___, slip op. at 8.

As noted, the Secretary’s Statement in Response to the ALJ’s Order on Remand in Wolf Run adopts appellate counsel’s interpretation. As noted, under that interpretation, where section 110(b)(2)'s other criteria are satisfied, a “repeated failure" is established where the operator either (i) failed more than once to make reasonable efforts to eliminate the violation alleged to be flagrant (i.e., the narrow interpretation that I apply to this case) or (ii) failed to make reasonable efforts to eliminate at least one previous violation prior to failing to make reasonable efforts to eliminate the violation alleged to be flagrant (i.e., a broader interpretation that I decline to address prior to further guidance from the Commission or MSHA rulemaking).” Wolf Run, supra, 35 FMSHRC at ___, slip op. at 8, n. 15 citing n.5. Thus, restated in full, consistent with Commission language in n. 5 (i.e., “where section 110(b)(2)'s other criteria are satisfied”) and consistent with the Secretary's brief and oral argument in Wolf Run, the Secretary’s current litigating position, although not advanced here, is that a “repeated failure” flagrant violation is established where the operator either (i) failed more than once to make reasonable efforts to eliminate a known violation alleged to be flagrant that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury (narrow interpretation); or (ii) failed to make reasonable efforts to eliminate at least one previous known violation that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury, prior to failing to make reasonable efforts to eliminate the known violation alleged to be flagrant (broad interpretation).

In my view, such a reading accounts for both a permissibly narrow interpretation of the “repeated failure” provision where a repeated failure may be established with or without resort to past violation history (see Wolf Run, supra, 35 FMSHRC at ___, slip op. at 8, n. 14), and a permissibly broad interpretation where a repeated failure may be established by reliance on the cited violation and at least one prior known violation that killed, seriously injured, or reasonably could have been expected to kill or serious injure. In both the first and second prong, if the Secretary relies on past violation history, the Secretary must prove that any prior violation relied upon was known, such as through a high negligence stipulation or proof of the knowledge factor in an unwarrantable failure analysis, and that the known violation met the requisite gravity level to be flagrant.

This reading also accounts for minor ambiguity in otherwise fairly plain statutory language. The phrase “repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury” may be subject to more than one reasonable interpretation. The pronoun “that” may be interpreted broadly to refer to a certain type or kind of prior violation, namely a violation that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury. Under this interpretation, and consistent with Wolf Run, a “repeated failure” flagrant violation may be established when an operator fails on more than one occasion to make reasonable efforts to eliminate that type or kind of violation, i.e., a violation that killed, seriously injured, or reasonably could have been expected to kill or serious injure. Left unresolved, however, is whether the same mandatory standard must be violated, or whether any mandatory standard will suffice where the known violation killed, seriously injured, or reasonably could have been expected to kill or serious injure.

On the other hand, the phrase “repeated failure to make reasonable efforts to eliminate a known violation . . . that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury” may also be interpreted narrowly, apart from any consideration of an operator's prior history of violations, such as where a mine operator ignores the same violation on more than one occasion, giving meaning both to the terms “repeated failure” and the singular phrase “a known violation.” See Wolf Run, supra, 35 FMSHRC at ___, slip op. at 8, n. 14. Of course, in such circumstance, as explained above, the operator’s past violation history may be considered in determining whether the singular violation is flagrant. As the Commission suggested in Wolf Run, either interpretation is permissible, but an interpretation that flatly rejects consideration of any prior violation history is not, particularly in light of the purpose and context of the statutory language.

2. Respondent's Due Process, Fair Notice, and Arbitrary Enforcement

Arguments

a. Respondent’s Arguments

Respondent requests that the two flagrant designations be removed because the statute and regulation are void for vagueness and overly broad, both on their face and as applied. The Respondent argues that the statute and regulation fail to provide fair notice of what conditions or practices should be considered flagrant, and encourage arbitrary enforcement, which Respondent says actually occurred here. See generally R. Br. at 42-50.

Respondent emphasizes that basic principles of due process require sufficient notice and dictate that “an enactment is void for vagueness if its prohibitions are not clearly defined . . . . [W]e insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” FMC Corp., 8 FMSHRC 631, 640 (Apr. 1986) (ALJ) (citing Grayned v. City of Rockford, 408 U.S. 102 (1972) (emphasis added); see also Kolender v. Lawson, 461 U.S. 352, 357 (1983). Respondent notes that the statute does not provide any definitions for several key terms and phrases, such as “reckless,” “repeated failure,” “to make reasonable efforts to eliminate,” “a known violation,” “substantially and proximately caused,” “reasonably could have been expected to cause” and “serious bodily injury.” R. Br. at 42-43. Respondent further details how MSHA's proposed rule and final regulation merely restate the statutory language, and how MSHA deliberately chose to avoid formal notice and comment rulemaking regarding its interpretation of the flagrant provision, as set forth in the PIL, by omitting its interpretation from the proposed rules and waiting to release the PIL three days after the comment period had closed. Thus, Respondent argues that Congress and MSHA left operators with no guidance on what the various terms and phrases in the flagrant statute and regulation mean, leaving them to guess about what actions, conditions, or practices could result in a flagrant designation. R. Br. at 44.

The Secretary argues that the Commission’s decision in Wolf Run has provided such guidance. P. Rep. Br. to Order Lifting Stay, at 4. As stated above, the Commission found “the language of section 110(b)(2) [to be] plain” as it relates to whether an operator’s past history of violations may be considered in determining whether a violation resulted from a repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard. Wolf Run, 35 FMSHRC ___, slip op. at 6, n. 7. As a result, the Secretary argues that I should reject Respondent’s argument that Section 110(b)(2) failed to provide notice regarding the requirements of Section 110(b)(2). P. Rep. Br. to Order Lifting Stay at 4.

In addition, Respondent argues that the Secretary’s “repeated failure” flagrant interpretations are invalid and unenforceable, and should receive no deference under a Chevron II analysis because there are indicia of inadequate consideration that support a finding that MSHA’s interpretation does not reflect its fair and considered judgment. Id. at 2-6 (citations omitted). Respondent reiterates that MSHA's rulemaking merely parroted the statute and did not provide any criteria for “repeated failure” flagrant violations. Respondent further emphasizes that the Secretary disavowed the PIL in this case and in Wolf Run as a “nonbinding” “general policy statement.” Consequently, the Respondent notes that the Secretary has no formal rule or policy interpretation regarding the “repeated failure” criteria here, and must rely on altered and vague testimony and ever-evolving litigation positions. Id. at 2-3.

Respondent emphasizes that Miller did not rely upon the PIL, did not believe the conditions warranted a flagrant designation when he observed them, and only designated them flagrant when later told to do so by District 8 superiors. Id. at 3. Furthermore, the Respondent emphasizes that the Secretary's current litigating position regarding the “repeated failure” criteria differs substantially from the PIL, the criteria announced in Wolf Run, and the criteria espoused by Miller at trial, thus amounting to no more than a “convenient litigating position” that makes deference inappropriate. Id. at 4, citing Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012).

Respondent also highlights a host of questions that arise from the Secretary's reliance (without rulemaking) on past violation history, including why twenty-seven alleged “substantially similar” section 75.400 violations – all section 104(a) citations with lost workdays designations and twenty-one with moderate negligence designations - triggered application of the flagrant provision. Id. at 4-5. Respondent notes that examination of the twenty-seven citations by month shows that belt entry violations of Section 75.400 declined dramatically in the months leading up to September 2007 when the instant Orders were issued. Id. at 5.

Furthermore, Respondent argues that the Secretary's new flagrant arguments are inconsistent with prior detailed rulemaking for section 100.3(c), entitled History of Previous Violations, which was promulgated at the same time as the flagrant rule in section 100.5 (e). Respondent notes that the Preamble to the Final Rule, as it relates to the repeat violation provision in section 100.3(c), establishes that such provision is aimed at repeat citations for the same safety and health hazards at the same operation within a specified period of time in an effort to prevent reoccurrence and thereby provide systematic improvement to miner safety and health. Id. at 5, citing 72 Fed. Reg. at 13,608. Respondent argues that the Secretary’s new litigation position regarding “repeated failure” flagrant violations appears to say the same thing, thus rendering the repeat violations regulation in section 100.3(c) superfluous.

