<DOC>
[DOCID: f:weva98148cd.wais]
CONSOLIDATION COAL COMPANY
June 28, 2001
WEVA 98-148
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
June 28, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 98-148
:
CONSOLIDATION COAL COMPANY :
BEFORE: Jordan, Chairman; Riley and Verheggen, Commissioners[1]
DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act") or ("Act"). At issue is whether
Administrative Law Judge Jerold Feldman correctly determined
that violations of 30 C.F.R. �� 75.400[2] and 75.360(a)(1)[3]
(1997) were not a result of Consolidation Coal Company's
("Consol") unwarrantable failure to comply with the
standards.[4] 22 FMSHRC 455 (Mar. 2000) (ALJ). For the
reasons that follow, we reverse, vacate and remand in part
the judge's determinations.
I.
Factual and Procedural Background
In May 1998, Consol operated the Loveridge No. 22 Mine,
an underground coal mine in Marion County, West Virginia. The
9 South section of the mine was undergoing construction in
preparation for the start-up of the new 1D section, which
branched off of the 9 South. 22 FMSHRC at 456. The construction
consisted of: trenching for the installation of a belt drive in
the No. 5 entry; grading the floor in that belt entry;
installing overcasts[5] across the entries in the 9 South; and
"bumping" corners of coal pillars to widen new haulage
roadways.[6] Id. at 456, 461. To cut the overcasts and trench,
Consol used the common industry method of allowing material cut
from the roof to build up on the mine floor in order to create
a ramp. Id. at 457. The continuous miner then mounted the ramp
to achieve a deeper cut into the mine roof as well as to allow
the roof bolting machine to access the elevated roof in order
to install permanent roof support. Id. Cutting the trenches
and overcasts generated large quantities of dark gray dust. Id.
At the time, the 9 South housed its own mining equipment,
located outby the construction, as well as the equipment for
the new 1D section, located inby the tailpiece. Id. at 456.
This equipment included three continuous miners, each equipped
with 1000 feet of trailing cable, and two sets of mining
equipment, a loading machine with 800 to 900 feet of trailing
cable, shuttle cars and a roof drill. Id. at 456, 468-69.
Trailing cables were placed along the ribs to keep the cables
clear of the haulage roads. Id. at 456.
Because of the construction, mining had been periodic in
the 9 South section since approximately mid-May 1998. Id. at
456-57. On May 20 at midnight, mining was idled, although
miners remained on the section. Id. at 456.
On that same day at approximately 10:00 a.m., Department
of Labor's Mine Safety and Health Administration ("MSHA")
Inspector Kenneth Tenney arrived at the 9 South section for
the purpose of continuing an ongoing regular inspection. Id.
at 457. Danny Kuhn, Consol's Safety Inspector, accompanied
Inspector Tenney. Id. at 457, 461. Inspector Tenney observed
accumulations of coal spillage and pulverized rib sloughage
throughout the No. 3 through the No. 7 entries, from the
first crosscut inby the section tailpiece to the face, an
area approximately 600 feet in length. Id. at 458. Tenney
testified that the spillage and sloughage was in the
haulageways, and that mobile equipment had run over the
material grinding it into fine coal and dust. Id. at 458-59;
Tr. 46-47, 65-67. He testified that most of the
accumulations were powder dry. Tr. 47, 125. In addition,
some of the cables had pulverized sloughage on top of them.
22 FMSHRC at 456; Tr. 69-70, 628.
As a result of his observations, Inspector Tenney issued
Order No. 4889944 citing a significant and substantial ("S&S")
and unwarrantable violation of section 75.400. Gov't Ex. 1.
In addition to describing the general accumulation conditions
of the 9 South section, the order cited the following specific
areas of accumulations: (1) coal spillage that was 20 inches
deep, 8 inches wide and 12 feet long from a bulldozed corner
in the No. 7 crosscut between entry Nos. 6 and 7; (2) coal
accumulations 10 inches deep in the center of the mine floor
in the No. 5 crosscut between entry Nos. 2 and 3; and (3)
ground-up coal from sloughage that was run over by mobile
equipment 10 to 14 inches deep and 36 inches wide running along
the full length of the No. 4 crosscut between entry Nos. 3
and 4. 22 FMSHRC at 458-59. The order also cited coal "wind
rowed"[7] along the sides of the entries up to 12 inches deep.
