FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 9, 2012

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION

BY: Duffy, Young, Cohen, and Nakamura, Commissioners

            In this consolidated contest and civil penalty proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), Mach Mining, LLC (“Mach”) is seeking review of an order alleging that Mach violated 30 C.F.R. § 75.370(d) by resuming mining without an approved ventilation plan and that the violation was caused by the operator’s unwarrantable failure to comply with the standard. Administrative Law Judge Margaret Miller affirmed the order and allegation of unwarrantable failure. 33 FMSHRC 1674, 1681, 1682 (July 2011) (ALJ). For the reasons that follow, we affirm the violation, and vacate and remand the Judge’s determination of unwarrantable failure.

I.

Factual and Procedural Background

            Mach operates the Mach No. 1 Mine, an underground coal mine near Johnston City, Illinois. Mach uses continuous miners to develop gate roads and a longwall shearer to retreat-mine blocks of coal referred to as “panels.” 33 FMSHRC at 1675. Mach submitted to the Department of Labor’s Mine Safety and Health Administration (“MSHA”) a ventilation plan, which was approved in March 2008, which showed that three longwall panels (Panels 1 through 3) would be mined to 18,000 feet in length. Id. At times while Mach was mining Panel 2 and driving the headgate road for Panel 3, Mach was engaged in negotiations with MSHA over a general, or base, plan for the mine and site-specific plans for Panels 2 and 3. PDR at 5. Mach reached an impasse in plan negotiations with MSHA and resumed mining, which led to the issuance of citations and orders described briefly in the paragraphs that follow.

            In February 2009, Mach and MSHA were involved in negotiations regarding the bleeder system for Panel 2. 33 FMSHRC at 1678. After an impasse was reached, on March 11, 2009, MSHA Inspector Bobby Jones issued a technical citation (No. 8414236) to Mach alleging a violation of 30 C.F.R. § 75.370(a)(1) for mining Panel 2 without an approved ventilation plan. Id.; Mach Ex. C; Tr. 75. Mach contested the citation, and the matter was docketed as LAKE 2009-360-R and assigned to Administrative Law Judge Avram Weisberger, who scheduled a hearing for April 21, 2009. PDR at 5; Tr. 75. In the meantime, Mach mined Panel 2 in accordance with the plan provisions MSHA sought. Tr. 76-77; PDR at 5. MSHA vacated the citation on April 15, 2009, and the Judge dismissed the contest. Mach Ex. C; S. Br. at 3 n.3. After Citation No. 8414236 was vacated, Mach mined Panel 2 in accordance with the plan it had submitted. 33 FMSHRC at 1678; S. Br. at 3 n.3; PDR at 5; Tr. 77. Mach did not receive a notification from the District Manager approving the ventilation plan for Panel 2. 33 FMSHRC at 1678.

            Meanwhile, on March 13, 2009, MSHA Inspector Bobby Jones discovered that Mach had mined Headgate No. 3 (“HG 3”) 1,000 feet beyond the set up-room established in its approved ventilation plan for Panel 3, which created a stair-step effect. Id. at 1675. Inspector Jones issued Order No. 8414238, pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), alleging that Mach violated 30 C.F.R. § 75.370(d) for mining HG 3 without an approved ventilation plan. Id. That order was docketed as LAKE 2009-395-R and assigned to Judge Richard Manning.

            On June 4, 2009, Mach submitted a revised ventilation base plan to MSHA in order to fulfill requirements for a 6-month review of the plan, and new requirements for justifying the use of belt air. 33 FMSHRC at 1678; Tr. 82. Mach and MSHA entered into discussions regarding the suitability of the plan to conditions at the mine. 33 FMSHRC at 1678.

            On August 6, 2009, District Manager Robert Phillips sent a letter to Mach identifying items that needed to be addressed in order for Mach to continue mining HG 3. Mach Ex. E. On September 3, 2009, Mach responded to MSHA’s August 6 deficiency letter by submitting a revised ventilation plan to MSHA, specific to mining Panel 3. 33 FMSHRC at 1676; Mach Ex. F.

            On September 9, 2009, MSHA Inspector Bobby Jones terminated Order No. 8414238. 33 FMSHRC at 1676. At the time that Inspector Jones terminated the order, he advised Mach’s Mine Manager, Anthony Webb, to speak with Jones’ supervisors regarding the reasons for the termination. Id. at 1679. When Webb spoke with Inspector Jones’ supervisor, Mike Renni, Mr. Rennie did not give Webb an explanation but, instead, told him that the decision to terminate came from someone above Rennie. Id.; Tr. 88-89. Webb chose not to contact the District Manager. 33 FMSHRC at 1679.