In short, Respondent argues that the undersigned should give no legal effect to the PIL, no deference to the Secretary's “repeated failure” litigation position, find inadequate guidance to determine the appropriate criteria for a “repeated failure” flagrant violation without additional rulemaking, and remove the flagrant designations. Id. at 6, n. 3, citing Drummond Co., 14 FMSHRC 661, 683-87, 692 (May 1992) (finding that the application of penalty criteria in non-binding policy letters affects operator’s rights, and invalidating new standards imposing higher penalties for excessive history because they were substantive and there had been no opportunity for public comment).

Respondent’s Response Brief to Order Lifting Stay also expands on earlier arguments that the flagrant statute and its associated regulation are unconstitutionally vague and overly broad on their face and as applied. Respondent cites the Supreme Court’s recent decision in FCC v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317 (2012) to bolster its argument that the Due Process Clause of the Fifth Amendment requires that the flagrant provision and identical MSHA’s regulation be deemed void for vagueness because they do not give fair notice of the conduct forbidden or required. R. Br. to Order Lifting Stay at 6. Respondent notes that the Fox Court emphasized that “the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, the regulated party should know what is required of them so they may act accordingly; second, decision and guidance are necessary so that those enforcing the law not act in an arbitrary and discriminatory way.” 132 S.Ct. at 2317, citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

With regard to the first concern of what is required under “repeated failure” criteria to avoid a flagrant designation, Respondent relies on Wolf Run’s acknowledgment that “[o]ne might reasonably argue about the number of prior violations that should be necessary or how similar those prior violation should be before conduct is appropriately considered a “repeated failure” under 110(b)(2). R. Br. to Order Lifting Stay at 6, citing Wolf Run, 2013 WL 1249150, at *3. Respondent argues that this statement coupled with the silence of the statute and existing regulation on such criteria support a finding that Respondent was provided with inadequate notice of the “repeated failure” criteria, and when and how it would be applied, so it could avoid a flagrant designation. Id. at 7.

With regard to the second Fox concern, Respondent claims that Wolf Run strengthens its argument that the “repeated failure” prong of the flagrant provision and regulation encourages and allows arbitrary enforcement. Respondent notes that the issuing inspector in Wolf Run, unlike Miller here, “followed the criteria in the PIL” when he recommended that the 75.400 accumulation violation be designated flagrant in November 2007. Id. at 7, citing 2013 WL 1249150, at *2. Thus, Respondent argues that during the same time frame, MSHA was interpreting and enforcing the flagrant provision and regulation in at least two different manners in two different districts. Thus, Respondent argues that the unconstitutionally vague criteria encouraged, and actually allowed, arbitrary enforcement based on evolving and ever-changing criteria. Id. at 8 and n. 5.

Finally, Respondent’s Response Brief to Order Lifting Stay argues that the stipulated facts in Wolf Run, the other reported ALJ decisions regarding flagrant violations, and the expired PIL, all support an interpretation of “serious bodily injury” to mean a violation that reasonably could be expected to cause a permanently disabling or fatal injury, but not a lost workdays injury. Id. at 8, citing Wolf Run, 34 FMSHRC at 34 (ALJ) (referring to stipulation of “permanently disabling injuries”); Stillhouse Mining, 34 FMSHRC 778, 815, 821, 826, 835 (Mar. 2011) (ALJ) (finding “fatal” and “permanently disabling injuries”); PIL, R. Ex. 27 (“Injury or illness. . . at least Permanently Disabling”). Respondent concludes that this is “perhaps the simplest most compelling reason why the flagrant designations should be removed from Orders 7490584 and 7490599. Id.

b. Respondent’s Arguments, While Superficially Appealing, Lack Merit Under the Narrow Holding in This Case

Addressing the Respondent's arguments, the Supreme Court has long held that the Commission has the authority to address constitutional challenges to the Act. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994); see also Kenny Richardson, 3 FMSHRC 8, 18-21 (Jan. 1981), aff'd, 689 F.2d 632 (6^th Cir. 1982) (Commission has authority to decide constitutional issues). The undersigned must assume that Congress legislated in light of constitutional limitations. See Emerald Coal Res., Inc., 29 FMSHRC 956, 971 (Dec. 2007), citing Rust v. Sullivan, 500 U.S. 173, 191 (1991). The Supreme Court has concluded that there is a “strong presumptive validity that attaches to an act of Congress” and statutes are not automatically invalidated as vague simply because it is difficult to determine whether certain offenses fall within the statutory language. Id., citing United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32 (1963). Consequently Respondent carries a heavy burden to show that the flagrant provision in the MINER Act is unconstitutionally vague. Id., citing Langston v. Johnson, 478 F.2d 915, 919 (D.C. Cir. 1973).

Initially, I find that MSHA gave Respondent actual notice of its interpretation of what is required under the flagrant provisions of the statute when MSHA articulated such interpretation in the PIL on October 26, 2006, well before the Secretary undertook the current enforcement action in 2009. I find that due process is satisfied when an agency gives actual notice of its interpretation prior to enforcement, irrespective of the validity of that interpretation. See, e.g., Consolidation Coal Co., 18 FMSHRC 1903, 1907 (Nov. 1996) (holding that actual notice was provided by MSHA prior to issuance of citation); see also General Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995) (reasoning that agency’s pre-enforcement warning to bring about compliance with its interpretation will provide adequate notice). The PIL functioned as an expression of the agency’s official position regarding the interpretation of “flagrant” before it filed the instant case. Therefore, the PIL provided actual notice to Respondent of MSHA’s enforcement position, irrespective of the validity of that position.[20]

In addition, I find that plain statutory language provided actual notice to Respondent under a narrow interpretation of the “repeated failure” provision, i.e., that a repeated failure may be established without resort to past violation history (see Wolf Run, supra, 35 FMSHRC at ___, slip op. at 8, n. 14). In fact, Respondent concedes as much when it argues that MSHA's interpretation of “repeated failure” in the PIL is wrong because the phrase “a known violation” indicates that the statute is focused upon a repeated failure to eliminate a singular, known violation. R. Br. at 45.

Although the Commission in Wolf Run held that past violative conduct may be considered in determining whether a cited condition represents a “repeated failure” flagrant violation, footnote 14 of Wolf Run also makes clear that the narrow interpretation that I apply in this matter is also a permissible interpretation under the statute. Accordingly, I conclude that Respondent was given fair notice of proscribed conduct in the circumstances of this case, and there was no arbitrary enforcement of the “repeated failure” flagrant provision. Since Respondent was given adequate notice of this narrow interpretation under the plain language of the statute, I need not address whether Respondent was denied fair notice under a broader interpretation that relies on some nebulous, and yet to be defined, past violation history that is consistent with the express statutory language and underlying Congressional intent.

3. No More Than Skidmore Deference Is Due Here

I decline to give the Secretary’s interpretation full Chevron or Seminal Rock deference in the circumstances of this case. As a threshold matter, it is remarkable that seven years after Congress established a flagrant violation under section 110(b)(2), MSHA has failed to undertake substantive notice-and-comment rulemaking on the substantive meaning of the flagrant provision. Rather, the Secretary’s regulation merely parrots the language of the statute. Making matters worse, the Secretary has advanced constantly evolving interpretations of section 110(b)(2) before the Commission and its judges. See Wolf Run, supra, 35 FMSHRC at ___, slip op. at 3-4, n. 5.

In the present case, like in Wolf Run, the Secretary’s interpretation has changed several times. The Secretary initially relied on MSHA’s PIL criteria at the hearing to establish a “repeated failure” flagrant violation. Under these criteria, the citation or order must be designated as S&S and an unwarrantable failure, with severity of injury designated as at least permanently disabling, and there must be at least two prior unwarrantable failure violations of the same safety or health standard cited within the past fifteen months. That enforcement guideline appears to be cut from whole cloth and superimposes requirements not present in the language of the statute, without the benefit of notice-and-comment rulemaking. The PIL, while adequate for notice purposes and as a screening device for MSHA, is too broad a brush to be used for definitive deference in the repeated flagrant analysis. While it may be established through adequate proof or stipulation that past unwarrantable violations were “known” violations for the purposes of determining flagrant, knowledge is but one part of the unwarrantable failure balancing test and is not a prerequisite for such a finding. As noted, a known violation may be established by a prior admission or stipulation regarding negligence. Further, the PIL criteria does not seem to capture whether the operator made reasonable efforts to eliminate a prior known violation.