Id. at 459.[8]
In entry Nos. 4 through 8, Inspector Tenney observed no
visible rock dust at the base of the ribs or on the mine floor.
Id. As a consequence, the inspector issued an order, alleging
a rock dusting violation of 30 C.F.R. � 75.403. Id. at 460.
Inspector Tenney also issued Order No. 4889946, alleging an S&S
and unwarrantable violation of section 75.360(a)(1) for failure
to conduct adequate preshift examinations. Id. at 461; Tr.
196-97, 203-06, 420-21; Gov't Ex. 4. The order stated that the
accumulation and rock dusting conditions were "obvious to even
the most casual observer," appeared to have existed for several
shifts, and had not been reported in the preshift examination
book. Gov't Ex. 4.
Consol utilized all of its crews to clean up and rock dust
the conditions in the 9 South section. 22 FMSHRC at 468-69.
After nearly three shifts and 20 hours of work, the
accumulations cited in Order No. 4889944 were abated at 7:00
a.m. on May 21. Id. at 455, 468-69. Order No. 4889946 was
terminated at the same time after all of the preshift examiners
on the section had been re-instructed on the requirements of
preshift examinations. Gov't Ex. 4.
Consol challenged the orders and a hearing was held. The
judge concluded that Consol violated section 75.400. 22 FMSHRC
at 464. He reasoned that "widespread accumulations" resulting
from ground sloughage that was spread by shuttle cars existed
for a "minimum of several shifts." Id. at 463. The judge found
that the accumulations were "extensive" and that Consol had
"subordinat[ed] its cleanup responsibility to its desire to
complete construction." Id. at 464. The judge next determined
that the violation was S&S because the "cited extensive
accumulations" were a source of propagation in the event of a
methane fire or explosion in any part of the mine and posed a
specific fire or explosion hazard on the 9 South section due
to the presence of several potential ignition sources. Id. at
465.[9] He concluded that the accumulation violation was not
a result of Consol's unwarrantable failure, however, largely
because Consol was engaged in construction, not active mining,
at the time of the inspection. Id. at 468-69. The judge found
that Consol had an "obvious awareness" that it needed to
promptly clean up accumulations, but was not persuaded that
either Consol's notice of its cleanup responsibility or its
past history of section 75.400 violations elevated Consol's
behavior to aggravated conduct sufficient for unwarrantable
failure. Id. at 469-70. He also stated that, while not
dispositive, it was noteworthy that MSHA investigated the
matter and decided not to pursue an action under section
110(c) of the Mine Act, 30 U.S.C. � 820(c). Id. at 469.
In addition, the judge concluded that Consol's failure to
note the hazardous accumulations in the preshift examination
book in the three-hour period preceding the day shift on May
20, amounted to a violation of section 75.360. Id. at 467.
He also determined that the violation was S&S because Consol's
failure to note existing coal dust accumulations in the preshift
examination book contributed to the continuing presence of a
hazardous condition. Id. However, the judge stated that the
failure to record the conditions was not attributable to
Consol's unwarrantable failure because construction on the
section was not yet complete. Id. at 470.[10]
The Secretary of Labor filed a petition for discretionary
review challenging the judge's negative unwarrantable failure
determinations, which the Commission granted.
II.
Disposition
The Secretary argues that the judge's unwarrantable failure
determinations were legally erroneous and not supported by
substantial evidence. PDR at 8, 17.[11] As to the accumulation
violation, she asserts that the judge erred in concluding that
the construction and the consequent difficulty in cleaning up the
9 South section mitigated Consol's negligence. Id. at 9. The
Secretary also challenges the judge's conclusion that notice to
the operator and Consol's previous violations of section 75.400
were not factors supporting an unwarrantable failure finding.
