<DOC>
[DOCID: f:amax.wais]
AMAX COAL COMPANY
September 29, 1997
LAKE 95-267
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
September 29, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 95-267
:
AMAX COAL COMPANY :
BEFORE: Jordan, Chairman; Marks, Riley and Verheggen,
Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act"), raises the issue of whether the
conceded failure by AMAX Coal Company ("AMAX") to extend a line
curtain to within 40 feet of a working face, a violation of its
ventilation plan and thus of 30 C.F.R. � 75.370(a)(1),[1] was the
result of the AMAX's unwarrantable failure.[2] Administrative
Law Judge Arthur Amchan found the violation unwarrantable. 17
FMSHRC 1747 (October 1995) (ALJ). The Commission granted AMAX's
petition for discretionary review challenging that determination.
For the reasons that follow, the judge's decision stands as if
affirmed.
**FOOTNOTES**
[1]: Section 75.370(a)(1) provides in part that "[t]he
operator shall develop and follow a ventilation plan approved by
the district manager." AMAX violated the provision of its
ventilation plan which stated that "[w]hen mining on advance
utilizing flooded bed scrubber miners and blowing canvas, line
curtain will be maintained to within 40 feet of the working face
with a minimum airflow of 8,000 cfm behind the curtain." G. Ex.
3; Tr. 26-27.
[2]: The unwarrantable failure terminology is taken from
section 104(d) of the Mine Act, 30 U.S.C. � 814(d), and refers to
more serious conduct by an operator in connection with a
violation.
I.
Factual and Procedural Background
On the morning of November 8, 1994, MSHA ventilation
specialist Robert M. Montgomery was inspecting an area of the 2
West/Main West-South ("2W/MWS") section of AMAX's Wabash Mine in
eastern Illinois. 17 FMSHRC at 1747; Tr. 14, 23. That day, AMAX
section foreman Kyle Wethington was in the No. 6 entry of the
section prior to the commencement of mining in that entry. 17
FMSHRC at 1749. Wethington, along with William Rowe and Tommy
Stephens, the two miners who were to mine in that entry with the
remote control continuous miner, had cleaned up gob in the entry
before beginning to cut coal. Id.; Tr. 109, 112-13. At around
the time the miners began cutting the coal, Wethington left the
No. 6 entry to examine some stoppings that had been blown at the
head of the belt, a condition to which Wethington was alerted by
another MSHA inspector present at the mine that day. 17 FMSHRC
at 1749; Tr. 110-11, 113-14. At that time, the line curtain in
the entry was within 40 feet of the face, consistent with the
Wabash Mine's ventilation plan requirement for working faces. 17
FMSHRC at 1749; Tr. 112-13.
In the 40 to 45 minutes that Wethington was away from the
No. 6 entry, Rowe had completed three cuts into the coal, and was
finishing the fourth and final cut when Wethington returned. 17
FMSHRC at 1749; Tr. 100, 106, 114-15, 202, 224. In mining the
first and second cuts, the continuous miner was advanced 20 feet
on the right side of the face, then 20 feet on the left. 17
FMSHRC at 1749; Tr. 193. Thereafter the mining machine was moved
back to the right to advance another 15 to 20 feet, at which time
the line curtain should have been extended to stay within 40
feet of the face. 17 FMSHRC at 1749; Tr. 90, 194. However, Rowe
and Stevens admitted that the curtain was never moved from its
original position. 17 FMSHRC at 1749; Tr. 200, 203, 224. Thus,
the third cut on the right and the fourth and final cut on the
left took place while AMAX was in violation of its ventilation
plan. 17 FMSHRC at 1749.
Upon his return to the No. 6 entry, Wethington instructed
Stevens regarding the miners' next task, which was to cut coal in
the No. 5 entry. Id. at 1750. Meanwhile, Inspector Montgomery,
who was inspecting the working faces of that section of the mine,
came upon a ram car waiting to enter the No. 6 entry as soon as
another ram car, operated by Robert Scott, left the entry. Id.
at 1747-48; Tr. 23. When the waiting ram car entered the No. 6
entry, Inspector Montgomery followed it, and saw foreman
Wethington walking out of the entry. 17 FMSHRC at 1748. After
Wethington noticed the inspector heading into the No. 6 entry he
turned around. Id.; Tr. 23-24, 40-41. Wethington then walked
back to the working face and ordered Rowe to shut down the
continuous miner and leave to obtain additional material to
extend the line curtain 20 feet. 17 FMSHRC at 1748; Tr. 116-18,
127, 198. Wethington also instructed Stevens to get a ladder so
that additional curtain material could be hung. Tr. 216.