Perhaps recognizing such problems, the Secretary, as in Wolf Run, broadens the proposed interpretation of a “repeated failure” flagrant violation on post-hearing brief to include previous non-S&S and non-unwarrantable failure violations, and seemingly narrows the interpretation to require that the previous violations be “substantially similar.” P. Br. at 36-37 (citing OSHRC precedent as instructive); cf., Wolf Run, supra, 35 FMSHRC at ___, slip op. at 3-4, n. 5. I am not persuaded by this non sequitur. Dropping the S&S and/or unwarrantable failure prerequisites in any past violation history relied upon to establish a “repeated failure” flagrant appears to be inconsistent with the statutory language that a known violation substantially and proximately caused, or reasonably could be expected to cause, death or serious bodily injury. In such circumstances, even assuming any “substantial similarity” requirement to be appropriately grafted onto the statutory language, any previous violation(s) relied on to establish a “repeated failure” flagrant cannot possibly be “substantially similar” to the alleged repeated flagrant being litigated, which must have the requisite knowledge and gravity requirements.

Much like in Wolf Run, the Secretary further argues on brief that the violations in Order Nos. 7490584 and 7490599 should be found “repeated failure” flagrant violations because of eleven previous unwarrantable failure orders as well as the history of 361 citations/orders for section 75.400 violations in the previous 24-month period. P. Br. at 34; P. Br. to Order Lifting Stay at 3. Cf., Wolf Run, supra, 35 FMSHRC at ___, slip op. at 3-4, n. 5.[21] As noted, however, only one actual unwarrantable failure order is in the record and the judge’s Order Approving Settlement establishes that the unwarrantable failure designation was removed. R. Ex. 39. In addition, the Secretary argues that Respondent received twenty-seven citations/orders for 75.400 violations that were “substantially similar” to the alleged “repeated failure” flagrant violations at issue because they involved accumulations of coal, float coal dust, coal fines, and other combustible materials that had been allowed to develop on or around conveyor belts and belt structures. See P. Br. at 37; P. Br. to Order Lifting Stay at 3. Cf. Wolf Run, supra, 35 FMSHRC at ___, slip op. at 3-4, n. 5. Of these twenty-seven citations/orders, the Secretary notes that nineteen were issued for S&S violations, including five that were issued as unwarrantable failures in the two months before September 18, 2007. Accordingly, the Secretary argues that Respondent’s history of violations is replete with examples of “prior instances of similar behavior” demonstrating that Respondent has repeatedly failed to eliminate accumulations of combustible materials in and around belts and belt structures in the mine” and this is strong evidence in support of the “repeated failure” flagrant designations. P. Br. to Order Lifting Stay at 3.

Even assuming that the Secretary establishes such history, that does not mean that the Secretary necessarily has established all the requisite elements of a “repeated failure” flagrant violation, particularly if certain aspects of a prior settled or open unwarrantable failure violation such as “a known violation that substantially and proximately caused, or reasonably could be expected to cause, death or serious bodily injury” have not been proved or admitted for purposes of the Act, and are merely assumed by the Secretary. While the Commission has left open which prior violations are relevant to the assessment of a “repeated failure” violation, including the number of prior violations that should be necessary, and how similar those prior violations should be, reliance on such violation history raises a host of proof problems which cannot be met “by simply introducing a computer printout showing that there have been multiple violations of a cited safety standard at the mine. Such statistics do not establish that the mine operator has repeatedly failed to make reasonable efforts to eliminate a known violation.” Bowie Res., supra, 33 FMSHRC at 1699.[22] Rather, the Secretary must establish all the statutory elements for each “repeated failure” relied upon to establish a flagrant violation. This may prove difficult, despite admission clause language, when prior citations are settled without proving up all requisite elements.

Given MSHA’s and/or the Secretary’s constantly evolving interpretations of a “repeated failure” flagrant violation as set forth in this case, I must first consider Chevron’s applicability to such interpretations. Initially, I note that “[a]gency inconsistency is not a basis for declining to analyze an agency’s interpretation under the Chevron framework.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). Rather, unexplained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under Administrative Procedure Act (APA), 5 U.S.C.A. § 706(2)(A). Accordingly, if an agency adequately explains its reasons for reversal of policy, the change is not invalid because the whole point of Chevron is to leave discretion provided by the ambiguities of a statute with the implementing agency. Id.

Accordingly, I look to Chevron’s two-step analysis to determine whether the PIL, 30 C.F.R. section 100.5(e), and/or the Secretary’s appellate arguments before the Commission in Wolf Run are permissible constructions of the statute in this case. Chevron, 467 U.S. at 842-43. The first step in the Chevron analysis is “whether Congress has directly spoken to the precise question at issue is,” because if it has, that is the end of the inquiry. I agree with Respondent’s argument that the flagrant statute is silent as to the “repeated failure” criteria. I also agree that while Wolf Run found that the plain language of the “repeated failure” flagrant provision allowed consideration of prior violation history, the statute is silent and ambiguous as to how that should be done. R. Br. to Order Lifting Stay at 1-2. Accordingly, I turn to Chevron step 2.

Under Chevron step 2, silence or ambiguity in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion, and filling these gaps involves difficult policy choices that agencies are better equipped to make than courts. 467 U.S. at 865–866. If a statute is silent or ambiguous, and if the implementing agency’s construction is reasonable and not arbitrary, capricious, or manifestly contrary to the statute, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation. Id., at 843–844, n. 11.

Nevertheless, as Respondent points out on brief, Chevron deference only applies when: (1) “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law” and (2) “the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). Otherwise, the interpretation is “entitled to respect” only to the extent it has the “power to persuade.” Gonzales v. Oregon, 546 U.S. 243, 256 (2006), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

Whether an agency’s reasonable statutory interpretation satisfies Mead’s second requirement depends on the form and context of that interpretation, which may provide reason to suspect that the agency’s interpretation is not reflective of the agency’s fair and considered judgment on the matter in question. Christopher v. SmithKline Beecham Corp., 132 S.Ct. 2156, 2166 (2012); see also Auer v. Robbins, 519 U.S. 452, 462 (1997). Accordingly, deference is inappropriate where there are indicia of inadequate consideration, including conflicts between the agency’s current and previous interpretations, signs that the agency’s interpretation amounts to no more than a convenient litigating position, or an appearance that the interpretation is no more than a post hoc rationalization advanced by an agency seeking to defend past agency action against attack. Christopher, supra, at 132 S.Ct. at 2166.

Considerable indicia of inadequate consideration are present in this case. As emphasized, the Secretary’s current litigating position regarding the “repeated failure” criteria differs substantially from the PIL relied on in this case, from the criteria pronounced in Wolf Run, and from the criteria relied on by inspector Miller at trial. As Wolf Run recognized, the Secretary has been anything but consistent regarding an interpretation of the “repeated failure” criteria. The Secretary’s most recent position as advanced by appellate counsel in Wolf Run amounts to little more than a “convenient litigating position,” making deference inappropriate. Christopher, supra, 132 S.Ct. at 2166.

In these circumstances, I conclude that the Secretary’s varying interpretations of the “repeated failure” flagrant provision in this case merit no deference under Chevron. I note that “[a]n agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446, n. 30 (1987). Shifting interpretations signal that the agency is not using its expertise and cannot make up its mind on an issue. See, e.g., Rosales-Garcia v. Holland, 322 F.3d 386, 403, n.22 (6th Cir. 2003), cert. denied sub nom. Snyder v. Rosales-Garcia, 539 U.S. 941 (2003). The Secretary’s inconsistent interpretations of section 110(b)(2), as well as its failure to undertake notice-and-comment rulemaking, signal that the agency is not using its expertise and cannot make up its mind on how to interpret a “repeated failure” flagrant violation. Accordingly, I refuse to grant the Secretary’s interpretation of section 110(b)(2) Chevron deference in this case.