Id. at 12-15. She further contends that the judge erred by
relying on the Secretary's decision not to pursue a section
110(c) action. Id. at 15. The Secretary argues that the
preshift violation was caused by unwarrantable failure because,
although Consol was on notice that it needed to make greater
efforts to clean up accumulations, and the accumulations were
extensive, obvious, dangerous and had been allowed to exist over
at least several shifts, Consol failed to record the
accumulations. Id. at 18. She also asserts that construction
and difficulty in cleanup do not prevent an operator from
recording conditions in a preshift log and therefore do not
mitigate a preshift unwarrantable finding. Id. at 18-19.
Consol responds that the judge's negative unwarrantable
failure determinations are correct and should be affirmed.
Preliminarily, Consol argues that it did not violate sections
75.400 and 75.360 because the Secretary failed to establish that
the accumulated materials were combustible as shown by the
judge's vacation of the section 75.403 violation. C. Br. at 9-
10. Consol submits that, if there were violations, they were not
a result of unwarrantable failure because construction impaired
cleanup of the section. Id. at 10-12. It submits that the
decision to delay cleanup, as it had under a former MSHA field
office, was not aggravated conduct because cleanup would have
involved moving heavy machinery, which could have posed a safety
risk to miners. Id. at 13 & n.4.
A. Violations
We reject Consol's argument that, because the judge
concluded that the Secretary failed to prove that the
accumulations were combustible under section 75.403, we should
vacate the violations of sections 75.400 and 75.360(a)(1). See
C. Br. at 9-10, 19. Under the Mine Act, review is limited to the
questions raised sua sponte by the Commission, or in a petition
for discretionary review filed by "[a]ny person adversely
affected or aggrieved by a decision of an administrative law
judge." 30 U.S.C. � 823(d)(2). Here, Consol did not file a
petition for discretionary review challenging the judge's finding
that the company violated sections 75.400 and 75.360(a)(1). The
violations are thus not before us, and we accordingly decline to
reach them.
B. Unwarrantable Failure
In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991);
see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th
Cir. 1995) (approving Commission's unwarrantable failure test).
Whether conduct is "aggravated" in the context of
unwarrantable failure is determined by looking at all the facts
and circumstances of each case to see if any aggravating factors
exist, such as the extent of the violative condition, the length
of time that it has existed, the operator's efforts in abating
the violative condition, whether the operator has been placed on
notice that greater efforts are necessary for compliance, the
operator's knowledge of the existence of the violation, and
whether the violation is obvious or poses a high degree of
danger. See 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); BethEnergy Mines, Inc., 14
FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC
705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603
(July 1984). These factors need to be viewed in the context of
the factual circumstances of a particular case, and some factors
may be irrelevant to a particular factual scenario.
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000), appeal
docketed, No. 01-1228 (4th Cir. Feb. 20, 2001). Nevertheless,
all of the relevant facts and circumstances of each case must be
examined to determine if an actor's conduct is aggravated, or
whether the level of the actor's negligence should be mitigated.
Id.
1. Order No. 4889944
With respect to the accumulation violation, the judge made
findings on many of the factors relevant to whether an operator's
conduct amounts to unwarrantable failure. Regarding the extent
of the violative condition, the judge stated that the
accumulations in the 9 South were "extensive" and "widespread" in
his discussion of violation. 22 FMSHRC at 463-64. More
specifically, the judge found there was a coal accumulation from
a bulldozed corner in the No. 6 entry at the No. 7 crosscut
measuring 20 inches deep, 12 feet long, and 8 feet wide. Id. at
463. That finding was supported by the testimony of all
witnesses. Tr. 56, 478-79, 604-05, 607; Gov't Exs. 1, 5. In
addition, the inspector testified that the section had
accumulation areas that were six, eight, ten, or twelve inches
deep and that most of the area had more than one inch of
accumulation of coal dust. Tr. 47-60, 389-92; Gov't Ex. 5. He
also observed accumulation conditions in entry Nos. 3 through 7,
an area approximately 600 feet in length. Tr. 46-60, 147-48,
387-88; Gov't Exs. 1, 5. The inspector further stated in the
order that "coal wind rowed along the sides of the entries up to
12 inches deep." Gov't Ex. 1; see n.7 supra. Thus, the judge's
finding that the accumulations were extensive is supported by
substantial evidence.[12]
Regarding the length of time that the violative condition
existed, the judge determined that it was undisputed that the
accumulations existed for "several shifts." 22 FMSHRC at 468.
