FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

November 10, 2011

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

DECISION

BY THE COMMISSION:

            This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). Oak Grove Resources, LLC (“Oak Grove”) was issued an order under section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), after a Mine Safety and Health Administration (“MSHA”) inspector observed an alleged violation of 30 C.F.R. § 75.334(d).

            At an expedited hearing before Administrative Law Judge Michael Zielinski, Oak Grove contested both MSHA’s issuance of Order No. 6698830 and its refusal to terminate the order. The judge ruled that the operator violated the safety standard, that its conduct amounted to an unwarrantable failure to comply, and that the Secretary’s refusal to terminate the order by approving Oak Grove’s proposed amendments to its ventilation plan was not arbitrary and capricious. 32 FMSHRC 169, 184 (Feb. 2010) (ALJ). Oak Grove petitioned for review of the judge’s decision, arguing that the order in question was duplicative of a previously issued citation and that the unwarrantable failure finding should be overturned. We granted the petition for discretionary review.

            For the reasons that follow, we conclude that Oak Grove did not preserve the duplication issue for Commission review. We also conclude that the judge considered all the relevant factors and evidence in his unwarrantable failure analysis and that his findings are supported by substantial evidence. Therefore, we affirm the decision of the judge.

I.

Factual and Procedural Background

            Oak Grove operates an underground coal mine in Jefferson County, Alabama. Id. at 169. The east section of the mine, where the violation occurred, consists of more than a dozen parallel longwall panels, each of which runs from east to west. Id. at 169-70; Gov’t Ex. 35. Most of those panels are “mined out.” 32 FMSHRC at 169. At the time Oak Grove received Order No. 6698830, it was attempting to mine the northern-most panel in this series. Id. This panel was 750 feet wide and is designated as the “11 East LW 38" (“11 East”). Id.; Tr. II 8. Mining operations had previously begun on the east end of the 11 East panel, and had proceeded west for approximately 6,000 feet. 32 FMSHRC at 169-70.

            Mined-out areas, also known as the “gob,” generate methane and require ventilation. Id. at 170. The gob in the east section of the mine is ventilated by the Main East Bleeder System. Id. Air is circulated by the No. 6 exhaust fan, which is situated at the surface of the mine, atop a shaft in the northeast corner of the series of panels. Gov’t Ex. 35. The fan ventilates the gob (mined out panels) by pulling air through the bleeder entries that run along the eastern side of the old longwall panels. 32 FMSHRC at 170. The mine is subject to spot inspections pursuant to section 103(i) of the Mine Act, 30 U.S.C. § 813(i), because it liberates over one million cubic feet of methane every 24 hours. Tr. I 30. During 2009 the mine had five incidents of methane ignitions (although none were along the longwall). Gov’t Exs. 13-17.

            The accumulation of water in the bleeder entries was a common occurrence at the mine. 32 FMSHRC at 170. Oak Grove attempted to control the accumulation of water by installing air-powered water pumps in the entries. Id. Problems began with these pumps around the middle of December 2009. Id. By the end of December, the low spots in the bleeder entries held significant water accumulations, particularly entries in the southeast corner of the 11 East panel as well as the northeast corner of the old adjacent 10 East panel. Gov’t Ex. 35.

            On December 30, 2009, MSHA inspector Derrick Busby inspected the mine. With respect to the Main East bleeder system he found that “[t]he area from [the]10-East [panel] to the No. 6 fan was recorded as being impassable due to high water levels.” OG Ex. 1. The inspector determined that the most recent time the bleeder was examined in its entirety was December 22, 2009. OG Ex. 1. As a result of his observations, the inspector issued Citation No. 6698645 pursuant to section 104(a) of the Mine Act, alleging a violation of 30 C.F.R. § 75.354(a)(2)(iii). Under that standard, a certified person is required, every seven days, to examine the bleeders, which includes, in part, traveling through at least one entry of each set of the bleeders and taking measurements at specific measuring point locations. The citation required that the violation be abated on or before December 31, 2009. Oak Grove was not actively mining the 11 East longwall panel at the time.

            Oak Grove contested the citation, as well as the associated civil penalty, although not as part of the current proceeding. Instead, the citation and its assessed penalty were included in the civil penalty case docketed as No. SE 2010-445. The citation was introduced as an exhibit at the hearing for the instant proceeding. OG Ex. 1.