            MSHA Inspector Phillip Long recorded in his inspection notes of September 16 and 17, 2009 that he had discussions with Webb, who indicated that Mach was awaiting approval of its ventilation plan for Panel 3 from MSHA. Id. at 1677; Tr. 27-32; Gov’t Exs. 9-10. As indicated in Inspector Long’s notes for September 17, Webb asked him if Long would issue “paper” if they “started up.” Tr. 32-33; Gov’t Ex. 10. Long answered, “more than likely.” Id.

            Mach’s counsel sent a letter dated September 17, 2009, to MSHA stating that, although MSHA had indicated “that Mach still does not have an approved ventilation plan,” Mach would be resuming its development of HG 3 based upon counsel’s interpretation that the September 9 termination of Order No. 8414238 amounted to approval of Mach’s proposed ventilation plan, submitted on September 3. Gov’t Ex. 11 at 1, 2 n.1.

            On September 21, 2009, Inspector Long spoke with Chris England, an employee of Mach, who stated that Mach was still setting up HG 3 but that they were very close to beginning mining. 33 FMSHRC at 1677; Tr. 35; Gov’t Ex. 7. Mr. England asked, “Are you going to issue an order if we start up?” and Inspector Long replied, “Yes, if the plan has not been approved.” 33 FMSHRC at 1677; Tr. 35-36. Inspector Long then learned from Mine Manager Webb that mining had in fact begun. 33 FMSHRC at 1677. Inspector Long traveled to the area, confirmed that mining was occurring, and issued the subject section 104(d)(2) order (Order No. 8414529) alleging a violation of section 75.370(d). Id. The order stated that Mach had resumed mining before a ventilation plan had been approved by the District Manager. Id. at 1676.

            The parties continued to discuss the provisions of both the base ventilation plan and the site-specific plan for Panel 3. Id. Eventually, the parties reached an impasse. Id. On September 29, 2009, MSHA issued two technical citations (Citation Nos. 6680550 and 6680551) to Mach, alleging violations of section 75.370(d). Id.; Jt. Mot. to Consol. Mach contested the citations, and the matter was assigned to Judge Miller. 33 FMSHRC at 1676. Those citations are the subject of Mach Mining, LLC, Docket Nos. LAKE 2010-1-R, et al., in which the Commission is separately issuing a decision on this date.

            Mach contested the subject order (No. 8414529), and the matter proceeded to hearing before Judge Miller.

            Judge Miller concluded that Mach had violated section 75.370 as alleged in Order No. 8414529 and that the violation had occurred as a result of the operator’s unwarrantable failure to comply. Id. at 1681-82. In finding a violation, the Judge rejected the operator’s argument that MSHA’s termination of Order No. 8414238 amounted to an approval of Mach’s ventilation plan for Panel 3. Id. at 1675-81. The Judge also found that Mach’s resumption of mining without an approved ventilation plan was unwarrantable, rejecting Mach’s argument that there was a good faith disagreement over the meaning of the termination of Order No. 8414238. Id. at 1681-82. Accordingly, the Judge assessed a penalty of $5,000, rather than the proposed penalty of $4,000. Id. at 1674-75, 1683.

            Mach filed a petition requesting discretionary review of the Judge’s decision, which the Commission granted. In addition, the parties filed a joint motion requesting that the Commission consolidate the instant proceedings with Mach Mining, LLC, Docket Nos. LAKE 2010-1-R, et al., where, Judge Miller had also found in favor of the Secretary, and the Commission had granted Mach’s petition for discretionary review.

II.

Disposition

A.        Whether termination of Order No. 8414238 amounted to approval of Mach’s ventilation plan?

            Mach contends that MSHA’s termination of Order No. 8414238 constituted approval of Mach’s proposed site-specific ventilation plan for Panel 3. PDR at 8-14. It explains that Order No. 8414238 alleged that the operator had mined HG 3 without an approved ventilation plan in place. Id. at 8. The operator asserts that because a termination means that the allegedly violative condition (mining without an approved plan) has been abated, the termination constituted a writing indicating that the proposed ventilation plan had been approved within the meaning of 30 C.F.R. § 75.370(c)(1). Id. at 8-9. Mach maintains that because its ventilation plan had been approved, the subject order for mining without an approved plan should be vacated. Id. at 9. Finally, it argues that MSHA approved Mach’s ventilation plan for Panel 2 by vacating a citation in a similar manner. Id. at 12-13.