Once the face and the line curtain were in his view in the
No. 6 entry, Inspector Montgomery immediately noticed that the
line curtain was much farther away from the face than it should
have been. 17 FMSHRC at 1748; Tr. 24. Bruce Thompson, an AMAX
section supervisor who was accompanying Inspector Montgomery,
also recognized that the curtain was not in the proper position.
Tr. 172; 182-83. Inspector Montgomery measured the distance from
the end of the unextended line curtain to the tail of the
continuous mining machine at between 20 and 25 feet. 17 FMSHRC
at 1748; Tr. 24. As the continuous miner was approximately 35
feet long, that meant that the end of the curtain was 55 to 60
feet from the face, rather than within 40 feet, as required by
AMAX's ventilation plan. 17 FMSHRC at 1748; Tr. 26-28, 81-82,
220.
Inspector Montgomery cited AMAX for a significant and
substantial ("S&S")[3] violation of 30 C.F.R. � 75.370(a)(1) due
to an unwarrantable failure to comply with the requirements of
its ventilation plan. 17 FMSHRC at 1748. The unwarrantable
failure designation was based on Inspector Montgomery's belief
that Wethington was present for at least one load of coal being
loaded onto a ram car while the line curtain out of place, and
that, until he saw Inspector Montgomery, Wethington did not
intend to correct the problem. Tr. 24, 40-41, 73.
AMAX conceded that it violated the Mine Act, but contested
the S&S and unwarrantable failure designations. 17 FMSHRC at
1748. The judge found the violation to be non-S&S. Id. at 1753.
On the unwarrantable failure issue, the judge credited the
account of ram car operator Scott, who testified foreman
Wethington was in the No. 6 entry for approximately five minutes,
over that of Wethington, who claimed that he was in the No. 6
entry for only one minute before starting to leave again. Id. at
1750 & n.2; Tr. at 116. The judge also found the violation to be
an obvious one, on the basis of the testimony of AMAX section
supervisor Thompson that, when he accompanied Inspector
Montgomery into the No. 6 entry, he immediately recognized that
the location of the line curtain was in violation of the Wabash
Mine ventilation plan. Id. at 1751. In addition, the judge
inferred that Wethington's "about-face" upon seeing Inspector
Montgomery was precipitated by (1) Wethington's knowledge that
the line curtain's location violated the ventilation plan, and
(2) Wethington's belief that Inspector Montgomery would
immediately notice it. Id. Concluding that Wethington was aware
that the line curtain was not close enough to the face before he
saw Inspector Montgomery, the judge held that "[s]ince Wethington
knew that the violation existed and ignored it, his conduct is
sufficiently aggravated to constitute an `unwarrantable
failure.'" Id.[4]
II.
Disposition
AMAX claims that it was improper for the judge to credit the
testimony of ram car driver Scott over foreman Wethington
regarding the amount of time that Wethington was in the No. 6
entry, in light of Scott's bias against AMAX and the consistency
of the testimony of Wethington and miner Stevens. A. Br. at 13 &
n.3. AMAX also contends that the judge's inference that
Wethington knew of the violation at the time he saw Inspector
Montgomery was neither reasonable nor sufficiently supported by
the grounds cited. A. Br. at 12-17. AMAX states that
application of the proper criteria and relevant precedent leads
to the conclusion that the conduct at issue was not unwarrantable
(A. Br. at 6-10), and that in reaching the opposite conclusion,
the judge erred by applying an improper "should have known" test,
relying on knowledge of the existence of a condition as the sole
basis for his conclusion that aggravated conduct had occurred,
and failing to evaluate all of the appropriate criteria. A. Br.
at 17-20. The Secretary responds that the judge's finding of
unwarrantable failure is supported by substantial evidence that
Wethington's conduct was intentional, in that Wethington knew of
the violative condition and intentionally ignored it until he
encountered Inspector Montgomery. S. Br. at 6-10. According to
the Secretary, when misconduct is found to have been intentional,
it is immaterial that the judge failed to consider other factors
which also may be relevant to unwarrantable failure
determinations. S. Br. at 10-11.
