<DOC>
[DOCID: f:wv199839.wais]
EAGLE ENERGY INC.
August 30, 2001
WEVA 98-39
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
August 30, 2001
SECRETARY OF LABOR :
:
v. : Docket No. WEVA 98-39
:
EAGLE ENERGY INC. :
BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
Commissioners
DECISION
BY: Riley and Beatty, Commissioners
In 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"), Administrative Law Judge Jerold
Feldman determined that Eagle Energy Inc. ("Eagle Energy")
committed a significant and substantial ("S&S")[1] violation of
30 C.F.R. � 75.380(d)(1)[2] when water accumulations occurred
in an escapeway. 21 FMSHRC 1235, 1244-46 (Nov. 1999) (ALJ). He
found that the violation was not caused by the operator's
unwarrantable failure. Id. at 1251. The judge assessed a
penalty of $2,500. Id. The Commission granted the Secretary of
Labor's petition for discretionary review challenging the
judge's finding of no unwarrantable failure. For the following
reasons, we vacate the judge's unwarrantable failure
determination and penalty assessment, and remand for further
consideration.
**FOOTNOTES**
[1]: The S&S terminology is taken from section 104(d)(1)
of the Act, 30 U.S.C. � 814(d)(1), which distinguishes as
more serious any violation that "could significantly and
substantially contribute to the cause and effect of a . . .
mine safety or health hazard."
[2]: Section 75.380(d)(1) provides, in pertinent part:
"(d)
Each escapeway shall be - (1) Maintained in a safe condition
to always assure passage of anyone, including disabled
persons . . . ." 30 C.F.R. � 75.380(d)(1).
I.
Factual and Procedural Background
Eagle Energy owns and operates Mine No. 1, an underground
coal mine in Boone County, West Virginia. 21 FMSHRC at 1238;
Gov't Ex. 2. Mine No. 1 is an extremely wet mine with recurring
water accumulation problems. 21 FMSHRC at 1236. Water flows
down to the mine from the surface and seeps in from an adjacent
abandoned mine which is inundated with water. Id. at 1238. Over
100 pumps have been used throughout the mine. Id. at 1236.
Production director John Adkins testified that approximately 5
million gallons of water were pumped out every day and that
water rapidly collected at locations of chronic accumulations.
Id. at 1245; Tr. IV 141.[3]
Eagle Energy developed the 10 Left Section of the mine with
three parallel entries using a continuous miner. 21 FMSHRC at
1238; Gov't Ex. 32. While the continuous miner was advancing in
the section, the No. 1 entry was the return air entry, the No. 2
entry served as the beltline and track entry, and the No. 3
entry was the primary escapeway and intake air entry. 21 FMSHRC
at 1238. The operator installed an incoming six-inch diameter
fresh water line in the No. 2 belt/track entry to bring fresh
water to the working face and to provide fire protection along
the beltline. Id. The three entries were separated by stoppings.
Id. While the 10 Left Section was in production, water was
removed from the section by pumping it onto the beltline through
discharge hoses. Id. The water was absorbed by the coal on the
beltline and carried to the surface. Id.
On July 9, 1997, Eagle Energy completed mining in the
10 Left Section and temporarily suspended production in
anticipation of bringing in the longwall from another section
of the mine. Id. On that same day, the continuous miner in
the 10 Left Section was removed and Eagle Energy began
dismantling the beltline to move it from the No. 2 entry to
the No. 1 entry of the 10 Left Section. Id. By dismantling
the beltline, Eagle Energy could no longer use it to pump
water out of the section. Id.
On July 10, 1997, Inspector Albert "Benny" Clark of the
Department of Labor's Mine Safety and Health Administration
("MSHA") began an inspection of the mine. Id. He traveled to
the No. 3 escapeway entry of the 10 Left Section to determine
if Citation No. 7160006 issued by MSHA Inspector Andrew Nunnery
on June 24, 1997, should be terminated. Id. Citation No.