            On January 4 and 5, 2010, Oak Grove mined the 11 East panel and continued to mine the panel on January 6. 32 FMSHRC at 179; Gov’t Ex. 10; Oral Arg. Tr. 60.

            On January 5, 2010, MSHA District 11 manager Richard Gates and assistant district manager Joseph O’Donnell met with Oak Grove mine managers to discuss ventilation issues at the mine. Tr. II 16-17, III 92. At this meeting, the Oak Grove managers requested an extension of the deadline for abatement imposed by Citation No. 6698645. Tr. III 92. They explained that the water accumulations, as well as a roof fall, were preventing Oak Grove from completely examining the bleeders. Tr. III 92-93.

            That afternoon Gates and O’Donnell also met with representatives of the United Mine Workers of America (“UMWA”), the union representing miners at Oak Grove. Tr. II 17. The representatives expressed concern about the conditions in the East Bleeder, especially because miners were traveling through significant water accumulations in the bleeder entries. Tr. II 18. At the conclusion of the meeting, O’Donnell called Jacky Schubert, the supervisor at MSHA’s Bessemer, Alabama field office, and informed him of the miners’ safety complaints. Tr. II 18-19.

            According to O’Donnell, Shubert then called Oak Grove management and informed them that “[i]f [the 11 East Bleeder system] is flooded and roofed and blocked, you do not operate the long wall.” 32 FMSHRC at 171 n.4; Tr. II 39-40, III 93-94. O’Donnell and Gates subsequently met and discussed whether MSHA had authority to order suspension of mining operations based on information obtained exclusively from miners and in the absence of an official enforcement action. Tr. II 42-43. After the meeting, O’Donnell called Oak Grove management and advised them to “forget” the earlier call, and that MSHA would see them in the morning. 32 FMSHRC at 171 n.4; Tr. II 43. When an Oak Grove manager advised that it would be running the longwall, O’Donnell told him, “[m]ake sure you’re up on the requirements of the law.” Tr. II 43. Oak Grove proceeded with mining the 11 East longwall panel subsequent to its discussions with MSHA.

            Meanwhile, on January 5, MSHA inspector Ed Boylen had commenced a regular inspection of the mine. 32 FMSHRC at 171. Boylen initiated a spot inspection of the longwall, pursuant to section 103(i), after becoming aware of the potentially hazardous conditions in the 11 East headgate and in the bleeder entries. Id.; Tr. I 30, 34. During his travel to the longwall, he encountered water accumulations, which prevented him from traveling further inby. Tr. I 34. Boylen returned to the surface and examined the No. 6 fan charts, which document the fan’s resistance measurements. 32 FMSHRC at 171. He discovered that the pressure differential readings at the fan chart had increased from 15 to 31, indicating significant restrictions to the air flow. Gov’t Ex. 2. Boylen concluded that the accumulated water in the bleeder entries was restricting the flow of air. 32 FMSHRC at 171; Tr. I 63. Boylen told Shubert, his supervisor, that he believed that Oak Grove was actively mining in the east section of the mine, but he was unable to travel to and examine the longwall because of the water in the bleeder entries. Tr. I 36, 119.

            On the next morning of January 6th, Boylen returned to the mine accompanied by Shubert. Tr. II 44-45. They began their inspection by examining the mine’s pre-shift examination books. Tr. I 37. They discovered that the December 29, 2009 pre-shift report described several locations as impassable either due to a roof fall or flooding, as well as a “down” pump near measuring point location (“MPL”) 480. Gov’t Ex. 9, at 22. Additionally, they discovered that 11 MPLs had not been examined on December 29, 2009.

            Oak Grove managers acknowledged that 11 MPLs were not visited during the weekly examinations. 32 FMSHRC at 171-72. The managers also acknowledged that these areas could not be accessed due to the roof fall on the headgate side of the 11 East panel and the water accumulations on the east side of the bleeders. Tr. I 40. The last time that the bleeders had been walked and examined in their entirety was apparently December 14, 2009. 32 FMSHRC at 171; Tr. I 37; Gov’t Ex. 9, at 22.

            Boylen and Shubert and several Oak Grove mine officials traveled underground to inspect the longwall. Tr. I 48. They entered the mine at 9:35 a.m., encountered accumulations of water at multiple locations, and ultimately reached chest-deep water near MPL 476 at 2:30 p.m. 32 FMSHRC at 172; Tr. I 44, 56. The water extended to the roof entry inby MPL 483. 32 FMSHRC at 172. Because of the water accumulations, they decided not to proceed any further. Id.  

