FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

February 1, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman, and Nakamura, Commissioner

            This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). In part, Administrative Law Judge Jerold Feldman concluded that two section 104(d) orders issued by the U.S. Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Manalapan Mining Company, Inc. (“Manalapan”) for combustible coal accumulations in violation of 30 C.F.R. § 75.400 were not the result of the operator’s unwarrantable failure to comply with mandatory health or safety standards. 32 FMSHRC 690, 701, 703, 705 (June 2010) (ALJ). The Commission granted the Secretary of Labor’s petition for discretionary review challenging the judge’s decision. For the reasons that follow, we vacate the judge’s decision and remand for further consideration consistent with our decision.

I.

Factual and Procedural Background

            From 2000 until 2008, Manalapan operated an underground coal mine, Mine No. 10, in Pathfork, Kentucky. 32 FMSHRC at 692; Tr. 16. The mine had one production day shift that began at 6:00 a.m. and ended at 4:00 p.m. 32 FMSHRC at 691-92. There was no second shift. Id. at 692. The third shift was a maintenance shift that operated from 9:00 p.m. until 5:00 a.m. Id. The coal seam height underground varied from approximately 5½ to 3½ feet. Id. Coal was extracted from the working face by a continuous miner. Tr. 54-55. The material extracted from the working face consisted of approximately 70% rock and clay and 30% coal. 32 FMSHRC at 692. After extraction, the coal along with the extraneous material was loaded onto a series of conveyor belts designed to transport it to the surface. Id.

            In October 2007, at the time of the inspection at issue in this case, the mine had four belt lines going from the face to the entry that were approximately 2,300 feet in total length. Id. The conditions in the mine were constantly wet because of percolation of water through old works, the mine floor and ribs, and dust control at the face. Id.; Tr. 226-30. Despite the presence of water pumps, water was never completely removed, and the mine floor remained muddy at all times. 32 FMSHRC at 692. The extracted material was transferred from the No. 4 belt at the face to the No. 3 and No. 2 belts and ultimately to the No. 1 belt nearest the surface. Id.

            On October 7, 2007, at approximately 9:00 a.m., MSHA Inspector Daniel Lewis commenced an inspection of the mine. Id.; Tr. 50. Joe Miniard, the mine superintendent, accompanied Lewis on the inspection. Tr. 50-51. Initially, Lewis reviewed the preshift and onshift examination books. 32 FMSHRC at 692. Lewis observed notations under the column entitled “Hazardous,” entered from August 30 through October 2, 2007, that, as a general matter, reflected wet and muddy conditions on a daily basis along the four belts. Id.; M. Ex. 7. The recordation began on that date because an MSHA inspector had previously advised Miniard that he could no longer record the conditions as “none observed.” Tr. 343. The books noted “working on” and “shoveling” as actions taken to correct the conditions. 32 FMSHRC at 692.

            The mine had been producing coal for approximately two to three hours prior to the beginning of the inspection. Id. at 693. Inspector Lewis began his inspection by traveling with Miniard to the working face. Id. After completing his inspection of the face, Lewis traveled outby the conveyor belt entry to inspect the belts. Id. Lewis inspected the belt lines, beginning with Belt No. 4, then traveling outby to Belt No. 3, Belt No. 2, and Belt No. 1. Tr. 100, 331-39. The inspection occurred prior to Miniard’s onshift examination. 32 FMSHRC at 693. At that time, four men were assigned to work on the beltline, concentrating on the conveyor head drives where water and mud had accumulated. Id.

            Regarding the conditions at issue on appeal, on Belt No. 3, which was 400 feet long, id. at 699, Lewis noted one to nine-inch deep accumulations, and that at least 20 of the rollers were in the accumulations. Id.; Gov’t. Ex. 2. He noted that the belt was beginning to become more damp than Belt No. 4. Id. at 700. In his testimony, Lewis explained that the belt became wetter as it progressed outby towards the head drive. Id.; Tr. 87-88. Lewis initially denied that the area along Belt No. 3 was wet and slippery, but ultimately conceded that there was enough water to make it difficult to walk. 32 FMSHRC at 700. Lewis testified that the accumulations were “combustible enough to cite.” Id. Around Belt No. 3, there was a buggy charger cable that had been run over. Tr. 335-36. The cable was not properly hung and was caught in a man door. Tr. 109.