Chairman Jordan and Commissioner Marks would affirm the
judge's decision. Commissioners Riley and Verheggen would
reverse the judge's decision. Under Pennsylvania Electric Co.,
12 FMSHRC 1562, 1563-65 (August 1990), aff'd on other grounds,
969 F.2d 1501 (3d Cir. 1992), the effect of the split decision is
to allow the judge's decision to stand as if affirmed.
III.
Separate Opinions of the Commissioners
Chairman Jordan and Commissioner Marks, in favor of
affirming the decision of the administrative law judge:
For the reasons that follow, we conclude that foreman
Wethington's conduct was aggravated and therefore the judge
properly determined that the violation was unwarrantable.
The judge held that "[s]ince Wethington knew that the
violation existed and ignored it, his conduct is sufficiently
aggravated to constitute an `unwarrantable failure.'" 17 FMSHRC
at 1751 (citing Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011
(December 1987)). In order to determine the correctness of the
judge's ruling, we must address the following two issues. First,
is there substantial evidence in the record to support the
determination that Wethington was aware of the violation and yet
intentionally chose to ignore it? Second, does a foreman who
intentionally ignores a violation engage in "aggravated conduct,"
even though the violation is expected to be of short duration and
poses low risk?[5]
In resolving the first question, we conclude that
substantial evidence supports the judge's conclusion that
Wethington was aware of the violative condition in the subject
No. 6 entry, and that he intentionally failed to order the
advancement of the line curtain. The judge based his
determination on three factors. First he found that Wethington
was in the No. 6 entry for five minutes, instead of for only the
one minute alleged in Wethington's version of events. In making
this finding, the judge credited ram car driver Scott's testimony
over Wethington's testimony. 17 FMSHRC at 1750 n.2. He found
Scott to be the more disinterested witness of the two and noted
that Scott appeared to have a recollection of the events equal or
superior to that of Wethington. Id. Amax urges the Commission
to overturn this credibility determination, contending that
Wethington's testimony on this point was supported by the
testimony of Stevens (a miner helper present in the entry), and
suggesting that Scott's testimony established that he had a
reason for bias against AMAX. A. Br. at 13 n.3.
We have examined Stevens' testimony and do not agree that it
is more consistent with Wethington's testimony than it is with
Scott's testimony regarding the length of time Wethington was
present in the No. 6 entry.[6] We have also examined the
testimony which Amax suggests demonstrates Scott's bias and
conclude that this testimony is also insufficient to disturb the
judge's credibility resolution. It is well established that "a
judge's credibility determinations are not to be overturned
lightly and are entitled to great weight." In re: Contests of
Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878
(November 1995), appeal docketed sub nom., Secretary of Labor v.
Keystone Coal Mining Corp., No. 95-1619 (D.C. Cir. Dec. 28,
1995).
Our review of the testimony of both Scott and Wethington
confirms the judge's conclusion that Scott's recollection of the
events was as good as, if not better than, that of Wethington.
Scott testified that he saw Wethington in the No. 6 entry on
consecutive ram car trips Scott made that were approximately five
minutes apart. 17 FMSHRC at 1750 n.2; Tr. 95, 97-98, 100, 106,
116. Thus, we conclude that the judge did not abuse his
discretion in crediting this testimony, and that substantial
evidence supports the judge's finding that Wethington was in the
No. 6 entry for approximately five minutes.
The second factor supporting the judge's inference of
Wethington's knowledge was the obvious nature of the violation.
Although Wethington maintained that he did not notice the
position of the line curtain, Amax section supervisor Armstrong
testified that the violative condition was immediately obvious
once the working face was in view. 17 FMSHRC at 1751.
The third and by far the most compelling basis supporting
the inference that Wethington had prior knowledge of the
violation was Wethington's conduct when he saw the inspector
approaching. At that time he made an "about-face," returned to
the subject entry, and immediately directed the crew to advance
the line curtain as required by law. Id. at 1750.
Amax takes issue with the inference the judge drew from
Wethington's "about-face," and his immediate decision to advance
the line curtain once Wethington realized that Inspector
Montgomery was about to inspect the No. 6 entry. Although
Wethington testified that he did not notice that the line curtain
was too far back when he was first in the No. 6 entry, the judge
concluded Wethington was unlikely to react in such a rapid
fashion if he was not previously aware of any violations there.