The inspector testified that it would take many shifts for the
cited accumulations to have amassed. Tr. 203. He based his
opinion on the magnitude of the accumulations, his discussions
with miners indicating that the section had been in this
condition for several shifts, and his experience as a mine
inspector for ten years. Tr. 37, 145-46, 203. Also supporting
the judge's finding, the inspector's contemporaneous notes state
that the "severity of the coal accumulation indicates that it has
taken several shifts and days to get this bad." Gov't Ex. 5, at
11. As to one of the cited accumulations, the inspector and
Consol witnesses testified that accumulations resulting from
bumping work on the midnight shift of May 20 had not been cleaned
up by the time of the inspection, approximately two hours into
the day shift. 22 FMSHRC at 463; Tr. 56-58, 479, 604-09. On
review, Consol has not provided any evidence disputing the
judge's duration finding.
As to the operator's efforts to eliminate the violative
condition, the judge found Consol "subordinated[ed] its cleanup
responsibility to its desire to complete construction" by
allowing the conditions to exist for several shifts. 22 FMSHRC
at 464. The Commission has previously determined that an
operator's decision to avoid or subordinate compliance
responsibility in order to continue mining activities may be
aggravated conduct. Jim Walter Res., Inc., 19 FMSHRC 1761, 1770
(Nov. 1997) (providing that aggravated conduct shown when an
operator decided to avoid compliance with the standard in order
to continue production); Consolidation Coal Co., 22 FMSHRC 328,
333 (Mar. 2000) (same).
We conclude that substantial evidence supports the judge's
determination that Consol subordinated its cleanup responsibility
to its interest in finishing construction. It is undisputed that
when the inspector arrived at the section, no cleanup of the
cited accumulations was underway. Tr. 58-59; see C. Br. at 13
(acknowledging that cleanup was not underway, but stating that
delay was justified). The inspector testified that no
instructions had been given to the miners even though it was
approximately two hours into the shift. Tr. 58-59. The miners
had been instructed to change the ventilation system so as to
clean up one of the construction projects, rather than to clean
up the cited accumulations. 22 FMSHRC at 457; Tr. 58. The
inspector further testified that the miners on the section
exhibited an indifferent attitude towards cleaning up the
section, indicating that they did not feel the conditions were so
bad; that this was a normal condition; and that their shift was
the only shift to ever clean up the section. Tr. 58-59, 135-38.
Although Consol Foreman Zapach testified that some cleanup work
had been done on the midnight shift before the inspection,
consisting of 30 minutes of cleaning gob with a scooter (Tr. 475-
76; Gov't Ex. 6), Zapach did not know where the cleanup occurred,
including whether any part of the cited area had been cleaned.
Tr. 475-76. In any event, even if Consol had cleaned any of the
cited area for 30 minutes, such evidence would not detract from
the judge's finding that Consol had subordinated its cleanup
responsibilities, particularly when termination of the violation
required 20 hours of cleanup, with the afternoon shift alone
loading 14 cars of material. 22 FMSHRC at 468-69; Gov't Ex.
6.[13]
There is also undisputed evidence Consol received actual
notice that greater efforts were necessary to achieve compliance
with section 75.400. The Commission has recognized that past
discussions with MSHA about an accumulation problem serve to put
an operator on heightened scrutiny that it must increase its
efforts to comply with the standard. Enlow Fork Mining Co., 19
FMSHRC 5, 11-12 (Jan. 1997). Likewise, a high number of past
violations of section 75.400 serve to put an operator on notice
that it has a recurring safety problem in need of correction and
the violation history may be relevant in determining the
operator's degree of negligence. Peabody, 14 FMSHRC at 1263-64.