I also find that that Chevron deference does not apply to the Secretary’s interpretation of the statute based on the PIL. An agency’s statutory interpretation only qualifies for Chevron deference if the interpretation is promulgated during the exercise of statutory authority to prescribe norms which carry the force of law, i.e., adjudication, notice-and-comment rulemaking, or some comparable law-making method. United States v. Mead Corp., 533 U.S. 218 (2001). In Mead, supra, customs ruling letters were legally binding only on the parties who requested them, not the public. The Court held that Congress did not intend to delegate to the agency the authority to act with force of law, and the agency did not act with, force of law. Mead, supra, 533 U.S. at 233.

Here Congress delegated authority to act with force of law, but MSHA did not do so. Furthermore, the PIL interpreting the Act does not carry force of law because it does not establish any binding norms on anyone. In Chao v. Occupational Safety & Health Review Comm’n, 540 F.3d 519 (6th Cir. 2008), the Sixth Circuit held that Chevron deference “is not required where the interpretation is offered via an informal medium -- such as an opinion letter, agency manual, policy statement, or enforcement guideline -- that lacks the force of law.” Id. at 527, citing Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000); see also North Fork Coal Corp. v. FMSHRC, 691 F.3d 735, 740-41 (6th Cir. 2012). Accordingly, I find that the enforcement guidance in the MSHA PIL has failed to carry out any congressionally delegated authority to act with force of law.

I also decline to grant Seminole Rock deference to the Secretary’s interpretation of the regulatory language in section 100.5(e). See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). The regulation merely parrots the statutory language of section 110(b)(2). An agency deserves no deference for an interpretation of its own regulation when the regulation merely parrots the language of the statute, without implementing it. Gonzales, supra, 546 U.S. at 257 (2006). In such cases, the agency is not using its expertise to interpret the law. It is merely copying or paraphrasing the statutory language. Id. at 258. Furthermore, the Secretary cannot argue that the PIL should receive Seminole Rock deference. The PIL is not an interpretation of section 100.5(e) because the PIL was released prior to the promulgation of 100.5(e).

Accordingly, I conclude that the Secretary’s various interpretations are entitled to no more than Skidmore deference to the extent they have the “power to persuade” based on thoroughness of consideration, validity of reasoning, consistency with earlier and later pronouncements, and all other relevant factors.” Skidmore, supra, 323 U.S. at 140. In this case, I am not persuaded by the Secretary’s shifting and inconsistent reasoning, including the addition of requirements not present in the statutory language.

4. The Elements of a “Repeated Failure” Flagrant Violation

Pursuant to the express statutory language, to establish a repeated flagrant violation, the Secretary must prove the following elements: (1) a repeated failure (2) to make reasonable efforts to eliminate; (3) a known violation of a mandatory health or safety standard; (4) that substantially and proximately caused or reasonably could have been expected to cause; (5) death or serious injury. See Wolf Run, March 22, 2013 Order on Remand in Docket No. WEVA 2008-1265, citing Wolf Run, supra, 34 FMSHRC at 345; Stillhouse Mining, supra, 33 FMSHRC at 778.

a. A Repeated Failure

“Repeated” means something that is said or done on more than one occasion. See Oxford Dictionary of Current English 764 (3d ed. 2001); see also Webster’s New World College Dictionary 1215 (4th ed. 2007) (“repeated” is defined as something that is “said, done, or presented again”); Random House Webster’s College Dictionary 1102 (2nd ed. 1997) (“done or said again and again”); Webster’s New World College Dictionary, Third College Edition 1138 (3rd ed. 1988) (“said made, done, or happening again”); The American Heritage Dictionary, Second College Edition 1048 (2nd ed. 1982) (“said, done, or occurring again and again”).

“Failure” means a “lack of success” or “the omission of expected or required action.” The New Oxford American Dictionary, supra, at 604. In the legal context, failure means “1. Deficiency; lack; want. 2. An omission of an expected action, occurrence, or performance.” Black’s Law Dictionary, supra, at 631.

“Repeated” modifies “failure” and therefore a “repeated failure” means an omission of an expected action on more than one occasion.

b. To Make Reasonable Efforts to Eliminate

The next statutory phrase concerns the expected action that an operator must make. The action expected to be undertaken is “to make reasonable efforts to eliminate . . . .”

“To make” means to undertake.

“Reasonable” describes efforts and is understood by laypersons and lawyers as “having sound judgment; fair and sensible” or “as much is appropriate or fair [under the circumstances]; moderate.” Black’s Law Dictionary, supra, at 1293; The New Oxford American Dictionary, supra, at 1411.[23]

“Effort[s]” means a “vigorous or determined attempt[s].” The New Oxford American Dictionary, supra, at 540.

“Eliminate” means to “completely remove or get rid of (something).” Id. at 548; Stillhouse, 33 FMSHRC 778, 804 (Mar. 2011).

c. A Known Violation of a Mandatory Health or Safety Standard

The next statutory phrase describes what conditions an operator must make reasonable efforts to eliminate. The answer is that an operator must make reasonable efforts to eliminate a known violation of a mandatory health or safety standard. The plain meaning of “known” accords with the commonly understood meaning of “knowingly” under the Mine Act. See Stillhouse, supra, 33 FMSHRC at 806-07; Freeman United Coal Mining Co., 108 F.3d 358, 363-64 (D.C. Cir. 1997); Ernest Matney, 34 FMSHRC 777, 783 (Apr. 2012). To “know” means to “be aware of through observation, inquiry, or information.” The New Oxford American Dictionary, supra, at 937.

In the legal context, “knowledge” may be understood as “actual” or “constructive.” Black’s Law Dictionary, supra, at 888. Actual knowledge may be “express,” which is “[d]irect and clear knowledge,” or it may be “implied,” which is “[k]nowledge of such information as would lead a reasonable person to inquire further.” Id; Stillhouse, supra, 33 FMSHRC at 806.

The Commission has interpreted “knowingly” under section 110(c) of the Mine Act in such a manner. The test for determining liability under section 110(c) is whether the corporate agent knew or had reason to know of a violative condition. Cougar Coal Co., 25 FMSHRC 513, 517 (Sept. 2003) (citing Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983)). Under this test, “[a] knowing violation occurs when an individual ‘in a position to protect employee safety and health fails to act on the basis of information that gives him knowledge or reason to know of the existence of a violative condition.’” Cougar Coal, supra, 25 FMSHRC at 517 (quoting Kenny Richardson, supra, 3 FMSHRC at 16).

The meaning of “known” also embraces constructive knowledge of a violation, which is “[k]nowledge that one using reasonable care or diligence should have.” Black’s Law Dictionary, supra, at 888. Constructive knowledge derives solely from the duty to have acquired that knowledge. See, e.g., Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 364 (D.C. Cir. 1997); Jim Walter Res., Inc., 19 FMSHRC 1761, 1767–69 (Nov. 1997).

The text of the statute does not require “a known violation” to have already been cited by MSHA in order to establish a “repeated failure” flagrant violation. Wolf Run, supra, 35 FMSHRC at ___, slip op. at 7; Stillhouse, supra, 33 FMSHRC at 804; Bowie Resources, supra, 33 FMSHRC at 1697. The language and structure of section 110 make clear that an operator’s failure to correct an already-cited condition is not a prerequisite to the establishment of a flagrant violation. See Stillhouse, supra, 33 FMSHRC at 805; supra, 33 FMSHRC at 1697. The only adjective modifying “violation” is “known,” not cited. Cf., section 104(b), 30 U.S.C. § 814(b), providing for a failure to abate citation where “a violation described in a citation issued pursuant to subsection (a)” is a prerequisite.

In my view, the meaning of the phrase “of a mandatory health or safety standard” is straightforward. A mandatory health or safety standard is any substantive regulatory standard promulgated pursuant to Title I of the Mine Act. The Act does not say the same standard. As noted above, however, the Secretary has advanced interpretations that the same mandatory standard must be violated, engendering arguable ambiguity and conflating a “repeated failure” involving the same standard with a “repeated failure” involving any mandatory standard where the known violation killed, seriously injured, or reasonably could have been expected to kill or serious injure. I note that in proposing a penalty the Secretary already looks to the Respondent’s history of previous violations based on both the total number of violations and the number of repeat violations of the same citable provision of a standard in the preceding 15-month period. See 30 C.F.R § 100.3(c). In the advent of the deadly Sago and Aracoma tragedies, it would appear to the undersigned that in the flagrant provision, Congress intended the broader application inherent in any mandatory standard, not the same one.