Id. at 1750-51.
In considering the evidentiary effect of inferences, the
Commission has held that judges may draw inferences from record
facts so long as those inferences are "inherently reasonable and
there [exists] a rational connection between the evidentiary
facts and the ultimate fact inferred." Garden Creek Pocahontas,
11 FMSHRC 2148, 2153 (November 1989). While it is possible that
other inferences could have been drawn from Wethington's actions,
it is for the trier of fact to decide between reasonable
inferences, and it is not necessary that the inference drawn by
the judge be more likely to be correct than other permissible
inferences. See generally 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure � 2528 (2d ed. 1995).
Accordingly, we conclude that the judge's inference was
reasonable and should not be disturbed by the Commission.
Based on the finding that Wethington was in the No. 6 entry
for five minutes, Armstrong's testimony regarding the obviousness
of the violative condition, and the inference the judge drew from
Wethington's "about-face," the judge concluded that Wethington
knew that the line curtain had not been extended as the
ventilation plan required. 17 FMSHRC at 1750-51. We agree and
conclude that the facts as found by the judge provide substantial
evidence that Wethington knew of the violative condition.
The remaining issue is whether Wethington's conduct was
aggravated and therefore unwarrantable. For the following
reasons we affirm the judge's finding of unwarrantability.
In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the
Commission explained that unwarrantable failure should not be
equated with ordinary negligence. It requires "aggravated"
conduct resulting from more than "inadvertence,"
"thoughtlessness" or "inattention." Id. at 2001. In Emery the
Commission referred to unwarrantable failure in terms such as
"indifference," "willful intent," "serious lack of reasonable
care" and "knowing violation." Id. at 2003.
Our colleagues claim that under Virginia Crews Coal Co., 15
FMSHRC 2103 (October 1993), a foreman's knowledge of a violation
is insufficient to establish aggravated conduct. Slip op. at 10.
They contend further that the limited duration and low risk posed
by the line curtain violation preclude a finding of aggravated
conduct in this case. Id. at 10-11. We disagree. Unlike our
colleagues, we do not find Virginia Crews to be dispositive of
this issue given the vast difference in circumstances presented
in this case.
In Virginia Crews, the inspector designated a roof control
violation as unwarrantable even though there was no direct
evidence that anyone, other than the preshift examiner, had
observed the violation. 15 FMSHRC at 2105. Moreover, the
foreman had received the preshift examiner's report only an hour
and a half before the inspector's visit, and "[n]o activity
occurred in the cited area during that period." Id. at 2106.
Under these circumstances, the Commission declined to uphold the
unwarrantable failure designation because "there was no credible
evidence to establish that [Virginia Crews] deliberately and
consciously failed to act or engaged in conduct which one may
reasonably conclude was aggravated." Id. at 2107 (emphasis
added). The short time between the examiner's report and the
inspector's visit, as well as the lack of mining activity during
that time, precluded the foreman's behavior from being
considered "aggravated conduct."[7]
In stark contrast to Virginia Crews, the judge in this case
found that credible evidence established that Amax, through its
foreman Wethington, not only knew of the existence of the
misplaced curtain but also decided to ignore the violation and
let mining continue without correcting the violation. Wethington
claimed his failure to order the line curtain moved resulted from
inadvertence or inattention, but this contention was rejected by
the judge, who concluded that Wethington was aware of the
violative condition and chose to ignore it until he saw the MSHA
inspector. Wethington's behavior thus can be accurately
characterized as "intentional misconduct," which the Commission
has concluded "is a form of unwarrantable failure for purposes of
the Mine Act." Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
194 (February 1991).
The Commission's precedent on such intentional misconduct,
regardless of the violation's duration or risk, is clear and
consistent. In Youghiogheny, the Commission upheld an
unwarrantable failure determination because the foreman
deliberately violated the roof control plan, even though the
Commission also concluded that the violation was not S&S, as it
posed minimal risk. 9 FMSHRC at 2011, 2013. In New Warwick
Mining Co., 18 FMSHRC 1365 (August 1996), the Commission
concluded that a violation resulting from deliberate action was
unwarrantable, notwithstanding that the inspector had not even
designated the violation as S&S. In our decision, we relied upon
neither the duration of the violation nor the risk it posed.[8]
Id. at 1370-71. See also Enlow Fork Mining Co., 19 FMSHRC 5, 11-
12, 16-17 (January 1997); New Warwick Mining Co., 18 FMSHRC 1568,
1572-74 (September 1996) (holding in both cases that
accumulations violations were unwarrantable, although not S&S).