            As a result of his observations, inspector Boylen issued Order No. 6698830 pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), for an alleged violation of section 75.334(d). In the order, he described the conditions as follows:

The mine operator is not maintaining the Main East Bleeder system. There [are] eleven MPL evaluation stations that [are] not being examined by certified officials. Water was allowed to roof inby MPL 483[,] thus the bleeder [] system was not inspected to determine its effectiveness in diluting and moving methane-air mixtures and other gases. This bleeder area has existed for at least 10 shifts and the longwall had continued operating under normal production. . . . A 75.364(a)(2)(iii) citation was written on 12/30/2009 [because a bleeder examination] could not be made in it[s] entirety. The mine operator has engaged in aggravated conduct, by the bleeder not being inspected, constituting more than ordinary negligence by allowing the bleeder to remain unexamined, while the longwall was in normal production mode. This violation is an unwarrantable failure to comply with a mandatory standard.

Gov’t Ex. 2. Boylen also issued Order No. 6698829 pursuant to section 104(d)(2) for an alleged failure to follow the approved ventilation plan in violation of section 75.370(a)(1).

            On January 6, 2010, Oak Grove filed a Notice of Contest for Order No. 6698830. On January 11, Oak Grove filed a motion for an expedited hearing and sought to consolidate the cases involving that order and Order No. 6698829. On January 15, Order No. 6698829 was terminated after the water in the cited areas had been “pumped down.” 32 FMSHRC at 173 n.7. These cases were set for hearing on January 26, in Birmingham, Alabama, before Judge Zielinski. At the hearing, Oak Grove decided to challenge only Order No. 6698830 on an expedited basis. Tr. I 7. Therefore, Order No. 6698829 was not at issue at the hearing.

            On the third and final day of the hearing, counsel for Oak Grove requested oral argument and moved for a bench decision on the record. Tr. III 201. The judge granted the motions and heard the respective arguments of the parties. 32 FMSHRC at 184. Subsequently, he affirmed the order and found that it was the result of an unwarrantable failure to comply with the safety standard. Tr. III 229. Additionally, the judge found that MSHA’s decision not to approve any of Oak Grove’s proposed alternative methods of examining the bleeder system was not arbitrary or capricious. 32 FMSHRC at 184; Tr. III 232-35.

            On February 12, 2010, the judge issued a written decision which included a more thorough analysis of the issues. He wrote that

“There are two primary issues, resolution of either of which in Oak Grove’s favor, would remove the bar to production. The first is the validity of the Order. If the Order is found to be valid, the second issue is the reasonableness of the conditions set for abatement of the violation, specifically, the validity of MSHA’s disapprovals of Oak Grove’s proposed amendments to its ventilation plan, that would have established an alternative method for evaluation of the bleeder system”

32 FMSHRC at 177.

            The judge determined that the cited standard had been violated because the operator failed to determine if the bleeder system was effective, by ascertaining measurements at the required MPLs, for a period of about three weeks. Id. The operator also failed to seal the worked-out area, which was an alternative means of compliance with the cited regulation. Id. The judge concluded that “[t]he violation was extensive, open, obvious, and was known to the operator” as high level officials had signed off on reports of incomplete examinations. Id. at 177-78. He further stated that, despite the conditions in the bleeder, Oak Grove resumed production on the longwall. Id. at 179. The judge concluded “that Order No. 6698830, which was issued as an S&S violation pursuant to section 104(d)(2) of the Act based upon Oak Grove’s unwarrantable failure to comply with the mandatory standard, was valid in all respects.” Id. Accordingly, he dismissed Oak Grove’s contest of the order.

II.

Disposition

            On review, Oak Grove contends that the judge erred in sustaining Order No. 6698830, which alleged a violation of section 75.334(d), while the citation for an alleged violation of section 75.364(a)(2)(iii) was already pending. In other words, Oak Grove contends that the two enforcement actions are impermissibly duplicative. In addition, Oak Grove contends that the judge erred in finding that Order No. 6698830 was attributable to its unwarrantable failure to comply with the standard. Oak Grove argues that the judge’s findings in this regard are not supported by substantial evidence and that the judge erroneously determined that Oak Grove had notice that it should not have been operating the longwall at the time the order was issued. Oak Grove does not challenge the judge’s determination that it violated section 75.334(d). Nor did the operator petition for review of the judge’s factual or legal findings regarding its efforts to abate the violation.