7160006 had cited a non-S&S violation of section 75.380(d)(1)
for water accumulations in the 10 Left escapeway ranging "in
depth from 1" to 14" with slick and muddy bottom at crosscut
49 to 48 for a distance of approx. 100 feet." Id.; Gov't Ex.
29. Nunnery had characterized Eagle Energy's degree of
negligence as "moderate." 21 FMSHRC at 1238. When Nunnery
issued the citation, normal mining operations were in progress
and the beltline was operational and available for removing
water from the escapeway. Id.
During his inspection, Clark found there was water at the
same location cited in Citation No. 7160006. Id. at 1239.
Believing it was the same water cited by Nunnery, Clark issued
104(b) Order No. 7163178 on July 10, 1997, for Eagle Energy's
alleged failure to abate Citation No. 7160006. Id. However,
104(b) Order No. 7163178 was subsequently vacated on procedural
grounds by an MSHA conference officer. Id.; Tr. III 18.
Also on July 10, Inspector Clark found water accumulations
between 1 and 24 inches in depth for a distance of 200 feet
between the 69 and 71 crosscuts in the 10 Left escapeway. 21
FMSHRC at 1239. He issued Citation No. 7163177 for an S&S
violation of section 75.380(d)(1) for the accumulations. Id.
Clark testified that he believed the violation was due to Eagle
Energy's unwarrantable failure because there were notations in
the weekly examination book of similar water accumulations in
the same area for the preceding five weeks. Id.; Tr. III 12-15.
However, Clark testified that he was persuaded by safety
director Jeffrey Bennett and then superintendent Stan Edwards
to issue Citation No. 7163177 as a 104(a) citation rather than
an unwarrantable 104(d) citation because of their assurances
that future escapeway water problems would be prevented. 21
FMSHRC at 1239.
Despite Eagle Energy's assurances about improving its water
problems, it was apparent that it could not abate Citation No.
7163177 because it had dismantled the beltline which it used to
discharge water in the 10 Left escapeway. Id. At Inspector
Clark's suggestion, Eagle Energy converted the section's fresh
water line to a discharge line to deal with the water
accumulations. Id. On July 11, Clark terminated Citation No.
7163177 after the cited water accumulations had been discharged
through the newly converted discharge line. Id.
On August 13, while continuing his inspection, Clark found
water accumulations in the 10 Left escapeway measuring 1 to 15
inches in depth with a slick and muddy bottom and extending for
220 feet between crosscuts 97 to 99. Id. at 1240. He issued
Citation No. 7163218 for an S&S violation of section
75.380(d)(1) for the water accumulations. Id. He did not
designate the violation unwarrantable. On August 14, the
citation was terminated after the water was pumped and
discharged through the converted discharge line. Id.
From August 30 through September 1 (Labor Day weekend),
hourly workers did not work at the mine. Id. Instead, it was
staffed by 20 to 30 management personnel who had decided to
complete the longwall move on their own. Id. At approximately
4:00 p.m. on August 31, the converted discharge line was
changed back to a fresh water line to facilitate the impending
longwall operation. Id. According to Eagle Energy, the fresh
water line was needed to power up the longwall's shields, for
dust suppression, and could not be turned back to a discharge
line without interfering with the longwall start-up schedule.
Id.
On September 1, Eagle Energy started the beltline but it
pulled apart at several locations and had to be repaired. Id.
At approximately 7:00 a.m. on September 2, Eagle Energy again
attempted to start the beltline but it again pulled apart at
several locations. Id.
At approximately 8:30 a.m. on September 2, Inspector Clark
arrived at the mine, accompanied by MSHA Supervisor Terry Price,
to continue the inspection. Id. After reviewing the preshift
and onshift books, Clark and Price traveled to the 10 Left
Section, accompanied by safety director Bennett. Id. Upon
arriving in the 10 Left Section, Clark and Price noted general
damp and wet conditions and that the No. 1 belt entry had
several water accumulations and was generally damp; the No. 2
track entry also contained several areas of water accumulations,
soft ribs, and an uneven bottom in several places; and the
No. 3 escapeway entry was damp to wet, had several water
accumulations, loose ribs at different locations, and an uneven
bottom in some locations. Id.; Tr. III 83-84.