Moreover, in some cases where a violation has been found S&S, the
Commission has based its unwarrantable failure determination on
the knowing, indifferent or willful conduct of the supervisory
agent, rather than on the gravity of the violation. See Ambrosia
Coal & Construction Co., 18 FMSHRC 1552, 1562 (September 1996);
S&H Mining, Inc. 15 FMSHRC 956, 960 (June 1993).[9]
Accordingly, our colleagues' opinion, focusing as it does on
the limited duration and minimal danger posed by the line curtain
violation,[10] not only is inconsistent with precedent but also
troubling because it conceivably could be read as excusing a
foreman's decision to ignore a violation unless the condition
poses a significant risk to miners. Such an approach can have
disastrous consequences because it ignores the dangerous
environment created when management appears to condone violative
conduct by employees. Wethington's failure to make any reference
to the line curtain as he instructed Stevens on the next task
could be viewed by the employees as tacit approval to cut
corners.
Miners who decide to ignore a safety requirement may
miscalculate the risk involved. Although the area of the mine
involved in this proceeding had not experienced methane in any
significant amount, methane is unpredictable. The mine itself
was a gassy mine subject to 5-day spot checks by MSHA. Indeed,
eight or nine months prior to the instant citation, Amax had to
discontinue mining in another area of the mine because methane
kept exceeding the 1% level. 17 FMSHRC at 1752. These facts
underscore the point that these miners might not be as lucky the
next time they either deliberately or inadvertently fail to
comply with a ventilation requirement.
For the foregoing reasons, we conclude that the judge's
determination that the violation was unwarrantable should be
affirmed.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
**FOOTNOTES**
[3]: The S&S terminology is taken from section 104(d) of
the Mine Act, 30 U.S.C.
� 814(d), which distinguishes as more serious in nature any
violation that "could significantly and substantially contribute
to the cause and effect of a . . . mine safety or health hazard."
[4]: After trial but before the issuance of the judge's
decision, a civil penalty proceeding commenced against
Wethington under section 110(c) of the Mine Act. Over
Wethington's objections, the same judge granted the Secretary's
motion to stay that proceeding until the Commission ruled on the
instant appeal. 18 FMSHRC 467 (March 1996) (ALJ). In that
decision, the judge held that he would not permit Wethington to
relitigate in the section 110(c) proceeding the issue of his
knowledge of the violation. Id. at 468-70.
[5]: The ALJ determined the violation to be non-S&S and the
Secretary did not appeal that ruling.
[6]: Contrary to AMAX's claim (A. Br. at 13 n.3), Stevens
did not testify that Wethington was in the entry for only the
time it took to load one or two ram cars. Rather, in answering a
question regarding how long Wethington was "over there," Stevens
stated for "one or two" ram cars. Tr. 215. From the context of
the questioning, Stevens testimony more likely referred to the
amount of time Wethington spent speaking to Stevens than the
amount of time Wethington was in the No. 6 entry. Neither
Stevens nor Rowe testified that either had noticed Wethington
returning to the No. 6 entry or when he began to again leave.
[7]: It is worth noting, therefore, that the statement in
Virginia Crews regarding the insufficiency of a "knew or should
have known" test is actually dicta since there was no evidence to
show that the foreman whose conduct was under review either knew
or should have known about the violation prior to receiving the
preshift examiner's report. In Virginia Crews the Commission was
simply restating the fundamental principle of Emery that "a
breach of a duty to know is not necessarily an unwarrantable
failure." Id. at 2107. Indeed, Virginia Crews generally has
been cited for the proposition that a "should have known" or "had
reason to know" standard is insufficient to prove
unwarrantability. See Peabody Coal Co., 18 FMSHRC 494, 498 n. 7
(April 1996); Wyoming Fuels Co., 16 FMSHRC 1618, 1628 (August
1994); Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1614 (August
1994).