Cf. Deshetty employed by Island Creek Coal Co., 16 FMSHRC 1046,
1051 (May 1994) (providing that 45 citations in the prior year
and prior discussion with MSHA about accumulation problem at mine
"should have engendered . . . a heightened awareness of a
serious accumulation problem"). Recent citations further serve
to place an operator on notice of the need to increase its
efforts to come into compliance. Youghiogheny & Ohio Coal Co.,
12 FMSHRC 2007, 2011 (Dec. 1987). Here, in January 1998, MSHA
warned Consol that its cleanup and rock dusting efforts at the
mine were "borderline to substandard" and needed to be improved.
22 FMSHRC at 457; Tr. 47-48, 300-01. During the previous two
years, the operator received 88 citations alleging violations of
section 75.400. 22 FMSHRC at 470; Gov't Ex. 15. MSHA issued
four citations to the mine alleging section 75.400 violations two
days before the subject order was issued. Tr. 339-41; Gov't Ex.
15; Resp. Ex. 1.
Although the judge correctly concluded that Consol had an
"awareness . . . that operators are responsible for promptly
cleaning dust accumulations" (22 FMSHRC at 469), the judge
misstated Commission precedent when he distinguished Consol's
previous violations on the basis that they were not also caused
by unwarrantable failure or sufficiently similar to the subject
violation. Id. at 470. In evaluating an operator's history of
violations for unwarrantable failure purposes, the Commission
does not require past violations to also be caused by
unwarrantable failure and has declined to limit "the
circumstances under which past violations may be considered by a
judge in determining whether an operator's conduct demonstrated
aggravated conduct." Peabody, 14 FMSHRC at 1263 (rejecting
contention that only past violation involving the same area may
be considered for unwarrantable determination); Enlow Fork, 19
FMSHRC at 11 (providing that "[i]n evaluating evidence of prior
warnings as part of the unwarrantable failure analysis, the
Commission has not required the previous condition to involve
materials identical to those involved in the condition at
issue"). The case on which the judge relies, Greenwich
Collieries, 12 FMSHRC 940, 945 (May 1990), to support his theory
that to be relevant for unwarrantable analysis previous
violations must also be unwarrantable, is inapposite. That case
involved the Mine Act's graduated enforcement scheme where a
section 104(d) order may be issued only after a second
unwarrantable violation occurs in 90 days, and did not discuss
the notice factor included in the evaluation of unwarrantable
failure.
In addition, under the circumstances of this case, we conclude
that the judge erred in determining that Consol's construction
activities precluded an unwarrantable failure determination.[14]
The Commission has explained that "when an operator believed in
good faith that the cited conduct was the safest method of
compliance with applicable regulations, even if they are in
error, such conduct does not amount to aggravated conduct
exceeding ordinary negligence." Utah Power & Light Co., 12
FMSHRC 965, 972 (May 1990) (emphasis in original). Here, Consol
was not attempting to comply with section 75.400. No cleanup was
underway of the cited accumulations. Nor did Consol introduce
evidence that it had taken actions to increase its cleanup
efforts in response to MSHA's January admonition, such as a
special assignment of miners to cleanup, or an initiation of a
regular cleanup program. See Tr. 82-83; compare Amax Coal Co.,
19 FMSHRC 846, 851 (May 1997) (reasoning that assigning one miner
to cleanup was insufficient to address accumulation problem) with
Peabody Coal Co., 18 FMSHRC 494, 498-99 (April 1996) (providing
that extensive remedial efforts may militate against
unwarrantable failure). Furthermore, Consol made no effort to
minimize the effects of construction on its cleanup of
accumulations. A significant portion of the cited accumulations
were in places other than inby the tailpiece and outby the
construction activities, where heavy equipment was located. See
22 FMSHRC at 456; Gov't Ex. 7. Although removal of such
accumulations would not have required moving equipment, Consol
made no effort to remove even the most accessible accumulations.