            The Secretary responds that the termination of the order did not constitute written notification of the disputed plan’s approval as required by section 75.370(c)(1). S. Br. at 9-10. We agree.

            We begin our analysis with the language of section 75.370(c)(1). As the Commission has recognized, the “language of a regulation . . . is the starting point for its interpretation.” Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). Where the language of a regulatory provision is clear, the terms of that provision must be enforced as they are written unless the regulator clearly intended the words to have a different meaning or unless such a meaning would lead to absurd results. See id.; Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).

            Section 75.370(c)(1) provides in pertinent part that, “The district manager will notify the operator in writing of the approval or denial of approval of a proposed ventilation plan or proposed revision.” 30 C.F.R. § 75.370(c)(1). By its terms, section 75.370(c)(1) clearly requires a written notification to an operator by the district manager that a ventilation plan has been approved or that approval has been denied. The standard sets forth two enforcement paths: approval of a ventilation plan or denial of approval of a ventilation plan, either of which must be taken by a written notification by the district manager. It does not provide for a constructive or implied approval process.

            Here, the terms for approval required by section 75.370(c)(1) were not met. There was no written notification by the district manager approving Mach’s ventilation plan for Panel 3. The termination of Order No. 8414238 was written by MSHA Inspector Jones, not the district manager. Moreover, the termination simply stated, “MSHA hereby terminates this order,” and did not address the proposed plan, much less approve it. Mach Ex. D (Order No. 8414238-07). In fact, there were no representations from MSHA that the termination of Order No. 8414238 was intended to amount to an approval of Mach’s ventilation plan.

             We further conclude that Mach’s experience with Panel 2 does not support its argument that termination of the order amounted to approval of its ventilation plan. There are factual differences that distinguish the circumstances that occurred with respect to Panels 2 and 3. Mach resumed mining Panel 2 after the technical citation issued for that panel had been vacated, while Order No. 8414238 was merely terminated. In addition, the enforcement document vacating Citation No. 8414236 regarding Panel 2 provided a lengthy explanation of Mach’s obligations for ventilating its bleeder system. Mach Ex. C (Citation No. 8414236-06). In contrast, Order No. 8414238 was terminated with a few words. Mach Ex. D (Order No. 8414238-07).

            Moreover, Mach’s argument with respect to Panel 2 and the termination of Order No. 8414238 is not a defense to liability because it amounts to an estoppel argument. See Austin Powder Co., 29 FMSHRC 909, 920 (Nov. 2007). Mach is essentially arguing that MSHA should be estopped from citing it for operating without an approved ventilation plan, because to do so would be inconsistent with MSHA’s prior actions in terminating the order, and inconsistent with its actions with respect to Panel 2 (when Mach was permitted to mine with its proposed plan after MSHA vacated a citation). However, the Commission has “long held that an inconsistent enforcement pattern by MSHA inspectors does not prevent MSHA from proceeding under an application of the standard that it concludes is correct.” Id., citing Nolichuckey Sand Co., 22 FMSHRC 1057, 1063-64 (Sept. 2000)); see also Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (“prior instances of inconsistent action by MSHA do not constitute a viable defense to liability.”). Rather, confusing MSHA actions may be a mitigating factor in determining an operator’s negligence. King Knob Coal Co., 3 FMSHRC 1417, 1422 (June 1981). Thus, as discussed further below, any inconsistent enforcement actions by MSHA are relevant in considering Mach’s degree of negligence.

            For these reasons, we affirm the Judge’s determination that the termination of Order No. 8414238 did not amount to approval of Mach’s ventilation plan, and affirm Order No. 8414529.

B.        Whether Mach’s violation was caused by unwarrantable failure?

            The “unwarrantable failure” terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence, and we characterized it in such terms as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Id. at 2003-04.