I need not resolve this issue here. The parties do not dispute that 30 C.F.R. 75.400 is a mandatory safety standard as that term is used in Section 110(b)(2). See, e.g., McElroy Coal Co., 30 FMSHRC 237, 238 (Mar. 2008) (ALJ) (identifying 30 C.F.R. 75.400 as a “mandatory safety standard”).

d. That Substantially and Proximately Caused, or Reasonably Could Have Been Expected to Cause Death or Serious Bodily Injury

The next statutory phrase addresses what kind of known violation of a mandatory health or safety standard an operator has repeatedly failed to make reasonable efforts to eliminate. The answer is the kind or type of violation “that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.” Thus, section 110(b)(2) of the Mine Act requires the Secretary to prove that the violation substantially and proximately caused death, or reasonably could have been expected to cause, death or serious bodily injury. As explained above, a “repeated failure” flagrant violation turns on whether an operator, on more than one occasion, failed to make reasonable efforts to eliminate a known violation of a mandatory health and safety standard. . . .” Accordingly, when one adds the statutory phrase “that substantially and proximately caused, or reasonably could have been expected to cause death or serious bodily injury,” the type of known violation is further defined to encompass one that killed, seriously injured or reasonably could be expected to kill or seriously injure.

For purposes of analyzing “substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury,” it is helpful to analogize, in part, to the Mathies test for significant and “substantial.” Consistent with the plain language of the statute, where death or serious injury actually occurs as a result of a known violation of a mandatory standard, substantial and proximate cause must be established.

To “cause” is “[t]o bring about or effect.” Black’s Law Dictionary, supra, at 235; see The New Oxford American Dictionary, supra, at 272 (defining cause as to “make (something) happen”).

A substantial cause means something that is “considerable in importance, value, degree, amount or extent.” The American Heritage Dictionary 1727 (4^th ed. 2009).

Proximate cause means “1. A cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor. 2. A cause that directly produces an event and without which the event would not have occurred.” Black’s Law Dictionary, Eighth Edition, 2004, at 234; see also Restatement (Third) of Torts § 29 (2010) (“An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.”); United States v. Monzel, 641 F.3d 528, 535 (D.C. Cir. 2011) quoting William L. Prosser, The Law of Torts § 41, at 236 (4th ed. 1971) (defining proximate cause as the “reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.”).

If the Secretary is unable to show that a repeated failure to make reasonable efforts to eliminate a known violation substantially and proximately caused death or serious injury, the Secretary may show, in the alternative, that an operator repeatedly failed to make reasonable efforts to eliminate a known violation that reasonably could have been expected to cause . . . death or serious bodily injury.” 30 U.S.C. § 820(b)(2) (emphasis added). As noted, based on the plain meaning of the statute’s terms, an operator’s conduct “reasonably could have been expected to cause death or serious bodily injury” when, based on all of the facts and circumstances surrounding the operator’s repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard, the operator’s conduct reasonably was likely to bring about death or serious bodily injury. Stillhouse, supra, 33 FMSHRC at 807-08.[24]

A final issue is what constitutes “death or serious bodily injury.” “Serious” is defined as “grave in quality or manner.” The American Heritage Dictionary 1590 (4th ed. 2009). “Bodily” means “of relating to the body” or “physical.” Id. at 205. “Injury” is defined as “damage or harm done to a person or thing.” Id. at 902. Thus, in the context of the present 75.400 violation, where no death or serious injury actually occurred, the Secretary must establish that Respondent’s repeated failure to make reasonable efforts to eliminate a known violation could reasonably be expected to result in death or serious bodily injury.

5. Application of the Repeated Failure Provision of Section 110(b)(2)

a. Positions of the Parties

In arguing that the elements for “repeated failure” flagrant violations are met, the Secretary relies on many of the same facts underlying its unwarrantable failure determinations. The Secretary argues that the Respondent knew about the accumulations that led to the issuance of Order Nos. 7490584 and 7490599 and therefore they were known violations. P. Br. at 39.

Specifically, with regard to Order No. 749058, the Secretary contends that the conditions cited were identified in the pre-shift and on-shift examination books for four shifts prior to the Miller’s inspection. R. Exs. 22-23. The Secretary further emphasizes that Respondent’s only attempt to address or clean up the accumulations at the Northwest #3 conveyor belt was to stockpile the existing accumulations behind the tail roller guard, contrary to Respondent’s own “Clean-Up Program,” which explicitly states, “[l]oose accumulations of coal along the belt lines will be shoveled onto the belt.” R. Ex. 15; see also Tr. I at 486. The Secretary claims that these accumulations were known to the Respondent for several shifts and Respondent took only minimal steps to clean them up, and no apparent steps to eliminate the further development of accumulations in this area of the mine. Thus, in essence, the Secretary argues that Respondent repeatedly failed to make reasonable efforts to eliminate a known violation that could reasonably be expected to cause death or serious bodily injury. P. Br. at 39.

With regard to Order 7490599, the Secretary also argues that Respondent either knew or should have known about the accumulations cited. The Secretary notes that the area cited by Miller was three or four crosscuts away from the active section. Also, the Secretary contends that the crew working that section had been on shift for approximately two and one-half hours at the time that Miller issued the Order, and they would have been required to pass the Flannigan Tailgate on their way to the working section. Miller testified that Myers was upset that the section foreman had not discovered and addressed the conditions cited in the Order. Id. at 105, 114-15. Thus, the Secretary argues that Myers’s contemporaneous declaration to Miller that he was upset that the foreman had not found the condition demonstrates that Respondent knew or should have known about the accumulations cited in the Order. P. Br. at 66.

Respondent argues that the Secretary has not proven that Respondent engaged in a “repeated failure to make reasonable efforts to [eliminate] a known violation” with regards to the conditions set forth in Order Nos. 7490584 and 7490599. Initially, with regard to Order No. 7490584, Respondent contends that there is no evidence that the Northwest #3 belt tail roller was turning in accumulations and suspending float coal dust in a way that was seen or “known” by an examiner or “known” by Respondent or its management personnel. R. Br. 58-60. Respondent claims that the conditions could have come into being between the last examination and the time of issuance of the Order, due to defects in the tail roller and belt system. Id. Furthermore, Respondent claims that clean-up work was in progress at the cited tail roller. Respondent notes that there was a shovel sitting under the tail roller with a black, fresh pile of loose coal located a few feet behind (inby) the shovel and tail roller. Additionally, the 150 feet of loose coal and float coal dust outby the tail roller had been placed in the pre-shift exam records immediately preceding issuance of the Order in the Remarks column. Accordingly, Respondent claims that the examiner did not consider such condition to be hazardous. Respondent also claims that it had practices and procedures in place to identify hazardous conditions and clean them up, and that these practices were being followed. Id. Respondent concludes that in light of these facts, the undersigned should find that Respondent did not engage in a repeated failure to make reasonable efforts to eliminate a known violation with regard to the conditions cited in Order No. 7490584.

With regard to Order No. 7490599, Respondent claims that there is no evidence that the cited conditions at the Flannigan Tailgate belt tail were “known” by management. R. Br. at 59. Respondent argues that all or a large part of the accumulations could have come into existence on the prior shift, during a time when the Pony Belt was having electrical problems and troubleshooting was occurring. Respondent argues that there is no evidence of any failure, let alone a repeated failure, to correct the alleged conditions. Accordingly, Respondent argues that it did not engage in a repeated failure to make reasonable efforts to correct a known violation with regard to the conditions set forth in Order No. 7490599. Id.

Finally, Respondent argues that the violations could not reasonably have been expected to cause death or serious bodily injury. Rather, with respect to both Orders, Respondent claims that the reasonably expected injury was smoke inhalation that might have

led to lost workdays. Id. at 60.