            Belt No. 2 was 500 feet long. 32 FMSHRC at 702. In the order, Lewis noted that the accumulations along Belt No. 2 were one to 12 inches deep and ten bottom rollers were rubbing on the accumulations. Id.; Gov’t. Ex. 3; Tr. 91. Inspector Lewis testified that the conditions along Belt No. 2 were so wet and muddy that they constituted a “borderline situation” in terms of establishing a violation. 32 FMSHRC at 702. Superintendent Miniard testified that there was no coal spillage along the belt. Id. at 703. Photos of the area depicted a “wet, soupy mixture of mud and water.” Id.; M. Ex. 9.

            Upon completing his examination of the belts, Lewis traveled to the surface whereupon he telephoned his supervisor Jim Langley. 32 FMSHRC at 693. After consulting with Langley, Lewis issued Citation No. 7511467 (Belt No. 4) as well as Order Nos. 7511472 (Belt No. 3), 7511478 (Belt No. 2), and 7511479 (Belt No. 1) for violations of the mandatory safety standard in section 75.400. Id. Lewis designated the cited violations as “significant and substantial” and attributable to Manalapan’s unwarrantable failure to comply. Id. The Secretary proposed $60,000 penalties for each violation. Id. at 691. Upon the issuance of the citation and orders, the belts were shut down, and abatement took 18 employees seven to eight hours. Id. at 698; Tr. 365.

            The judge determined that the accumulations along Belt No. 3 were an S&S violation. 32 FMSHRC at 700. He relied on the testimony indicating that although the conditions were wetter than on the previous belt, there were still areas of combustible material that could dry out and create a risk of explosion and serious or fatal injuries. Id. However, the judge declined to find that the violation resulted from an unwarrantable failure. Id. at 701. Considering the preshift and onshift examination books to determine the duration of the accumulations as several shifts, the judge found that the operator did not have sufficient notice of the condition because the condition was recorded as “wet and muddy” instead of “accumulations of coal.” Id. He reasoned that even though the rollers were turning in the accumulations, there was not a high degree of danger because of the muddy consistency of the material. Id. The judge acknowledged the operator’s 27 previous section 75.400 violations but found that, because 40% of them were non-S&S and because not all of them involved conveyor belts, they did not support an unwarrantable failure finding. Id.

            The judge determined that the violation along Belt No. 2 was not S&S because the testimony indicated that the accumulation was soupy and more liquid than muddy, and thus the hazard posed by the condition was unlikely to cause serious injury. Id. at 702-03. The judge also declined to find that the violation was an unwarrantable failure, relying on the inspector’s testimony that the violation was “borderline,” that it was unlikely to cause a fire, and that the evidence reflected no more than a moderate degree of negligence. Id. at 703.

            As to his determination on conditions at the two remaining belts (which are not the subject of this appeal), the judge vacated the order alleging a violation of section 75.400 on Belt No. l. Id. at 704-05. However, he found that the section 75.400 violation along Belt No. 4 was an S&S violation caused by the operator’s unwarrantable failure. Id. at 697-98.

            Consequently, the judge affirmed Citation No. 7511467 (Belt No. 4), modified Order Nos. 7511472 (Belt No. 3) and 7511478 (Belt No. 2), and vacated Order No. 7511479 (Belt No. 1). Id. He assessed penalties of $20,000 for Citation No. 7511467 (Belt No. 4), $12,000 for Order No. 7511472 (Belt No. 3), and $4,000 for Order No. 7511478 (Belt No. 2). Id. at 699, 702, 704.

II.