            The Secretary asserts that Oak Grove failed to present to the judge its theory that the enforcement actions are duplicative, and therefore, according to the Mine Act, this issue may not be considered by the Commission on appeal. The Secretary further contends that substantial evidence supports the judge’s finding that Oak Grove’s violation of section 75.334(d) resulted from its unwarrantable failure to comply with the standard.

            A.        Whether Oak Grove Preserved the Duplication Issue for Commission Review

            Section 113(d)(2)(A)(iii) of the Mine Act provides that “[e]xcept for good cause shown, no assignment of error by any party shall rely on any questions of fact or law upon which the administrative law judge had not been afforded an opportunity to pass.” 30 U.S.C. § 823(d)(2)(A)(iii); 29 C.F.R. 2700.70(d). The explicit statutory limitation on the scope of Commission review set forth in section 113(d)(2)(A)(iii) may be raised by an objecting party or, sua sponte, by the Commission itself, at any appropriate time during the Commission review process. E.g., Beech Fork Processing, Inc., 14 FMSHRC 1316, 1320 (Aug. 1992). In Beech Fork, the Commission ruled that the judge “had not been afforded an opportunity to pass” on the legal theory raised on review by petitioner. Id. at 1320. We stated that the petitioner’s “actions conflict with this basic principle, that parties in Mine Act cases must first present their evidence and advance their legal theories before the judge, and not for the first time on appeal.” Id. at 1321 (citation omitted).

            At the same time, the Commission has stated that the limitation on review in section 113(d)(2)(A)(iii) should not be viewed as a “procedural straitjacket.” Id. at 1320. The Commission has recognized that a matter urged on review may have been implicitly raised below or is so intertwined with something tried before the judge that it may properly be considered on appeal. See, e.g., id. at 1321; San Juan Coal Co., 29 FMSHRC 125, 130 (Mar. 2007), Freeman United Coal Mining Co., 6 FMSHRC 1577, 1580 (July 1984). An issue that is “sufficiently related” to one raised before the judge satisfies these criteria. BHP Copper, Inc., 21 FMSHRC 758, 762 (July 1999) (citing Keystone Coal Mining Corp., 16 FMSHRC 6, 10 n.7 (Jan. 1994)). If none of these criteria are met, an issue may be heard on appeal only upon a showing of “good cause.” 30 U.S.C. § 823(d)(2)(a)(iii). The Commission’s practice has been to resolve these “opportunity to pass” questions on a case-by-case basis. See, e.g., Ozark-Mahoning Co., 12 FMSHRC 376, 379 (Mar. 1990).

            The record reveals that Oak Grove did not present its theory that the enforcement actions were impermissibly duplicative in any of the pleadings filed with the judge. Oak Grove filed a Notice of Contest on January 8, 2010, seeking to vacate the order, but did not specifically state that the order should be vacated because it was duplicative of the citation. Instead, Oak Grove contended, in part, that no violation of the cited standard existed. On January 8, it also filed a motion to expedite and consolidate Docket Nos. SE 2010-349-R and SE 2010-350-R. Oak Grove did not, however, seek to consolidate Docket No. SE 2010-445, which contains the citation allegedly duplicated by Order No. 6698830.

            Moreover, Oak Grove failed to raise the duplication theory at the hearing. On the final day of the hearing, counsel for Oak Grove requested permission to present a closing argument (instead of filing briefs) after which the judge would issue a bench decision. Tr. III 192. In her closing argument, counsel stated, “I think that the meat of the matter is whether we have presented evidence that MSHA was arbitrary and capricious and whether this Court is comfortable with the alternatives that have been proposed.” Tr. III 204. Conspicuously absent from her argument was the term “duplicative” or any reference to a duplicative citation. Tr. III 212-18. While she did refer to Citation No. 6698645, it was only to argue that its issuance on December 30, 2009, “perpetuated a belief on the part of [the company] that was what was at issue.” Tr. III 213.

            Counsel for the Secretary interpreted this statement as a suggestion that Oak Grove was arguing that MSHA was “estopped” from issuing an additional order while the operator was attempting to abate Citation No. 6698645. Tr. III 220. Counsel for Oak Grove then clarified that she was “not arguing that the Government [is] [e]stopped. I’m arguing that [ ]certainly led to the Company believing one thing when it was another. That goes to the Unwarrantable Failure.” Tr. III. 220-21. Thus, it appears that counsel for Oak Grove informed the judge that its position was that the citation was only relevant to the issue of unwarrantable failure.