6. Legal Analysis - A Narrow Interpretation

Under a narrow interpretation of section 110(b)(2) as described in Wolf Run at n. 14, the Secretary established that Respondent’s accumulations violations constitute a “repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that . . . could be reasonably expected to cause death of serious bodily injury.” As noted, in the absence of further guidance from the Commission, long overdue rulemaking from MSHA, or a consistent interpretation or litigating position by the Secretary that has not been advanced by appellate counsel in another case, I decline to address a broader interpretation here or the significance of past violation history.

a. Repeated Failure to Make Reasonable Efforts to Eliminate a Known

Violation of a Mandatory Safety Standard

i. Order No. 7490584

Respondent’s violation as cited in Order No. 7490584 constitutes a “repeated failure” flagrant violation. Respondent, on more than one occasion, i.e., repeatedly for three shifts, failed to make reasonable efforts to eliminate a known accumulation violation that was recorded in its examination books, and that known violation was of mandatory safety standard 75.400.

As noted above, I have found that the accumulations at the tail roller existed for at least three shifts, according to the pre-shift and on-shift reports. R. Ex. 23. Respondent had a reasonable opportunity before and during each shift to eliminate the accumulations, but it failed to do so. Thus, for three shifts, Respondent repeatedly failed to eliminate the accumulations.

During Miller’s inspection, the accumulations under and around the energized tail roller of the Northwest Number 3 conveyor belt measured approximately six to twenty-nine inches. No reasonable effort had been made to eliminate them. Rather, Respondent had stockpiled extensive accumulations from this area behind the tail roller guard. Respondent’s creation of the stockpile of loose coal behind the tail roller does not constitute a reasonable effort to eliminate the violation. Rather, the stockpiled accumulations provided additional fuel in the reasonably likely event of an ignition in the area during normal, continued mining operations in which the energized tail roller was grinding in the accumulations and suspending float coal dust into the atmosphere. See Tr. I at 230; P. Ex. 2. No reasonable effort had been made to eliminate these accumulations either. In short, Respondent allowed substantial quantities of loose coal and float dust to accumulate and grind in the tail roller, while stockpiled and other accumulations were allowed to persist nearby.

The violation that Respondent repeatedly failed to make reasonable efforts to eliminate was a known violation of mandatory safety standard 75.400. The accumulations were documented on the pre-and on-shift books for three shifts. Mine managers review and countersign the books, and therefore were aware of the violative condition euphemized in the books. Tr. I at 75-76. Although Respondent claims that the pre-shift and on-shift examination records only show that the tail area was “dirty” and “black,” I have found herein that the words “dirty” and “black” are reasonably read in proper context to refer to an accumulation violation. Accordingly, I have found that Respondent knew and certainly should have known that the violation existed for three shifts.

ii. Order No. 7490584

For essentially the same reasons, Respondent’s violation in Order No. 7490584 also constitutes a “repeated failure” flagrant violation. Respondent, on more than one occasion, i.e., repeatedly for at least two shifts, failed to make reasonable efforts to eliminate an accumulation violation that it should have known about.

The accumulations described in Order No. 7490599 measured more than a foot deep at the tail roller and loose coal and float dust extended for a considerable distance. P. Ex. 3. They were “distinct black in color,” or “jet black.” Tr. I at 108-09; P. Ex. 4. Based on his experience, Miller concluded it would take a “train wreck,” for accumulations of this type and color to develop. Tr. I at 108. Further, based on the color and condition of the accumulations and the amount of accumulations observed, Miller concluded that the condition had existed for several shifts. Tr. I at 314-15. I have credited this testimony and found that the accumulations existed for at least two shifts.

Respondent had a reasonable opportunity before and during each shift to eliminate the accumulations, but it failed to do so. Thus, for two shifts, Respondent repeatedly failed to eliminate the violation.

The violation that Respondent repeatedly failed to make reasonable efforts to eliminate for two shifts was a violation of mandatory safety standard 75.400, which Respondent should have known about. Respondent concedes that the accumulations were likely created and worsened during the previous two shifts when the Pony Belt had been experiencing problems, which caused it to stop and start repeatedly, resulting in the accumulations. As the problems with the Pony Belt were well documented in P&D reports, Respondent was alerted to the fact that potential accumulations at this location would need additional attention. In fact, foreman Raney testified that the repeated starting and stopping of the belt was known to cause such problems. Tr. II at 67-68. Accordingly, I conclude that Respondent knew or should have known that the violation existed for at least two shifts.

b. That Reasonably Could Have Been Expected to Cause Death or

Serious Bodily Injury

i. Order No. 7490584

Respondent’s accumulation violation was a known violation that reasonably could have been expected to cause death or serious bodily injury. As explained in the S&S analysis above, the known accumulation violation contributed to a discrete safety hazard, i.e., a mine fire, which, if left unabated during the course of continued mining operations, reasonably could have been expected to cause severe and serious injuries due to smoke inhalation. Accordingly, I affirm the “repeated failure” flagrant designation for Order No. 7490584.

ii. Order No. 7490599

Respondent’s accumulation violation was a known violation that reasonably could have been expected to cause death or serious bodily injury. As explained in the S&S analysis above, the known accumulation violation contributed to a discrete safety hazard posed by the smoke, that reasonably could have been expected to cause serious or fatal injuries in the form of smoke inhalation, carbon monoxide poisoning, burns, entrapment or death, if left unabated during continued mining operations. Accordingly, I affirm the “repeated failure” flagrant designation for Order No. 7490599.

VI. Civil Penalty Principles

The Commission outlined the parameters of its responsibility for assessing civil penalties in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:

The principles governing the Commission’s authority to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission the “authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act requires that, “[i]n assessing civil monetary penalties, the Commission [ALJ] 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.

22 FMSHRC at 600, citing 30 U.S.C. § 820(i).

In keeping with this statutory requirement, the Commission has held that “findings of fact on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty assessment for a particular violation 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). In exercising this discretion, the Commission has reiterated that a judge is not bound by the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008).

A. Explanation for “Repeated Failure” Flagrant Penalties Assessed

As Order Nos. 7490584 and 7490599 were issued under § 104(d)(1), § 110(a)(3)(A) of the Act requires that the minimum penalty shall be at least $2,000. Furthermore, section 110(b)(2) of the Act requires that the amount assessed for flagrant violations shall be no more than $242,000. Here, the Secretary’s Petition has proposed assessment of penalties of $179,300 for Order No. 7490584 and $164,700 for Order No. 7490599, thus satisfying the statutory minimum penalties for unwarrantable failures, and not exceeding the statutory maximum penalties flagrant violations.

Respondent’s history of previous violations is based on both the total number of violations and the number of repeat violations of the same provision of a standard in the preceding fifteen month period. 30 C.F.R § 100.3(c). The record evidence establishes that in the fifteen months preceding Order Nos. 7490584 and 7490599, Respondent was cited for violations involving section 75.400 about 160 times.

Regarding Order No. 7490584, I have found that Respondent was highly negligent by repeatedly failing to make reasonable efforts to eliminate the known accumulations violation that was reasonably likely to cause serious injuries resulting in lost workdays or restricted duty from smoke inhalation. Respondent’s repeated inaction over the course of three shifts, particularly in light of Respondent’s accumulation violation history, demonstrates a serious and continuing lack of care to manage a serious accumulation problem and make reasonable efforts to eliminate the known violation.

Regarding Order No. 7490599, I have found that Respondent was moderately negligent by repeatedly failing to make reasonable efforts to eliminate the accumulations violation that it knew or should have known about and that was reasonably likely to cause serious or fatal injuries. The fact that the condition was not reported to management on pre-shift and on-shift reports constitutes a mitigating factor in terms of Respondent’s negligence. Nevertheless, Respondent should have known about the violation through monitoring of Production and Delay reports and knowledge of repeated Pony Belt breakdowns. Respondent’s repeated inaction over the course of more than two shifts, particularly in light of Respondent’s accumulation violation history, demonstrates a serious and continuing lack of care to manage a serious accumulation problem and make reasonable efforts to eliminate the violation that it knew or should have known about.