Disposition

            The Secretary contends that the judge erred in concluding that the coal accumulation violations on Belt Nos. 3 and 2 were not the result of the operator’s unwarrantable failure. She requests that the Commission vacate the judge’s unwarrantable failure determinations and remand the case to him to apply the correct legal test and consider all the evidence.

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

            Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, including (1) the extent of the violative condition, (2) the length of time that the violative condition existed, (3) whether the violation posed a high degree of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7) whether the operator had been placed on notice that greater efforts were necessary for compliance. See IO Coal Co., 31 FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999). These seven factors need to be viewed in the context of the factual circumstances of a particular case, and some factors may be irrelevant to a particular factual scenario. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Nevertheless, all of the relevant facts and circumstances of each case must be examined to determine if an operator’s conduct is aggravated, or whether mitigating circumstances exist. Id.; IO Coal, 31 FMSHRC at 1351.

            At issue here is whether the judge erred in his unwarrantable failure analysis of Manalapan’s conduct in violating section 75.400 on the No. 3 and 2 belts. In evaluating the unwarrantable failure designations for these violations, the judge committed a number of errors. Accordingly, we vacate these unwarrantable failure determinations and remand this case to the judge. Because the evidence in this case involving the two violations is interrelated and similar with regard to many of the unwarrantable failure factors, we address both violations together in discussing each factor.

            A.        Degree of Danger of the Violations

            With regard to the degree of danger, the judge relied on the testimony of both the inspector and the operator’s witnesses as to the generally wet and muddy conditions to support the conclusion that the circumstances were mitigating and thus Manalapan’s conduct was not sufficiently aggravated to constitute an unwarrantable failure. 32 FMSHRC at 701-03. Addressing the unwarrantable failure designation of the No. 3 belt violation, the judge reasoned that the evidence was “insufficient to demonstrate that this muddy mixture posed the requisite high degree of danger to justify unwarrantable failure findings in this case.” Id. at 701. Because he determined that the violation on Belt No. 2 was “borderline” and not S&S, he concluded that the muddy conditions did not pose a high degree of danger and that “the evidence reflects no more than a moderate degree of negligence.” Id. at 703.

            We are troubled by the judge’s statement implying that there is a “requisite high degree of danger” that must be present to support an unwarrantable failure determination. Id. at 701. The degree of danger, although a relevant factor, is not a threshold requirement for determining whether a violation is unwarrantable. The level of danger is but one factor to be considered in evaluating whether a violation is unwarrantable. See, e.g., Windsor Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999) (stating that the Commission has recognized that a number of factors are relevant in determining whether a violation is the result of an operator’s unwarrantable failure). The factor of dangerousness may be so severe that, by itself, it warrants a finding of unwarrantable failure.  However, the converse of this proposition – that the absence of significant danger precludes a finding of unwarrantable failure – is not true. The judge should have considered the evidence relating to the danger factor, determined whether it was an aggravating or mitigating circumstance, and weighed it against the other relevant factors to determine whether the operator’s conduct under the circumstances amounted to an unwarrantable failure. Because the judge did not sufficiently address the other factors and seemingly based his unwarrantable failure finding on the danger factor alone, we are unable to evaluate whether he erred in determining that Manalapan’s conduct was not unwarrantable.

            Additionally, in considering the degree of danger, it is not clear whether the judge considered the evidence of potential ignition sources presented by the Secretary. On Belt No. 3, the Secretary presented evidence that there was an energized charger cable that had been run over and was stuck in a man door. Tr. 109, 335-36. Also, as to both violations, the Secretary presented evidence that a number of belt rollers were turning in coal accumulations. 32 FMSHRC at 699, 702. Because the judge did not directly address this evidence, we cannot determine how he viewed it in light of his conclusion that the wet and muddy conditions presented a mitigating circumstance. Moreover, in considering the accumulations around Belt No. 3, the judge affirmed the inspector’s S&S designation, 32 FMSHRC at 700, which requires a finding that the hazard contributed to by the violation has a reasonable likelihood of causing a serious injury.  See Cement Div., National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). Accordingly, the judge on remand must also address these issues.