[8]: The case law thus establishes that while the
Commission has identified various factors in determining
unwarrantability - such as the extent of a violative condition,
the length of time that it existed, whether the violation was
obvious, and whether the operator had been placed on notice that
greater efforts are necessary for compliance - the Commission
only uses those factors when the operator's cognizance of the
violative condition remains at issue. Where, as here, that issue
has been decided, the factors are irrelevant in determining
unwarrantability.
[9]: It bears noting that section 104(d) of the Mine Act
predicates the issuance of withdrawal orders upon successive
unwarrantable failure violations, regardless of whether those
violations are also deemed to be significant and substantial.
See, e.g., Int'l Union, United Mine Workers of America v. Kleppe,
532 F.2d 1403, 1407 (D.C. Cir. 1976).
[10]: Relying on a stipulation by the Secretary at the
outset of the hearing, our colleagues view Amax's "good faith in
quickly abating the violation" as an additional factor
"militating against an unwarrantable failure finding." Slip. op.
at 11. In light of the judge's subsequent finding that
Wethington commenced abatement efforts only when faced with
imminent discovery by the inspector, we cannot consider those
efforts as militating against an unwarrantable failure finding.
See Enlow Fork Mining Co., 19 FMSHRC 5, 17 (January 1997)
("[p]ost-citation efforts are not relevant to the determination
whether the operator has engaged in aggravated conduct in
allowing the violative condition to occur").
Commissioners Riley and Verheggen, in favor of reversing the
decision of the administrative law judge:
In Emery Mining Corp., 9 FMSHRC 1997 (December 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 2002-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991) ("R&P"); see
also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995)
(approving Commission's unwarrantable failure test). The
Commission examines various factors in determining whether a violation
is unwarrantable, including the extent of the violative condition,
the length of time that it existed, whether the violation was obvious,
whether the operator has been placed on notice that greater
efforts are necessary for compliance, and the operator's
efforts in abating the violative condition. Mullins & Sons Coal
Co., 16 FMSHRC 192, 195 (February 1994); Peabody Coal Co., 14 FMSHRC
1258, 1261 (August 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709
(June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984). The
Commission also takes into account the degree of danger posed by a
violation and whether supervisory personnel were present when the
violation took place. Midwest Material Co., 19 FMSHRC 30, 34-35
(January 1997) (citing cases).
In finding unwarrantable failure, the judge simply held that
"[s]ince Wethington knew that the violation existed and ignored it,
his conduct is sufficiently aggravated to constitute an
`unwarrantable failure.'" 17 FMSHRC at 1751 (citing Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2107, 2011 (December 1987)). Regardless of
whether or not substantial evidence supports the judge's factual
finding regarding Wethington's state of mind, we believe that,
because the judge took only Wethington's knowledge of the
violation into account in finding unwarrantable failure, he failed to
apply the proper test for unwarrantable failure and thus
committed reversible error.
In Virginia Crews Coal Co., 15 FMSHRC 2103 (October 1993),
the Commission held that knowledge of a violation, by itself, is
insufficient to establish aggravated conduct. In that case,
the Commission explicitly rejected the notion that actual or
constructive knowledge alone establishes unwarrantable failure,
since such an approach would make unwarrantable failure
indistinguishable from ordinary negligence. Id. at 2107. As the
Commission has long regarded unwarrantable failure as something
more than ordinary negligence (see Emery Mining Corp., 9 FMSHRC at
2001), the judge's decision cannot be upheld.[11]
Consideration of the following relevant factors leads us to
conclude that the record supports only one determination: that
AMAX's violation of its ventilation plan was not the result of AMAX's
unwarrantable failure. First, it is not disputed that AMAX was in
violation of its ventilation plan for a relatively short period of
time. Approximately 15 minutes elapsed between the time the line
curtain should have been extended and the time the continuous miner
was shut down so that it could be extended. Tr. 201. Even the judge
described the violation as one of "rather short duration" (17 FMSHRC
at 1753), though he failed to account for it as a factor in his
unwarrantable failure analysis.
The judge's factual findings in favor of the Secretary's
position also support that characterization. The judge found
that Wethington was present for no more than five minutes of the time
period in which the curtain was out of place. Id. at 1750 n.2.
Moreover, as it is also clear that AMAX's operations in the No. 6
entry would have been complete in a matter of minutes (Id. at 1749; Tr.