            The judge gave no indication at the hearing that he was aware of Oak Grove’s theory that the order and the citation were duplicative. After listening to each of the counsel’s opening arguments, he did state that in summary it appeared that the order involved basically the same issues as those raised in the citation. Tr. I 16. Counsel for Oak Grove, however, did not address the judge’s statement and did not raise the issue of whether the order and the citation were duplicative. Oral Arg. Tr. 50-52.

            This is not a situation where Oak Grove’s duplication theory was implicitly raised or was “so intertwined with something tried before the judge that it may properly be considered on appeal.” See Beech Fork, 14 FMSHRC at 1321; San Juan Coal Co., 29 FMSHRC at 130. Before the judge, Oak Grove presented evidence and elicited testimony regarding issues and legal theories that are entirely separate from the duplication theory that it attempts to raise before the Commission. Now, after failing to persuade the judge that MSHA’s refusal to accept its alternative ventilation plan to abate the order was an arbitrary or capricious decision, Oak Grove impermissibly seeks to shift legal theories on appeal.

              Finally, Oak Grove requests that the Commission find that “good cause” exists to hear the duplication issue on appeal. However, we conclude that Oak Grove has failed to demonstrate “good cause.” The duplication issue is not properly before the Commission because of the litigation strategy pursued by the operator, not for any other reason.

            In summary, we conclude that Oak Grove failed to present its theory that the two enforcement actions are duplicative for the judge’s consideration and therefore has not preserved it for our review.

            B.        Whether the Judge Correctly Concluded that the Violation Resulted from an Unwarrantable Failure to Comply

            The designation of a violation as resulting from “an unwarrantable failure to comply” with a mandatory standard is authorized by section 104(d) of the Act and reflects 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, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).

            The Commission has 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. Aggravating 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 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); 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). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consolidation Coal, 22 FMSHRC at 353.

                        1.         Extensiveness, Length of Time, and Degree of Danger

             Oak Grove does not dispute the judge’s findings regarding three of the unwarrantable failure factors that judges are to consider: (1) the extent of the violation; (2) the length of time the violation existed; and (3) the degree of danger that the violation posed. Moreover, our review of the record indicates these findings are supported by substantial evidence.

            In terms of the extensiveness of the violation, 11 of the MPLs were not being examined by the operator. 32 FMSHRC at 177. Furthermore, a considerable portion of the southern bleeder entries, as well as the critical portions of the headgate entries, were inaccessible. Id. at 179.  

            Regarding the length of time, the judge found that Oak Grove “knew that no [complete] weekly examination of the bleeder entries had been done since December 14, and that conditions had deteriorated since that time.” Id. at 177, 179.

            The judge determined that the gravity of the condition was “high,” because the operation of a longwall with an ineffective bleeder system posed a “serious risk of serious injuries to miners.” Id. at 178. The judge noted that this mine liberates a substantial amount of methane and therefore that methane may have been accumulating in the gob. Id. The judge believed that if the methane were pushed to the working face, where there are numerous ignition sources, an explosion could have occurred. Id. The judge also noted that Oak Grove had in fact resumed production on the longwall from January 4 through January 6. Id. at 179. During oral argument before the judge, Oak Grove did not dispute that the violative condition was “significant and substantial.” Tr. III 212-18, 220-21.

                        2.         Knowledge of the Violation and Notice of Need for Greater Compliance

            The judge found that the “violation was extensive, open, obvious, and was known by the operator.” 32 FMSHRC at 177. He noted that Oak Grove management informed the inspectors, on January 6, that roof falls and water accumulations were preventing a complete examination of the MPLs. Id. at 178. The judge concluded that Oak Grove “knew that no weekly examination of the bleeder entries had been done since December 14, and that the conditions had deteriorated since that time, such that a considerable portion of the south bleeder entries, as well as critical portions of the 11-East headgate entries, were inaccessible. Yet it resumed production of the longwall.” Id. at 179.

            The judge concluded that the obvious conditions in the bleeder system, considered with the incomplete pre-shift examinations signed by mine management and the severe restriction in airflow, should have put the operator on notice that it was not in compliance with the requirements of section 75.334(d). Id. at 177-79. Specifically, the judge found that high level Oak Grove officials had signed off on reports of incomplete examinations recorded in the weekly examination book and had candidly informed the inspector that the MPLs were not being examined. Id. at 177-78. Additionally, the judge noted that “ [r]esistance to air flow through the bleeder system had increased by 50% over the past three weeks, indicating significant changes in the bleeder system.” Id. at 178. These findings by the judge clearly establish that Oak Grove officials were aware of serious compliance problems.