            The Commission has further recognized that whether conduct is “aggravated” in the context of unwarrantable failure is determined by considering the facts and circumstances of each case to determine if any aggravating or mitigating circumstances exist. Factors relevant to that consideration 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 were necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious or 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, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

            The Commission has repeatedly made clear that it is necessary for a judge to consider all relevant factors in determining whether an unwarrantable failure to comply with a standard has occurred. Coal River Mining, LLC, 32 FMSHRC 82, 89 (Feb. 2010); Windsor Coal Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC 125, 129-31 (Mar. 2007) (remanding unwarrantable determination for further analysis and findings when judge failed to analyze all factors). While an administrative law judge may determine, in his or her discretion, that some factors are not relevant, or may determine that some factors are much less important than other factors under the circumstances, all of the factors must be taken into consideration and at least noted by the judge. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009).

            The Judge here considered three of the factors determined by the Commission to be relevant to the consideration of whether a violation was caused by unwarrantable failure. The Judge considered the factors of obviousness and the operator’s knowledge of the existence of the violation, concluding that the “violation was obvious and was done with full knowledge of the operator, as the mine intentionally began mining without a plan in place.” 33 FMSHRC at 1682. In addition, the Judge considered the factor of the length of time that the violation has existed. Id. The Judge stated that “[w]hile the violative condition may not have existed for an extended period of time, I agree with the Secretary’s argument that . . . ‘the violative act itself outweighs the short period of time between action and discovery.’” Id., quoting S. Post-Hearing Br. at 12. Thus, the Judge balanced the short duration of the violation against the factors of obviousness and the operator’s knowledge of the existence of the condition, which she found to be aggravating.

            Although the Judge addressed the operator’s knowledge of the violation, we conclude that the Judge failed to adequately consider and address mitigating evidence relevant to that factor. As noted above, although MSHA’s seemingly inconsistent actions in terminating Order No. 8414238 and its actions with respect to Panel 2 are not defenses to liability, such evidence is relevant to whether Mach’s violation, alleged in Order No. 8414529, is unwarrantable. After Citation No. 8414236 (issued with respect to Panel 2) was vacated, Mach was permitted to mine in accordance with the plan it had submitted even though it never received written plan approval from the district manager. Tr. 77-78.

            With regard to the site-specific plan for Panel 3, the MSHA district manager’s letter of August 6, 2009 to Anthony Webb stated:

The following plan requests are based on conversations between District 8, yourself and Operations Manager, Mr. Drexel Short, as to how Mach intends to ventilate the mine with Headgate #3 mined to 19,000 feet. These plan items would need to be addressed and approved by the District Manager in order to terminate the 104(d)(1) Order and permit the resumption of mining in HG #3.

Gov’t Ex. 4, Mach Ex. E (emphasis added). The letter then set forth two acceptable options for connecting a 19,000 foot Panel 3 into the existing bleeder system. This letter, in effect, linked the termination of Order No. 8414238 with permitting the resumption of mining in HG 3. In response, Mach’s letter of September 3, 2009 to the district manager stated, “This letter, along with the enclosures, responds to your letter of August 6, 2009 with the aim of abating Order No. 8414238 issued under Mine Act § 104(d) on March 13, 2009.” Mach Ex. F. Order No. 8414238 was terminated on September 9, within a week of submission of the the proposal contained in Mach’s September 3 letter. MSHA’s statement in the August 6 letter, together with its prompt termination of the Order after receiving Mach’s September 3 letter, constitutes a mixed signal to Mach as to the significance of the termination of the Order.

            When Mach asked Inspector Jones the meaning of the termination, Inspector Jones, and Jones’ supervisor, were unable to provide an explanation. Tr. 88-89, 101. In fact, Inspector Long testified that since there was no “clearcut answer” for why the order had been terminated, he could understand why Mach “could assume that [it] could resume mining.” Tr. 53. Mach contacted its counsel regarding resuming mining, and its counsel advised Mach that it could resume mining. Tr. 91.

            Moreover, it is undisputed that Judge Miller did not explicitly consider all of the factors that the Commission has determined are relevant to an unwarrantable failure determination. The Secretary acknowledges that the Judge did not discuss the extent of the violation in her unwarrantable failure analysis. S. Br. at 16 n.13. The Secretary notes, however, that the Judge recognized in a different section of her decision that Mach had mined an additional ten feet in

HG 3 without an approved ventilation plan. Id., citing 33 FMSHRC at 1676. The portion of the decision referred to by the Secretary, however, is merely the Judge’s recitation of Order No. 8414529, which provides in part, “Approximately 10' of advanced had been made on the curtain side of the entry.” 33 FMSHRC at 1676. That alone does not constitute consideration of the extent of the violation as a factor in determining whether the violation was owing to Mach’s unwarrantable failure. On remand, the Judge shall specifically address this factor and make findings, including whether it is a mitigating or aggravating factor.