At crosscut 70 in the No. 2 track entry, the inspection
party found a large water accumulation, which extended into the
crosscut right up to the stopping between the track entry and
the No. 3 escapeway entry. 21 FMSHRC at 1241. Based on the
amount of water he observed at the 70 crosscut in the track
entry, Inspector Clark concluded that there would also be water
at the 70 crosscut in the No. 3 escapeway entry. Id.
Using the nearest mandoor between the two entries, the
inspection party traveled to the 70 crosscut in the No. 3
escapeway and Clark observed a water accumulation at the
crosscut extending from rib to rib and approximately 110 feet
long and up to at least 15 inches deep. Id. The inspection
party started walking the No. 3 escapeway in an outby direction.
Id. At crosscut 60, Clark observed another water accumulation
extending from rib to rib that was approximately 90 feet long
and up to at least 15 inches deep. Id. Between crosscuts 51
and 52, Clark observed a water accumulation extending from rib
to rib that was approximately 40 feet long and up to at least
12 inches deep. Id. Finally, in the vicinity of crosscuts 48
and 49, Clark observed a water accumulation approximately 120
feet long and up to at least 15 inches deep. Id. at 1242.
Clark found that all the water accumulations were characterized
by muddy water, slick bottoms, and the presence of loose coal.
Id.; Gov't Ex. 26.
Once the inspection party arrived on the surface, Clark
checked the weekly examination books and found reports, dated
August 15, 22, and 29, of water accumulations in the 10 Left
escapeway. 21 FMSHRC at 1242. However, he did not find any
indication in the examination reports that remedial action
(i.e., pumping) had been taken to correct the hazardous
conditions. Id. The judge credited Clark's testimony that he
had previously warned Eagle Energy about failing to show
remedial action in its weekly examination books. Id. at 1251
n.8. Clark concluded that no remedial action had been taken in
the 10 Left escapeway since the water accumulations had been
reported in the examination books on August 15, 22, and 29.
Id. at 1242. His conclusion was based, in part, on his finding
that, when water accumulations in other sections were reported
in the weekly examination books, they were accompanied by
reports of remedial action, such as "being pumped" or "pumped
down." Id. Production director Adkins and superintendent
Harry Walker testified that pumps were used to discharge the
water accumulations in the 10 Left escapeway until the discharge
line was converted back to a fresh water line at 4:00 p.m. on
August 31. Id. at 1243; Tr. IV 167-70; Tr. V 100-01.
Based on his observations, Inspector Clark issued a
104(d)(1) citation (No. 7163242), alleging an S&S violation of
section 75.380(d)(1) due to the water accumulations in the 10
Left escapeway. 21 FMSHRC at 1243. He found that the violation
resulted from Eagle Energy's unwarrantable failure because it
was aware of the water accumulations, it had been warned
previously about water accumulations in its escapeways, there
was no evidence that remedial actions had been taken, and it
had a history of previous violations for the same violative
condition. Id. Eagle Energy contested the finding of the
violation, the S&S and unwarrantable failure designations, and
the proposed penalty.
Following a hearing, the judge found an S&S violation of
section 75.380(d)(1) by Eagle Energy for the water accumulations
in the 10 Left escapeway. Id. at 1244-46. He concluded that the
violation was not unwarrantable because the Secretary did not
demonstrate the operator's longstanding failure to eliminate the
cited accumulations. Id. at 1247-48. The judge suggested
that the MSHA inspector undercut his unwarrantable failure
designation by attributing the violation to the operator's "high
degree of negligence" rather than its "reckless disregard." Id.
at 1248. He also determined that the operator's actions were
mitigated because (1) it had no means of discharging the water
at the time of the cited violation; (2) the Secretary had not
found a similarly cited violation in the past to be
unwarrantable; (3) the mine was only staffed by management
personnel at the time of the cited violation (Labor Day
Weekend); and (4) roof falls requiring the attention of mine
management occurred at the mine prior to the cited violation.
Id. at 1249-50.
II.