            The judge did conclude that the issuance of the December 30 citation and the subsequent extensions of the abatement period were “somewhat of a mixed signal from MSHA.” Id. at 179. However, on January 5, Oak Grove was warned by MSHA that it should not be operating the longwall if it could not establish the effectiveness of its bleeder system. Id. at 171 n.4; Tr. II 39-40; Tr. III 93-94. Moreover, Oak Grove’s awareness of the serious problems it faced in the bleeder system otherwise put it on notice that it was not in compliance with the requirements of section 75.334(d). Consequently, the circumstances surrounding the citation do not detract from the judge’s finding of an unwarrantable failure.

                        3.         Abatement

            The judge concluded that Oak Grove had made no apparent effort to propose an alternative method of evaluating the bleeder (prior to the issuance of the order), despite resuming production. 32 FMSHRC at 177.

            Oak Grove does not dispute the judge’s finding that it resumed production before proposing an alternative method of evaluation. Instead, the operator alleges that the judge failed “to consider the measures Oak Grove undertook to remedy the impassability of the bleeder system” as an effort to abate the violative condition. OG Br. at 23-24. For instance, the operator alleges that it was able to activate two extra submersible pumps underground, increasing the pumping capacity in the bleeder entries. Id. at 24 (Larry Bennett, chief engineer for Oak Grove, testified that on “[t]he evening of January 6th, we powered up two 13 horsepower submersible pumps underground.” Tr. II 308, III 8 (emphasis added)).

             The Commission has held that “[t]he focus on the operator’s abatement efforts is on those efforts made prior to the citation or order.” IO Coal Co., 31 FMSHRC 1346, 1356 (Dec. 2009) (citations omitted)(emphasis added). The order in question was issued on January 6 at 2:00 p.m. Gov’t Ex. 1. Bennett clearly testified that the pumps were not activated until that evening, after the issuance of the order. Therefore, activation of the pumps should not be considered as mitigating evidence, and the judge correctly excluded the activation of the extra pumps in his analysis.

            Furthermore, the judge’s decision reflects that he did acknowledge Oak Grove’s efforts to abate the conditions that were performed prior to the issuance of the order. The judge noted that “[o]n or about January 1, [Oak Grove] initiated efforts to drill bore holes down to the bleeder entries near the rear of the 11-East panel to provide electrical power for more powerful electric pumps, communication lines, and additional compressed air capacity.” 32 FMSHRC at 170-71. This factual finding was not expressly considered or weighed by the judge in his analysis of unwarrantable failure. Nevertheless, it is clear that the judge believed that Oak Grove’s efforts to abate the conditions in the bleeder system were insufficient. In his bench decision, he concluded that “there was no successful effort to pump the water out of the bleeder in order to travel to and get to those Evaluation Points.” Tr. III 229.

            Although the judge did not expressly weigh Oak Grove’s abatement efforts as mitigating evidence against a finding of an unwarrantable failure in his written decision, his oversight is inconsequential. The bench decision supplements the written decision and demonstrates that the judge considered Oak Grove’s efforts to abate the conditions in the bleeder system.

                        4.          Other Possible Mitigating Circumstances

            Oak Grove contends that the judge failed to consider its reasonable belief that the bleeder system was functioning. The Commission has held that if an operator acted on the good-faith belief that its cited conduct was actually in compliance with applicable law, and that belief was objectively reasonable under the circumstances, the operator’s conduct will not be considered to be the result of an unwarrantable failure when it is later determined that the operator’s belief was in error. IO Coal, 31 FMSHRC at 1357-58 (citing Kelly’s Creek Res., Inc., 19 FMSHRC 457, 463 (Mar. 1997); Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615-16 (Aug. 1994)).

            Oak Grove alleges that it determined that the system was functioning after taking measurements and evaluating the data generated at the No. 6 fan. The operator contends that it knew the quantity of air traveling the headgate side, the quantity of air traveling in the tail gate side through the East bleeders, and the quantity of air exiting the mine at the fan. Additionally, it asserts that because the longwall is ventilated by a separate split of air, the hazards in the bleeder system would not affect its safe operation.