            Similarly, as Mach argues, the Judge did not address whether the violation posed a high degree of danger. Mach Reply Br. at 7. In the significant and substantial (“S&S”) part of her decision, the Judge stated that Inspector Long did not designate the violation as S&S because the inspector thought it was unlikely that the cited condition would result in the injury of a miner. 33 FMSHRC at 1681. The Judge concluded that the violation was “serious,” nonetheless, because the mine had mined a stair-step configuration in the bleeder system without seeking approval and “had resumed mining with no clear direction or specifically written, thought-out plan for the ventilation of the working area.” Id. Inspector Long testified, however, that he had indicated in the order that injury was unlikely because the ventilation controls of the plan that had been previously approved were still being followed, and Mach did not have a history of accidents or injuries that he could relate to the ventilation plan. Tr. 40. On remand, the Judge must consider and make findings on this factor, balancing it against other factors.

            The Judge must also consider and make findings regarding whether the operator had been placed on notice that greater efforts at compliance with the cited standard were necessary. The Commission has determined that repeated similar violations may be relevant to an unwarrantable failure determination to the extent they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. Enlow Fork Mining Co., 19 FMSHRC 5, 11 (Jan. 1997) (citations omitted). Here, evidence regarding the issuance of Citation No. 8414236 (issued with respect to Panel 2) and Order No. 8414238 would be relevant to whether the operator had been placed on notice that it must not resume mining without an approved ventilation plan.

            Finally, the Judge did not address the factor of the operator’s efforts in abating the violation. Mach states that the Secretary did not introduce any evidence regarding Mach’s efforts to abate the violative condition. PDR at 16. Mach then describes actions that it had taken in an effort to have Order No. 8414238 terminated, although it does not state what actions it took to abate the subject order, Order No. 8414529. See id.; Mach Reply Br. at 7 (discussing actions that occurred prior to the issuance of Order No. 8414529). The Secretary responds that she never contended that Mach failed to timely abate the violation once Order No. 8414529 was issued. S. Br. at 16 n.13. Under the circumstances, this factor is irrelevant to an unwarrantable failure analysis. Accordingly, although the Judge was required to address this factor, we conclude that her failure to do so amounts to harmless error.

            Accordingly, we vacate the Judge’s unwarrantable failure determination and assessment of penalty. We remand with instructions that the Judge reconsider whether the operator’s knowledge of the violation is an aggravating factor given seemingly inconsistent or confusing MSHA actions, and that the Judge consider and make findings on the factors of the extent of the violation, whether the violation posed a high degree of danger, and whether the operator had been placed on notice that greater efforts at compliance with section 75.370(d) were necessary.

III.

Conclusion

            For the foregoing reasons, we affirm the Judge’s determination that the termination of Order No. 8414238 did not amount to approval of Mach’s ventilation plan and affirm Order No. 8414529. We vacate the Judge’s unwarrantable failure determination and remand the matter to the Judge. On remand, consistent with this decision, the Judge shall reconsider whether the operator’s knowledge of the violation is an aggravating factor. The Judge shall also consider and make findings on the extent of the violation, whether the violation posed a high degree of danger, and whether the operator had been placed on notice that greater efforts at compliance with section 75.370(d) were necessary. After such consideration and determination of the unwarrantable failure issue, the Judge shall assess an appropriate civil penalty in accordance with the provisions of section 110(i) of the Mine Act, 30 U.S.C. § 820(i).

/s/ Michael F. Duffy

Michael F. Duffy, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Chairman Jordan, concurring in part and dissenting in part:

            I join the majority in affirming the order issued to Mach Mining for resuming mining before a ventilation plan was approved. I agree that the Judge correctly ruled that the termination of a prior order did not constitute approval of Mach’s ventilation plan. For the reasons stated below, however, I would also affirm the Judge’s unwarrantable failure determination.

            In concluding that the violation was the result of Mach’s unwarrantable failure because “at best” the mine showed a serious lack of reasonable care, the Judge relied on her finding that the operator was on notice both that it had no ventilation plan in place and that it could not mine without an approved plan. 33 FMSHRC 1674, 1682 (July 2011) (ALJ). Substantial evidence in the record supports this finding.