100, 106, 114-15, 202, 224), it would not be fair to assume that
only the presence of Inspector Montgomery prevented the violative
condition from continuing for a much longer period of time.
Another factor militating against an unwarrantable failure
finding is AMAX's good faith in quickly abating the violation.
That AMAX demonstrated good faith in abating the citation was
stipulated by the Secretary at trial. Tr. 7. The Commission has
been reluctant to discount stipulations entered into by
litigants. See Mettiki Coal Corp., 13 FMSHRC 760, 772 (May 1991).
Moreover, while post-citation abatement efforts are generally not
relevant to a finding of unwarrantable failure, in this case
AMAX started abating the violation before the citation was issued. 17
FMSHRC at 1748. In addition, the Secretary has pointed to no
evidence of previous violations of this type by AMAX. While at trial
the Secretary submitted a printout of previous citations at the Wabash
Mine (G. Ex. 1), she did not state whether any of the violations for
which AMAX was cited involved a ventilation plan provision, much
less a line curtain placement violation.
The final factor that persuades us that an unwarrantable
failure finding is uncalled for is the low degree of danger posed by
the violation under the circumstances. The judge held that
the violation was non-S&S, finding that an ignition or explosion was
unlikely to occur because of the failure to extend the line curtain.
17 FMSHRC at 1753. The Secretary did not appeal this conclusion.
In finding the violation non-S&S, the judge took into
account that the section of the Wabash mine where the No. 6 entry
is located, 2W/MWS, does not have a history of high methane liberation.
Id. The judge also considered that the highest reading in the No. 6
entry from the continuous miner's methane monitor was 0.6 percent,
and that the great majority of preshift examination methane level
measurements in 2W/MWS taken around the time of the violation were at
or below 0.3 percent. Id. In addition, methane level readings of
zero were taken immediately after Inspector Montgomery's discovery of
the ventilation plan violation. Tr. 89, 185. Thus, all evidence of
2W/MWS methane levels established that AMAX was in conformance with
MSHA requirements.
The only factors which we believe could possibly support a
finding of unwarrantable failure are the obviousness of the
violation, as was impliedly found by the judge, and Wethington's
status as a foreman.[12] Under Commission precedent, however,
these two factors, by themselves, have not been sufficient to
establish unwarrantable failure. In Virginia Crews, knowledge of a
roof control plan violation, including by the responsible
foreman, was not sufficient to establish unwarrantable failure.
15 FMSHRC at 2103-07. The Commission so held even though the
judge had found the violation S&S and that it had been noted during a
pre-shift examination conducted at least 30 minutes prior to its
discovery by the MSHA inspector. Id. at 2106. As the instant
violation was found to be not S&S and to have existed for an even
shorter period of time, Virginia Crews suggests that an
unwarrantable failure finding is inappropriate in this case.
While the Commission has found unwarrantable failure where a
foreman knew of a violation but failed to appropriately remedy the
problem, such cases involved violations which were found to pose
a high degree of danger under the circumstances. See Cypress Plateau
Mining Corp., 16 FMSHRC 1604 (August 1994) (knowing operation of
shuttle car with inoperable brakes S&S violation and unwarrantable);
Cypress Plateau Mining Corp., 16 FMSHRC 1610 (August 1994) (ordering
miners to work in intersection under roof known to be unsupported
in mine with history of roof falls S&S violation and unwarrantable).
This is not such a case.
Accordingly, we would reverse the judge's unwarrantable
failure finding and remand for assessment of an appropriate civil
penalty in light of our decision.
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
**FOOTNOTES**
[11]: Relying on R&P, the Secretary argues that the judge's
decision should be upheld on the ground that Wethington's conduct
in ignoring the violation was "intentional." S. Br. at 5-6.
R&P, involving deliberate misconduct in the form of falsification
of weekly examination records (13 FMSHRC at 190-92), is readily
distinguishable from the omission at the center of this case. We
also note that neither the trial record nor the Secretary's post-
hearing brief indicates that the Secretary took the position
below that Wethington had actual knowledge of the violation.
[12]: In determining unwarrantable failure, the Commission
has held foremen to high standard of care. See, e.g.,
Youghiogheny, 9 FMSHRC at 2011 (quoting Wilmot Mining Co., 9
FMSHRC 684, 688 (April 1987)); S&H Mining, Inc., 17 FMSHRC 1918,
1923 (November 1995).