Respondent demonstrated good-faith by achieving rapid compliance after issuance of both Orders. P. Ex. 2; P. Ex. 3. Further, Respondent stipulates that payment of the proposed civil penalties would not affect its ability to remain in business. Given the large size of Respondent’s business and the penalty criteria discussed above, I assess civil penalties of $101,475 for Order No. 7490584 and $77,737 for Order No. 7490599, thereby resulting a total civil penalty of $179,212 for the “repeated failure” flagrant violations found herein. This penalty assessment is based the statutory criteria of section 110(i) and the deterrent purposes of the Act. Cf. Sellersburg, supra, 5 FMSHRC at 294-95.

B. Rejection of Excessive Fines Argument under the Eighth Amendment

Respondent contends that the “repeated failure” flagrant penalties in this case constitute excessive fines that violate the Eighth Amendment of the Constitution. Specifically, Respondent argues that the combined flagrant penalty assessment is grossly disproportionate to the two violations. I disagree.

The instant case is distinguishable from cases in which the Supreme Court found penalties to be disproportionate. In United States v. Bajakajian, 524 U.S. 321, (1998), for example, the Court considered several factors in deciding that it was grossly disproportionate for the government to take away $357,144 from an individual who failed to report this money to customs while leaving the country. Id. at 337-40. The factors considered included the culpability of the actor and the harm caused by the violation. Id.; see also Cooper Industries, Inc., v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001). The Court reasoned that the culpability of the actor was low, despite failing to report the currency, because the money was not used to further illegal activity, such as tax-evasion, which was the statute’s primary focus. Bajakajian, supra, 524 U.S. at 337-40. Furthermore, the actor’s failure to report the currency did not cause any substantial harm. In this regard, had the crime gone undetected, the government would only have lost information that $357,144 had left the country. No fraud was committed, nor was any tangible damage inflicted on anyone. Id.

Caselaw in the corporate context is more analogous. In Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909), the Court refused to hold that $1,623,500 (not adjusted for inflation) an excessive fine against a corporation for violating state anti-trust laws. The Court declined to interfere unless the fine was so grossly excessive as to amount to deprivation of property without due process of law. In upholding the fine, the Court noted that the business was extensive and profitable during the period of violation, and that the corporation had over $40,000,000 of assets and has declared dividends amounting to several hundred percent. Id. at 111-12. Thus, the fine was not excessive.

As in Waters-Pierce Oil Co., Respondent is a large company with numerous assets. Furthermore, unlike in Bajakajian, Respondent’s culpability is high because its repeated failure to eliminate known violations that were flagrant unwarrantable failures posed serious injury and high danger to miners. Accumulation violations, if left unabated near an ignition source during normal continuous mining operations, are likely to contribute to explosion or fire hazards, which are reasonably likely to result in death or serious bodily injury to miners. To deter repeated failure to make reasonable efforts to eliminate such known violations, Congress enacted the MINER Act amendments to impose substantial flagrant penalties on bad actors. Respondent’s violation history, despite the Secretary’s failure to pinpoint its specifics, demonstrates that it is a bad actor with respect to repeated and recurring accumulation violations. A very large number of S&S and unwarrantable failure citations for section 75.400 violations did not deter Respondent’s repeated failures to eliminate such violations. Elevation to flagrant penalties under the narrow interpretation set forth herein is warranted and appropriate on this record.

Accordingly, I conclude that a total $179,212 flagrant penalty is constitutional under the Eighth Amendment and consistent with the deterrent purpose of the Act.

VII. ORDER

For the reasons set forth above, Order Nos. 7490584 and 7490599 are AFFIRMED as significant and substantial, unwarrantable failure, and repeated flagrant violations under 30 C.F.R. § 75.400. Further, Order No. 7490599 is MODIFIED to reduce the level of negligence from “high” to “moderate.” Order No. 7490584 is MODIFIED to reduce the injury or illness that could reasonably be expected to occur from “fatal” to “lost workdays or restricted duty.” Further, Order Nos. 7490584 and 7490599 are MODIFIED to reduce the likelihood of injury or illness from “highly likely” to “reasonably likely.” Within forty days of the date of this decision, Respondent, American Coal Company is ORDERED TO PAY a total civil penalty of $179,212 for the “repeated failure” flagrant violations found herein.

Accordingly, I reduce the proposed penalty for Order No. 7490584 from $179,300 to $101,475 and Order No. 7490599 from $164,700 to $77,737, resulting in a total civil penalty assessment of $179,212 for the “repeated failure” flagrant violations found herein.

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution: (Certified Mail)

Travis W. Gosselin, U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn Street, Room 844, Chicago, IL 60604

Jason W. Hardin, Mark E. Kittrell, Fabian & Clendenin, 215 S. State St., Ste. 1200, Salt Lake City, UT 84111-2323

[1] In resolving conflicts in testimony, I have taken into consideration the demeanor of the witnesses, their interests in this matter, the inherent probability of their testimony in light of other events, corroboration or lack of corroboration for testimony given, and consistency or lack thereof within the testimony of witnesses and between the testimony of witnesses.

[2] In 2010, the Galatia Mine was split into two separate mines. The old Mine ID No. 11-02752, assigned by MSHA, was retained by the Galatia Mine, which was renamed the “New Era Mine.” American Coal Co., 33 FMSHRC 2511, 2512, n. 2 (Oct. 2011) (ALJ). The mine that was split off, dubbed the Millennium Portal (now known as the New Future Mine), was issued a separate Mine ID No. 11-03232. Id.

[3] All subsequent dates occurred in 2007, unless otherwise indicated.

[4] As discussed in greater depth below, the Secretary relies on a violation history printout that does not completely represent the final determination of the citation and orders contained within. P. Ex. at 1. Some of the citations, and all of the unwarrantable failure orders, have been either contested and have not yet become final orders of the Commission or have been altered as the result of litigation or settlement. Respondent, however, provided the settlement for twenty citations in which the Secretary agreed to remove the S&S designation for nine citations, lower the gravity and/or negligence for twelve citations, and remove the unwarrantable failure designation for one citation. R. Ex. 39.

[5] Miller has thirty-one years of experience in the coal mine industry, including twenty years as an MSHA inspector with responsibilities at the Galatia Mine. Tr. I at 45, 47, 50-51. As lead inspector at the mine, he is responsible for tracking all citations and areas that need inspection, and he conducts meetings with managers and other inspectors to discuss and prevent recurrence of the same types of violations. Tr. I at 51-52.

[6] Foreman Raney testified that the heat sensors are triggered when the flashpoint temperature for coal is met. Tr. II at 56-57.

[7] Miller could not identify, in the Secretary's exhibits, which three prior 104(d)(2) orders formed the basis for either of the flagrant designations at issue, nor could he identify the repeated flagrant criteria or guidance relied on by District 8 supervisors, who never saw the conditions themselves. R. Br. at 48, citing Tr. 323-24, 330-33, 336, and 341-42.

[8] Even if Respondent did challenge the violations, I would find them. A reasonably prudent person familiar with the mining industry and the protective purpose of section 75.400 would have recognized the accumulations of float coal dust and loose coal at the Northwest #3 tail and Flannigan Tailgate areas.

[9] Neither the judge nor the Commission mentioned the existence of any defect in the belt. It is reasonable to infer that they would have mentioned such a relevant factor in the S&S analysis had it existed.

[10] Applying existing Commission and Seventh Circuit precedent in Buck Creek, I decline to give probative value to Respondent's testimony that it utilizes a number of early fire detection and response systems on its belt line, including methane and carbon monoxide detectors, water sprays, stoppings, and ventilation control devices. As set forth above in Buck Creek, the Seventh Circuit affirmed the judge's determination that a coal accumulation violation on a conveyor belt was S&S, despite the presence of redundant fire detection and prevention measures. 52 F.3d at 136. Thereafter, applying Buck Creek, the Commission has determined that little weight should be given to safety measures such as fire detection and suppression systems when determining whether an accumulation violation is S&S. See Amax Coal, supra, 18 FMSHRC at 1359, n.8; Amax Coal, supra, 19 FMSHRC at 850; Big Ridge, 35 FMSHRC ___, No. LAKE 2009-377, 13 (June 2013); Cumberland Coal, 33 FMSHRC 2357, 2369-70 (Oct. 2011), aff’d Cumberland Coal Res. v. FMSHRC, No. 11-1464, 2013 WL 2450523 (D.C. Cir. 2013).

[11] Raney testified that the heat sensors are triggered at the flashpoint temperature. Tr. II at 56-57.