Disposition
The Secretary argues that the judge erred in determining
that the operator's negligence was mitigated because there was
no means for discharging water in the cited escapeway from
August 31 to September 2. S. Br. at 11-18. She contends that
the judge also erred in basing his negative unwarrantability
conclusion on the ground that MSHA did not cite a similar
violation as unwarrantable in the past. Id. at 18-19. The
Secretary also contends that the judge erroneously grounded his
conclusion of no unwarrantable failure on the fact that the
inspector checked off the "high negligence" box instead of the
"reckless disregard" box on the citation form. Id. at 19-20.
Further, she argues that the judge improperly discounted the
operator's history of similar violations because the mine was
a wet mine. Id. at 21-24. In addition, the Secretary contends
that the judge failed to properly consider the operator's prior
discussions with MSHA about the need for greater compliance.
Id. at 24-25. She further contends that the judge inadequately
addressed evidence concerning whether the water accumulations
were the same as accumulations noted previously in the
operator's examination books. Id. at 25-28. The Secretary
asserts that the judge erred in concluding that the operator's
negligence was mitigated because only management personnel
worked on the Labor Day Weekend when the violation at issue
occurred, and in determining that roof falls at the mine were
a mitigating factor. Id. at 28-30. Finally, the Secretary
contends that the judge failed to consider the various
unwarrantable failure factors taken together. Id. at 30-32.
Eagle Energy responds that the judge's finding of no
unwarrantable failure is supported by substantial evidence. EE
Br. at 2. It contends that there are no regulatory requirements
supporting the Secretary's assertion that Eagle Energy should
have established an additional method for discharging water or
determined that the beltline was fully operational before it
disconnected its discharge water line. Id. at 12. It argues
that substantial evidence supports the judge's determination
that it had no reason to expect that the water would accumulate
to hazardous depths before it planned to resume pumping. Id.
The operator contends that, contrary to the Secretary's
assertion, an unwarrantable failure finding requires more than
a showing that the operator failed to avoid a violation about
which it "knew or should have known." Id. at 12-13.
The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. � 814(d), and refers to
more serious conduct by an operator in connection with a
violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987),
the Commission determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence.
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 13, 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 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 are
necessary for compliance, the operator' efforts in abating the
violative condition, whether the violation is obvious or poses
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), appeal docketed, No. 01-1228 (4th
Cir. Feb. 21, 2001) ("Consol"); Cyprus Emerald Res. Corp., 20
FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d
42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34
(Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992);
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992);
Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). 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. Consol, 22 FMSHRC
at 353.
A. Unwarrantable Failure Factors
1. Efforts to Abate the Violative Condition
We conclude that the judge failed to adequately consider
whether, apart from pumping water on to the reassembled beltway
or through the converted discharge line, there was another way
of discharging water from the escapeway before the longwall was
put into operation. Inspector Clark testified that the operator
could have discharged water from the escapeway by running a
discharge line, up to 1,000 feet in length, from the escapeway
to a discharge source in the Mudlick Mains, another section of
the mine. Tr. V 290-91. The judge found that, after discussing
the possibility with management, the inspector concluded that
1,000 feet was too great a distance to run a discharge line.
21 FMSHRC at 1239. The judge quoted the inspector as testifying:
"We discussed if we could run it over to Mudlick, and there was
no way. It was too far." Id.; Tr. III 90. However, it is not
clear from this testimony whether the inspector concluded that
it was too far or whether he was only reporting management's
response that it was too far. On a subsequent day of the
hearing, the inspector testified that it was management that
responded that it was too far to run a discharge line to the
Mudlick Mains. Tr. V 291-92. He also testified that the
operator should have run a discharge line from the escapeway to
the Mudlick Mains when it converted the discharge line back into
a fresh water line prior to restarting the beltway. Tr. V 295-
99. Based on the evidence, it does not appear that substantial
evidence[4] supports the judge's finding that it was impractical
to run a discharge line from the escapeway to the Mudlick Mains.