Moreover, in areas where equipment would have interfered with
cleanup efforts, Consol failed to show that the equipment could
not be moved to other locales in the mine, which would have
allowed cleanup of the entire cited area.[15]
In sum, substantial evidence supports the judge's findings
that the accumulations were extensive and that Consol
subordinated its cleanup responsibilities to its desire to
complete construction. In addition, undisputed testimony reveals
that the accumulations existed for several shifts and that Consol
had actual knowledge that it needed to increase its efforts to
comply with section 75.400. Given these findings and our
conclusion that Consol's construction activities in this case
cannot be viewed as a mitigating factor, we conclude that the
record supports only the determination that Consol's accumulation
violation was caused by its unwarrantable failure. Am. Mine
Serv., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (holding that
remand unnecessary when evidence could justify only one
conclusion). Accordingly, we reverse the judge's determination
that Consol's violation of section 75.400 was not unwarrantable
and remand for the reassessment of a civil penalty. In his
reassessment of a civil penalty, we instruct the judge to set
forth his findings and conclusions on the six penalty factors set
forth in section 110(i) of the Mine Act, 30 U.S.C. � 820(i).
2. Order No. 4889946
At the conclusion of his unwarrantable failure analysis of the
accumulation violation, the judge stated, without further
explanation, that Consol's failure to record the cited
accumulations was not a result of unwarrantable failure because
of the construction occurring on the section.
22 FMSHRC at 470. We conclude that the judge erred in failing to
separately consider the alleged unwarrantability of Consol's
violations of sections 75.400 and 75.360, which require separate
and distinct duties of an operator. Section 75.400 prohibits the
accumulation of combustible materials, while section 75.360 sets
forth requirements for preshift examinations. The analyses for
whether Consol's violations of these sections were caused by
unwarrantable failure are not interchangeable, although such
analyses may rely upon some of the same factual findings. The
judge failed to set forth sufficient findings of fact,
conclusions of law, and the bases for them, relevant to the
consideration of whether Consol's violation of section 75.360 was
aggravated. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June
1994). We also reject the judge's conclusion that Consol's
construction activities served as a mitigating factor in his
determination that Consol's preshift violation was not caused by
unwarrantable failure. Even if we were to assume that the
difficulty imposed by construction prevented Consol from cleaning
up accumulations, such difficulty would not prevent Consol from
recording the accumulations in a preshift examination log.
Accordingly, we vacate the judge's conclusion that Consol's
violation of section 75.360 was not unwarrantable, and remand for
further analysis and reassessment of civil penalty.
On remand, in analyzing the unwarrantable failure issue, we
instruct the judge to consider the inspector's undisputed
testimony that there were no notations of the accumulation
conditions for the preceding seven shifts before the inspection,
and that all preshift examiners of the subject area were foremen.
Tr. 413-16, 420-21; Gov't Ex. 16. See Midwest Material Co., 19
FMSHRC at 35 (in evaluating unwarrantable failure, foremen are
subject to a high standard of care). All findings concerning the
facts and circumstances surrounding the unwarrantability of
Consol's violation of section 75.400 that we have affirmed become
law of the case. We direct the judge to consider these facts and
circumstances, insofar as they may be relevant, in considering
whether Consol's violation of section 75.360(a)(1) was
unwarrantable. Finally, in his reassessment of a civil penalty,
we instruct the judge to consider the penalty factors set forth
in section 110(i) of the Mine Act, as they separately relate to
the preshift violation, and to set forth his findings and
conclusions.
III.
Conclusion
For the foregoing reasons, we reverse the judge's
determination that Consol's violation of section 75.400 was not
caused by its unwarrantable failure, reinstate Order No. 4889944
under section 104(d)(2) of the Mine Act, and remand for
reassessment of an appropriate penalty. As to Order No. 4889946,
we vacate the judge's negative unwarrantable failure
determination and remand for an analysis consistent with this
decision and for the reassessment of an appropriate civil
penalty.
_____________________________________
Mary Lu Jordan, Chairman
_____________________________________
James C. Riley, Commissioner
____________________________________
Theodore F. Verheggen, Commissioner
Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Robert Vukas, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
**FOOTNOTES**
[1]: Commissioner Beatty recused himself in this matter
and took no part in its consideration.