[12] McGilton's testimony that he had never seen or heard about a belt fire resulting from a roller without defects does not preclude an S&S finding.  Tr. II at 202-03.  As the Commission stated in Amax Coal, supra, 19 FMSHRC at 849, the absence of an injury-producing event when a cited practice or condition has occurred is not dispositive of whether a violation is S&S.  See also Elk Run Coal, supra, 27 FMSHRC at 906; Blue Bayou Sand & Gravel, supra, 18 FMSHRC at 857.

[13] While Miller did cite the tragic events at Aracoma as a basis for the “fatal” determination, the factual circumstances that lead to the deaths of two miners at Aracoma differed substantially from the conditions at the Galatia Mine. Accordingly, I decline to draw much inference by analogy to such tragic events. Further, the Commission has traditionally downplayed the importance of historical data in determining the S&S status of a violation. Amax Coal, supra, 19 FMSHRC at 849; Elk Run Coal, supra, 27 FMSHRC at 906; Blue Bayou Sand & Gravel, supra, 18 FMSHRC at 857. If, as the Commission has ruled, the absence of an injury-producing event is not dispositive of whether an S&S violation occurred, I see no reason why the existence of a single, tragic event with markedly different facts should be given much weight.

[14] Upon review of past citations, it is not immediately clear why the conditions alleged in Order No. 7490584 should be afforded a higher level of gravity. These citations were issued by multiple MSHA inspectors and some of the citations seem to contain allegations equally or more serious in nature. See, e.g., P. Ex. 17 (accumulations measuring between six and twelve inches in depth at both the head and tail roller with float coal dust extending 2000 feet was alleged to cause a hazard that was reasonably likely to result in lost workdays or restricted duty). While the citation history is not dispositive of the gravity analysis, the unexplained inconsistency undermines Miller’s credibility on this issue and calls into question Miller’s testimony that he was trained to cite all such conditions as “fatal.”

[15] Recently, the Commission addressed an analogous issue in Manalapan Mining, Inc., 2013 WL 754106 *6-7 (Feb. 2013). The issue was whether the judge erred in using the phrase “wet” and “muddy” in several pre-shift and on-shift reports to support the conclusion that accumulations existed for a lengthy period of time. Id. The Commission remanded the case because the judge inconsistently interpreted “wet” and “muddy” to refer to accumulations in one area of the mine, and not in another, and implicitly adopted the judge's interpretation of “wet” and “muddy” as evidence of impermissible accumulations. Id. at 6-7. Here, by analogy, I rely on similar terms, such as “dirty” and “black,” in the pre-shift and on-shift reports to support my findings that Respondent had knowledge of, or certainly should have known about, the duration of the accumulations.

[16] These procedures became effective on October 26, 2006, expired on May 31, 2008, and were later re-issued as PIL No. I08-1II-02, which expired on March 31, 2010.

[17] In a personal footnote, Commissioner Nakamura did not agree that the textual language “repeated failure to make reasonable efforts to eliminate a known violation” was susceptible to only one interpretation, since two Commission judges, one in Conshor Mining and one Wolf Run, concluded that the term “repeated failure” refers to “current repeated conduct evidenced by a failure to eliminate the hazard posed by the discrete violation alleged to be flagrant, rather than by a past history of violations. But examining the “repeated failure” language in light of its purpose and context, rather than in isolation, Commissioner Nakamura concluded that the “repeated failure” language is susceptible to only interpretation. Id. at n.9, citing Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 1330-31 (2011).

[18] Under that interpretation, where section 110(b)(2)’s other criteria are satisfied, a “‘repeated failure’ is established where the operator either (i) failed more than once to make reasonable efforts to eliminate the violation alleged to be flagrant; or (ii) failed to make reasonable efforts to eliminate at least one previous violation prior to failing to make reasonable efforts to eliminate the violation alleged to be flagrant.” Wolf Run, supra, 35 FMSHRC at ___, slip op. at 8, n. 15 citing n.5.

[19] The Secretary has failed to proffer sufficient evidence concerning the nature of the past violations of section 75.400 to support the repeated flagrant designation for either violation. The Secretary must show a history of violations that were known to the operator and that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury. As in Bowie Resources, the Secretary has submitted a printout in support of the repeated flagrant finding listing all the alleged violations of section 75.400 that were cited between October 11, 2005 and September 23, 2007. See Bowie Resources, LLC., 33 FMSHRC 1685, 1699 (July, 2011) (ALJ). The printout only provides the most basic of facts for each alleged violation (i.e., the citation number, the standard alleged to have been violated, the S&S and unwarrantable designations, the proposed penalty, payment status, etc.), but does not list the alleged negligence of the operator nor the violation narrative setting forth the practices or conditions for which the citation was issued. P. Ex. 1.

The Secretary did, however, provide copies of twenty-seven citations previously issued to Respondent alleging violations of section 75.400, which the Secretary claims are substantially similar. P. Ex. 5-31; P. Br. at 33-34. Only one of the “substantially similar” violations received into evidence was alleged to be an unwarrantable failure, and six of those twenty-seven citations were alleged to have been the result of “high” negligence. These citations are unreliable indicators of past violative flagrant conduct as they only represent the allegations made by the Secretary, and not the final order of the Commission. See R. Ex. 39 (Order Approving Partial Settlement in which the aforementioned unwarrantable designation was removed). While the Commission has ruled that “non-admission” clauses are impermissible insofar as they prevent consideration of alleged violations in proceedings under the Mine Act, the parties may negotiate paper changes to the citations that would alter the inspector’s initial evaluation and thus affect their importance in the repeated flagrant analysis. See Amax Lead Co. of Mo., 4 FMSHRC 975, 978 (June 1, 1982). I decline to strip Respondent of its due process afforded under the Act by blindly accepting the Secretary’s invitation to consider unproven allegations as history of repeated flagrant violations when those allegations have either not yet become final orders of the Commission, or were subject to unspecified modifications as part of an approved settlement.

[20] As explained below, the PIL and the Secretary's varying and evolving interpretations of the “repeated failure” provision thereafter, deserve no more than Skidmore deference to the extent they have the power to persuade.

[21] The previous 24-month period departs from the former PIL criteria of at least two prior unwarrantable failures of the same standard within the past fifteen months.

[22] The judge in Bowie Resources, declined to rule on whether an increasing history of S&S and unwarrantable failure violations of a single standard would be sufficient to establish the “repeated failure” element. Instead, he determined that the Secretary had not established that the violation in the case reasonably could have been expected to cause death or serious injury, the fourth prong of the Stillhouse analysis. Because he determined that injury was unlikely, the judge vacated the Secretary's flagrant determination. Id. at 1700.

[23] Relevant tort law evaluates the reasonableness of an actor's conduct according to the standard of care followed by a reasonably prudent person. Stillhouse, supra, 33 FMSHRC at 804; Restatement (Third) of Torts, § 3, comment a. For civil penalty purposes, the Commission has used the reasonably prudent person standard to determine whether, in light of the facts and circumstances surrounding a mine operator's conduct, a reasonably prudent person would have recognized a legal duty to take certain actions to comply with a mandatory health and safety standard. Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 656 (Aug. 2008) (quoting Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982)); Stillhouse, supra, 33 FMSHRC at 804.

[24] The statutory language arguably is ambiguous regarding whether the Secretary must prove that the violation reasonably could have been expected to “substantially and proximately” cause death or serious bodily injury, if it chooses to make this alternative showing of a potential injury. Although the language is clear that the Secretary must prove that the violation “substantially and proximately caused” death or serious bodily injury in the scenario of an actual injury, it is unclear whether this language carries over to the language that applies in the “potential injury” scenario. In the instant case, however, the issue is immaterial because, as set forth below, the known accumulation violations contributed to a discrete safety hazard, i.e., a mine fire, which, if left unabated during the course of continued mining operations, reasonably could have been expected to cause serious injuries, regardless of how one interprets the statutory language of section 110(b)(2). In other words, under the definition of proximate cause set forth above, there is a reasonable connection between the repeated failure to eliminate known accumulations and the reasonably likely risk that such failures would likely result in the risk of serious injury as a result of a mine fire. Accordingly, I need not definitively resolve any such statutory ambiguity.