            B.        Extent of the Violative Conditions and Efforts to Abate the Violative Conditions

            While the judge found the low level of danger to be a mitigating factor, he did not make explicit findings as to the extent of the violations and whether the factor constituted a mitigating or aggravating circumstance. The judge found the violation as to Belt No. 4 extensive, and in doing so noted that it took a whole crew of 15 or 18 miners two shifts to clean up the accumulations for the entire belt system.  32 FMSHRC at 698; Tr. 346-47, 365.  However, the judge found the evidence on the extent of the violations on both Belt Nos. 3 and 2 equivocal because the conditions were wet and muddy. 32 FMSHRC at 701-03. We are unable to discern from the record how the judge viewed and weighed the evidence on the extent of the violations.

            Similarly, the judge did not analyze Manalapan’s efforts to abate the violative conditions prior to the issuance of the citation and orders in this case.  The evidence of the number of miners and time necessary to clean up the accumulations after the issuance of the citation and orders is relevant to this issue, as it is to the factor of extensiveness of the violative condition.  Also relevant is Miniard’s testimony that prior to the inspection, he had assigned four miners to work on the four belts by shoveling spillage and using buckets to dip the mud and place it back on the belt.  Id. at 693; Tr. 329, 343-45.

            On remand, the judge must make explicit findings on the extent of each of the violations on Belt Nos. 3 and 2 and whether this served as a mitigating or aggravating factor. The judge must also make findings on Manalapan’s efforts to abate the violative conditions prior to the issuance of the citations and orders.

            C.        Whether Manalapan was on Notice that Greater Efforts for Compliance were Necessary

            The judge considered Manalapan’s history of past accumulation violations inconsistently within his decision and contrary to Commission precedent. Repeated similar violations may be 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. San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007); Amax Coal Co., 19 FMSHRC 846, 851 (May 1997). Despite finding Manalapan’s history of violations to be an aggravating factor with regard to the unwarrantable designation of Belt No. 4 (32 FMSHRC at 698), the judge erroneously discounted the operator’s history in his consideration of the unwarrantable nature of Belt No. 3 (id. at 701). The judge reasoned that 40% of the 27 prior violations relied on by the Secretary were not designated as S&S and that not all of them concerned accumulation violations on conveyor belts. Id. This is contrary to Commission precedent.

            In evaluating an operator’s history of violations for unwarrantable failure purposes, the Commission does not require past violations to also have been caused by unwarrantable failure and “has declined to limit ‘the circumstances under which past violations may be considered by a judge in determining whether an operator’s conduct demonstrated aggravated conduct.’” Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001) (quoting Peabody Coal Co., 14 FMSHRC 1258, 1263 (Aug. 1992) (rejecting contention that only past violation involving the same area may be considered for unwarrantable determination)). Just as the past violations need not be designated as unwarrantable failures to comply, it is not pertinent to the analysis of the notice factor in unwarrantable failure determinations that the prior violations were not designated as S&S. Thus, had the judge considered the operator’s history consistently and under the correct standard, he presumably would have found it likewise to be an aggravating factor as to the violations of Belt Nos. 3 and 2, as he did with regard to Belt No. 4.