            We find Oak Grove’s arguments to be unpersuasive. Although Oak Grove was required to take air measurements at specific locations identified in the mine ventilation plan, Oak Grove was not able to access those locations because of water accumulations. Management officials acknowledged that the required examination process could not be performed and that the operator had not completed an examination since December 14. Although Oak Grove could not be certain that the bleeder system was working effectively, it nevertheless failed to seal the worked-out area as it was required to do if the bleeder examinations or an alternative process could not determine if the bleeders were functioning effectively. Management officials also knew, as demonstrated by their extensive pursuit of a modification of the ventilation plan after the issuance of the order, that any change to the ventilation plan required approval by MSHA. Oak Grove disregarded the requirements of section 75.364(a)(2)(iii), as well as the mine’s ventilation plan, and did not perform a required examination for several weeks before the issuance of the order. During this period, the pressure differential at the fan increased by 50%, indicating that there was significant additional resistance to airflow in the bleeder system. 32 FMSHRC at 171; Gov’t Ex. 2. Accordingly, we conclude that an objectively reasonable person would not have held the good-faith belief that the bleeder system was functioning as required.

             Oak Grove also contends that it reasonably believed that it was permissible to operate the longwall in the East bleeder system during the abatement period established in the section 104(a) citation issued on December 30. Oak Grove relies on the issuance of the less serious section 104(a) citation and the two subsequent extensions of the abatement period as implicit permission from MSHA to engage in mining operations while the underlying conditions were being addressed.

            We again find Oak Grove’s position to be unpersuasive. First, because Oak Grove could not examine 11 of the MPLs as it was required to do, Oak Grove management did not know if the bleeder system was functional when it resumed production with the longwall. Second, when the citation was issued, the longwall was not in operation. Tr. III 136-37. Likewise, on the occasions that MSHA issued an extension of the abatement period, Oak Grove was not operating the longwall on the 11 East panel. OG Ex. 1; Gov’t Ex. 10; Tr. III 122, 136-37. Oak Grove did not inform MSHA when it resumed longwall mining on the 11 East panel during the abatement period. Thus, Oak Grove’s argument that MSHA implicitly permitted operation of the longwall within the abatement period is without foundation.

            Oak Grove further contends that the result of its telephone conversations with MSHA on January 5, 2010 was that it “was allowed to continue operating the longwall.” OG Br. at 4, 22. At oral argument, Oak Grove claimed that January 5 conversations with MSHA caused “a lot of confusion” and even constituted “a bit of an ambush.” Oral Arg. Tr. at 24. However, the fact is that Oak Grove began operating the longwall on January 4, and produced coal for three shifts, prior to the allegedly confusing or misleading telephone conversations with MSHA. Gov’t Ex. 10; Oral Arg. Tr. at 60-61. Oak Grove’s conduct in starting up the longwall undermines the legitimacy of its argument.

            The judge weighed both the issuance of the non-S&S citation on December 30 and the subsequent decision to extend the abatement period of that citation together with the other unwarrantable failure factors and explicitly found that “[t]he issuance of the citation, and the abatement period do not excuse Oak Grove’s conduct.” 32 FMSHRC at 179. Thus, the judge concluded that it was not objectively reasonable for Oak Grove to run the longwall in a gassy mine with a history of explosions without knowing if the bleeder system was functioning.

            Substantial evidence supports the judge’s factual findings that the violation resulted from an unwarrantable failure to comply.

III.

Conclusion

            In summary, we conclude that the judge did not have the opportunity to pass on Oak Grove’s theory that Order No. 6698830 was impermissibly duplicative of a previously issued citation. Therefore, in accordance with section 113(d)(2)(A)(iii) of the Mine Act, we decline to reach the merits of this argument. We also conclude that the judge’s determination that Oak Grove’s violation of section 75.334(d) was attributable to an unwarrantable failure to comply with the standard is in accordance with law and supported by substantial evidence. Accordingly, we affirm the judge’s decision. 

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Chairman

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

            ____________________________________

                                                                                    Robert F. Cohen, Jr., Commissioner

                                                                                    ____________________________________

                                                                                    Patrick K. Nakamura, Commissioner

Distribution:

Laura E. Beverage, Esq.

Jackson Kelly PLLC

1099 18^th Street, Suite 2150

Denver, CO 80202

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Jerald S. Feingold, 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 Michael Zielinski

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20001-2021