[2]: Section 75.400, entitled "Accumulation of
combustible materials," provides:
Coal dust, including float coal dust
deposited on rock-dusted surfaces, loose
coal, and other combustible materials, shall
be cleaned up and not be permitted to
accumulate in active workings, or on diesel-
powered and electric equipment therein.
[3]: Section 75.360(a)(1), entitled "Preshift
examination," provides in part:
[A] certified person designated by the
operator shall make a preshift examination
within 3 hours preceding the beginning of any
shift during which any person is scheduled to
work or travel underground.
[4]: 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.
[5]: An "overcast" is a groove cut in a mine roof
allowing one air current to pass over another. Tr. 63.
[6]: Bumping a corner, also described as cutting a turn,
refers to cutting a corner of a coal pillar so as to widen
a haulageway. 22 FMSHRC at 456; Tr. 478-79.
[7]: The inspector's notes explained that drags, or bars
underneath shuttle cars, acted to "wind row" the coal spillage
near each rib. Tr. 60-61; Gov't Ex. 5, at 8. A "wind row" is
a "row heaped up by or as if by wind." Webster's Third New
International Dictionary 2620 (1993).
[8]: Consistent with MSHA practice, the inspector did not
include rib sloughage, that is, coal pieces or lumps that fell
off the ribs, in his accumulation measurements. 22 FMSHRC at
456. The inspector, however, cited sloughage that was
transformed from its lump form into fine coal and dust by
being pulverized by mobile equipment. Id. at 458; Tr. 65-67.
In addition, he did not consider ramp material cut from the
roof and left on the ground as prohibited accumulations.
Tr. 287.
[9]: Loveridge No. 22 Mine releases more than one million
cubic feet of methane during a 24-hour period and is subject
to a five-day examination under Mine Act section 103(i), 30
U.S.C. � 813(i). 22 FMSHRC at 465.
[10]: The judge vacated the order alleging a rock dusting
violation of section 75.403 (22 FMSHRC at 467), and the
Secretary has not appealed the ruling.
[11]: The Secretary designated her petition for
discretionary review ("PDR") as her brief.
[12]: When reviewing an administrative law judge's
factual determinations, the Commission is bound by the terms
of the Mine Act to apply the substantial evidence test. 30
U.S.C. � 823(d)(2)(A)(ii)(I). "Substantial evidence" means
"`such relevant evidence as a reasonable mind might accept as
adequate to support [the judge's] conclusion.'" Rochester &
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
[13]: Although Consol witnesses testified that Consol
planned to clean up the section once construction was finished
(Tr. 479, 605-06, 674), the Commission has recognized that
such intentions generally do not demonstrate the vigilance
required to detract from an unwarrantable failure finding. See
Consolidation Coal, 22 FMSHRC at 332 (providing that future
intention is insufficient to shield an operator from
unwarrantable failure determination).
[14]: To the extent the judge relied upon the Secretary's
decision not to pursue an action under section 110(c) of the
Mine Act as an additional mitigating factor in his
unwarrantable failure analysis, he erred. The Secretary's
decision to not bring a section 110(c) case is not subject
to review by this Commission and its judges. Heckler v. Chaney,
470 U.S. 821, 831-32 (1985). Moreover, the Secretary may
decide not to bring a section 110(c) action for numerous
reasons (including tactical and logistical concerns) not
related to the level of negligence of the operator.
Accordingly, it is not appropriate to draw any inferences
from the Secretary's decision not to pursue a 110(c) case.
[15]: We are not persuaded by Consol's assertion that
its conduct was not aggravated because it was following a
cleanup procedure that was done in the past "apparently"
with the acquiescence of another MSHA district. C. Br. at
13 n.4. Consol introduced no evidence that the prior MSHA
office was aware of, or approved of, its procedure of delaying
cleanup of accumulations while construction was underway.
Likewise, Consol failed to introduce any record evidence
supporting its argument that cleaning up before construction
was complete would have posed a danger to miners. Id. at
13. Contrary to that assertion, the judge found that the
accumulation violation was S&S, i.e., that it significantly
and substantially contributed to a hazard (22 FMSHRC at
465), a finding which Consol did not appeal.