            D.        Duration of Violative Condition, Whether the Condition was Obvious, and Manalapan’s Knowledge of Condition

            The judge’s finding as to how long the conditions existed is unclear. The citation and orders state that the conditions “existed for at least several shifts.” 32 FMSHRC at 696, 699, 702, 704; Gov’t. Exs. 1-4. The judge noted the “duration” of the accumulations along Belt No. 4 as being attributable to “at least a high degree of negligence evidencing an unwarrantable failure,” without discussing the length of time the conditions existed. 32 FMSHRC at 698. In his discussion of the violation on Belt No. 3, he stated that the testimony and preshift and onshift books reflect that the accumulations were present “for at least several shifts,” consistent with the language in the citation and orders. Id. at 700, 701. The Secretary contends that the notations of “wet and muddy” under the hazards column of the operator’s preshift and onshift examination books indicate that there were violative accumulations of combustible coal material for at least five weeks. PDR at 6, 13 & n.3; S. Post-Hrg. Br. at 17, 18. Inspector Lewis testified that he interpreted these entries as admissions of violative coal accumulations. Tr. 94. He also admitted that his contemporaneous notes indicated that the duration was unknown and that he was not sure how long the violative conditions existed. When pressed by the judge as to how long it would take for these conditions to arise, he stated about two weeks. Tr. 118, 128. Manalapan contends that the notations in the examination books only signify wet and muddy conditions and not violative coal accumulations. M. Br. at 4; M. Post-Hrg. Br. at 24-25. Miniard testified that the notations in the books refer to general conditions and travel hazards, not violative coal accumulations, and were made under the instruction of MSHA’s inspectors, who, as previously mentioned, told him to write down “wet and muddy” instead of “none observed.” Tr. 342-43, 362-63.

            The notations in the examination books relate to the duration of the violations, whether the condition was obvious, and the operator’s knowledge of the violative conditions. The judge considered the evidence of the examination books in the context of evaluating the unwarrantable designation of Belt No. 4, and specifically noted the “repeated reference to accumulations, albeit muddy, in the preshift and onshift books” as an aggravating factor in his unwarrantable failure analysis. 32 FMSHRC at 698. However, he did not consider this evidence in similar fashion with regard to Belt Nos. 3 and 2. Given the judge’s inconsistent treatment of this evidence, his failure to reconcile the conflicting testimony regarding the examination books, and his lack of a finding as to the duration of the violations, we are unable to discern the effect of the factors of duration of violative condition, whether the condition was obvious, and Manalapan’s knowledge of the violations’ existence on the issue of unwarrantable failure as to Belt Nos. 3 and 2. On remand, the judge must address and reconcile the evidence as to the duration of the violations, whether they were obvious, and the operator’s knowledge of them. He must then weigh these factors, along with the other relevant factors, to ascertain whether the operator’s conduct rises to the level of an unwarrantable failure as to both violations.

            In sum, in concluding that the violations for Belt Nos. 3 and 2 did not constitute unwarrantable failures to comply by Manalapan, the judge failed to address evidence on certain relevant factors, and failed to make necessary findings and consider other relevant factors. As set forth in our decision, on remand, the judge must explicitly consider and weigh all the relevant factors as to whether Manalapan’s conduct constituted unwarrantable failures as to Order Nos. 7511472 (Belt No. 3) and 7511478 (Belt No. 2).

III.

Conclusion

            For the foregoing reasons, we vacate the judge’s unwarrantable failure determinations as to Orders No. 7511472 and 7511478 and remand for reconsideration of the evidence under the correct legal standard.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Commissioner Young, concurring in part and dissenting in part:

            I agree with my colleagues that the ALJ’s decision concerning Order No. 7511472 (Belt No. 3) should be vacated and remanded for the reasons cited in our opinion. However, I disagree with my colleagues concerning Order No.7511478 (Belt No. 2), and I write separately because the judge correctly applied the standard for significant and substantial violations to the facts on Belt No. 2, and because I believe my colleagues have misunderstood how the judge below determined that the operator’s violation of the accumulations standard in 75.400 did not result from the operator’s unwarrantable failure. Because I believe the judge’s decision on those conditions within this order is supported by substantial evidence and consistent with the law, I would affirm.

            A.       Significant and Substantial

            Contrary to the majority, I find the judge’s discernment of the relative dangers found in the area of Belt No. 2 to be clear, consistent with a logical theory of the case, and supported by substantial evidence. As the judge notes, the uncontradicted testimony at hearing established that the conditions along the No. 2 belt were wetter than those along Belt Nos. 3 and 4. 32 FMSHRC at 702 (citing Tr. 91,144, 337). The judge also noted that Inspector Lewis himself conceded that the conditions here comprised a “‘borderline situation’ as far as a violation was concerned.” Id. (citing Tr. 150-52).