             Inspector Long’s notes are particularly persuasive evidence in this regard. The notes indicate that even after the prior order was terminated, Anthony Webb, the President of Mach, knew he needed plan approval before mining resumed. For example, the inspector’s notes of September 16, 2009 (written after Order No. 8414238 had been terminated) indicate that he spoke with Webb and discussed the fact that the mine was still waiting for approval of the ventilation plan. Gov’t Ex. 9 (“Discussed inspection and work being doing [sic] in Unit 3. Company is awaiting plan approval”) (emphasis added). See also Tr. 98-99. As the Judge explained, 33 FMSHRC at 1677, the notes reflected Webb’s concern that it might take time to receive approval. This indicates that Webb knew that such approval was necessary to begin mining.

            The inspector’s notes from September 17, 2009 are also instructive. They indicate that Long and Webb again talked about the fact that the mine continued to wait for MSHA to approve the plan. Webb asked Long whether “paper would be issued” if Mach mined without a plan, and the inspector responded that this was “more than likely.” Id.; Gov’t Ex. 10 (“Anthony stated they are waiting on MSHA”); Tr. 63, 99-100.

            Webb’s conversations with the inspector, as corroborated by these notes, belie Webb’s claim that he had a good faith belief that a plan was in place and mining could legally resume once the prior order was terminated. The Judge refused to credit Webb’s testimony that he thought the ventilation plan was approved when the prior order was terminated on September 9, 2009, remarking that, “I do not find Webb to be a credible witness, and find that his testimony was an after-the-fact attempt to make excuses for his actions.” 33 FMSHRC at 1679. Her unwarrantable failure finding was based, in large part, on her view that Webb did not have “a good faith belief that there was a plan in place based upon the termination of the order.” Id. at 1682. She went on to state: “I am not persuaded by Webb’s arguments and find them disingenuous given his background and his involvement in the plan approval process.” Id. The Judge correctly noted that Webb failed to contact the MSHA district manager, “the one person who could provide a definitive answer” about whether the plan had been approved. Id. Webb did not do so, even though the inspector told him several times that he could not mine without the approved plan. Id. Instead, he moved forward and began mining. Id.

            My colleagues in the majority cite to ambiguities which, in their mind, might have constituted mitigating evidence regarding the operator’s knowledge of the violation. Slip op. at 8. The Judge found, however, that the inspector told Mach that a citation would be issued if mining resumed. Id. Judge Miller found that the inspector “advised Webb multiple times that he could not begin mining without [the ventilation] plan,” and that “the mine intentionally began mining without a plan in place.” Id. Because this finding is supported by substantial evidence as demonstrated above, there is no need to remand in order to require the Judge to discuss possible “mixed signal[s],” slip op. at 8, to Mach from MSHA, as the Judge relied on evidence demonstrating that, in fact, MSHA sent clear signals to the operator informing it that it could not mine without an approved plan. 

            By resuming mining under the circumstances outlined above, Mach engaged in intentional misconduct, which is aggravated conduct constituting more than ordinary negligence. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991). Nonetheless, my colleagues remand for the Judge to consider additional factors that may be relevant to an unwarrantable failure determination. Slip op. at 8-10. I believe, however, that in an unwarrantable failure analysis, a Judge must be permitted to look at the “big picture” and should not be required to discuss every single factor, particularly those not relevant to the violation at issue. (For example, my colleagues instruct the Judge to analyze the factor of the extensiveness of the violation which, in terms of a vent plan violation, may be difficult to quantify). Id. The list of factors enumerated in our prior unwarrantable failure cases should provide helpful guidance to our Judges, not an unnecessary hindrance to a thoughtful unwarrantable failure analysis.

            In conclusion, the Judge found this violation to be a result of the operator’s unwarrantable failure because it had been informed by MSHA that it could not legally mine without an approved plan, yet the operator made an intentional choice to nonetheless begin mining. In my view, this is a quintessential example of aggravated conduct. Accordingly, I would affirm the Judge’s finding of unwarrantable failure.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

Distribution

Christopher D. Pence, Esq.

David J. Hardy, Esq.

Betts Hardy & Rogers, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333

W. Christian Schumann, Esq.

Edward Waldman, 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 Margaret Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19^th Street, Suite 443

Denver, CO 80202-2500