            The judge further relates, in some detail, testimony by witnesses for the operator about the wet and muddy conditions, corroborating this with additional evidence from inspector Lewis about the unlikelihood of a fire arising in those conditions. 32 FMSHRC at 703 (citations omitted). While the judge found the evidence “adequate” to sustain the violation, he applied the correct standard for S&S to the facts as he found them and deleted the S&S designation. In so doing, he demonstrated a basis in the evidence for distinguishing the conditions along the No. 2 Belt from those along Belt Nos. 3 and 4. I agree with the judge’s analysis, and no further exposition is necessary.

            B.       Unwarrantable Failure

            The majority also contends that the judge erred by failing to properly balance all of the factors relevant to the determination of whether or not an unwarrantable failure occurred. In their view, the judge essentially determined that an absence of extreme danger alone precluded a finding of unwarrantable failure.

            On close reading, however, the judge has not relied solely on the diminished degree of danger. Rather, the reduced danger is a circumstance which affects two factors, and one of those factors has repeatedly been upheld as uniquely determinative on the issue of unwarrantable failure. In holding that the reduced degree of danger arising from the “extremely muddy nature of the accumulations [was] a mitigating factor” (32 FMSHRC at 699, 701), the judge clearly connects this circumstance to a reduction in the operator’s level of negligence, or culpability, by concluding: “Consequently, the failure to promptly remove these accumulations does not rise to the level of aggravated conduct.” Id. at 701 (emphasis added).

            Further emphasizing this logical connection, the judge sums up the negligence issue: “Although the negligence attributed to Manalapan is moderate to high, Manalapan’s conduct is not sufficiently aggravated or unjustified to warrant an unwarrantable failure.” Id. (emphasis added). Thus, it is clear that the judge did not dismiss the unwarrantable failure finding solely based on the relative danger of conditions on the Number 2 belt. Rather, he viewed those conditions as mitigating the operator’s negligence in failing to address them more promptly.

            Aggravated conduct reflecting more than ordinary negligence on the part of the operator has long been held to be a prerequisite for any finding of unwarrantable failure. See, e.g., Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1998) (“[W]e conclude that unwarrantable failure means aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of the Act.”). It is obvious from context that the judge was discussing the wetness of the accumulations not merely as a circumstance that made those conditions less dangerous than on Belt Nos. 3 and 4, but as a factor that affected his consideration of the operator’s negligence. Unlike the other factors, which may have relative weight which must be evaluated against other aggravating or mitigating circumstances, a finding of moderate negligence, alone, forecloses an unwarrantable failure determination. See Emery Mining, 9 FMSHRC at 2001 (unwarrantable failure must constitute more than ordinary negligence).

            The judge’s reasoning is consistent with that expressed elsewhere in his opinion on the issue of unwarrantable failure, and is in fact directly drawn from our jurisprudence. In regard to the No. 4 belt, the judge in fact sets the stage for his analysis of the other belts. After recounting the aggravating factors, the judge observed that “these and all other relevant factors must be viewed in the context of the factual circumstances of this case and all material facts and circumstances must be examined to determine if a mine operator’s negligence is mitigated.” 32 FMSHRC at 698 (citing Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000)) (emphasis added); see also Eagle Energy Inc., 23 FMSHRC 829, 834 (Aug. 2001) (citations omitted) (same language and analytical framework). Continuing in that vein, the judge further noted that “resolving the unwarrantable failure issue is a matter of degree,” requiring a determination of whether the accumulations at issue “posed a high degree of danger that warranted a greater standard of care.” 32 FMSHRC at 698.

            Thus, the judge has cogently expressed the essence of an unwarrantable failure analysis for the entire case. There was no need for him to restate and re-evaluate elements that maintained their relative value, and there is certainly no error in rejecting an unwarrantable failure designation solely on the grounds that the operator’s misfeasance represented, at worst, ordinary negligence – provided there is evidentiary support for that determination. I believe there is, and I therefore respectfully dissent.

/s/ Michael G. Young

Michael G. Young, Commissioner

Distribution:

John M. Williams, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Jerold Feldman

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004