We further conclude that the judge erred in finding that
Eagle Energy's failure to pump water out of the escapeway from
the afternoon of August 31 to the afternoon of September 2 was
mitigated because it did not have a means for pumping out the
water. 21 FMSHRC at 1250. The operator lacked a way to pump out
water because it had disconnected both its primary and secondary
means of discharging water in order to facilitate its longwall
move.[5] There is no evidence why the operator could not have
reassembled the beltline and had it in operating condition
before it reconverted the discharge line back to a fresh water
line. The record evidence also does not refute the possibility
that the operator could have run an additional discharge line
to the surface, as it did with the existing fresh water line.
Despite the chronic water accumulation problems in
the escapeway,[6] the operator made no attempt to abate
accumulations in the escapeway from the afternoon of August 31
to the morning of September 1, even though it knew in advance
that the discharge line and the beltline would both be
unavailable for pumping during this time. The operator
attempted unsuccessfully to restart the beltline on the morning
of September 1, which would have allowed it to pump water out on
the beltline.[7] Id. at 1237. When its attempt to restart the
beltline failed, it had no alternative means of pumping out the
water until the beltline was restarted on the afternoon of
September 2 because it had chosen to disconnect the converted
discharge line in order to facilitate its longwall move and
because it chose not to run a discharge line to the Mudlick
Mains. Thus, the means to abate the water accumulations cited
on September 2 were within the operator's control but it chose
not to use them when it decided to have both the discharge line
and the beltline unavailable for pumping starting on the
afternoon of August 31.
Under Commission precedent, an operator's failure to take
remedial action within its control to abate a known hazard is an
aggravating circumstance that supports an unwarrantable failure
conclusion. See New Warwick Mining Co., 18 FMSHRC 1568, 1574
(Sept. 1996) (holding operator's failure to abate known water
accumulations was unwarrantable); Ambrosia Coal & Constr. Co.,
18 FMSHRC 1552, 1562 (Sept. 1996) (finding unwarrantable failure
due to foreman's failure to abate known brake defect); Warren
Steen Constr., Inc., 14 FMSHRC 1125, 1129-30 (July 1992)
(affirming unwarrantable violation where operator failed to
abate known electrical hazard); Cyprus Plateau Mining Corp.,
16 FMSHRC 1604,1607-08 (Aug. 1994) (affirming unwarrantable
failure where operator aware of brake malfunction but failed
to remedy problem). Accordingly, as a matter of law, the
operator's elimination of all means of pumping water from the
afternoon of August 31 to the afternoon of September 2 was an
aggravating rather than mitigating circumstance for
unwarrantable failure purposes.[8]
In addition, substantial evidence does not support the
judge's conclusion that the operator's failure to abate the
violative condition was mitigated by two roof falls at the mine.
The roof falls were cleared by the evening of August 29, well
before the operator decided to reconvert the discharge line back
to a fresh water line on the afternoon of August 31. 21 FMSHRC
at 1250. The record is void of any evidence indicating that the
roof falls impeded the operator from addressing the cited water
accumulations in the escapeway.
On remand, the judge must reconsider his negative
unwarrantable failure determination in light of the operator's
lack of abatement efforts, and consider as an aggravating
factor that the operator did not run a discharge line to the
Mudlick Mains. In his analysis, the judge should also consider
the operator's lack of a means to pump water in the escapeway
during the period in question as an aggravating, not a
mitigating, factor, and take into account that the roof falls
were not a mitigating circumstance.
1. Other Factors
We conclude that the judge also erred by failing to
consider the obviousness and danger[9] posed by the cited
accumulations in his unwarrantable failure analysis. See
BethEnergy Mines, 14 FMSHRC at 1243 (finding violation
unwarrantable where unsaddled beams "presented a danger" to
miners entering the area); Windsor Coal Co., 21 FMSHRC 997,
1006-07 (Sept. 1999) ("The judge should . . . have addressed
whether the accumulations were obvious."). On remand, the
judge must explicitly consider these factors in his
unwarrantability analysis.
Substantial evidence supports the judge's finding (21
FMSHRC at 1245, 1249) that the accumulations cited on September
2 were extensive. On review, Eagle Energy does not dispute the
judge's finding in this regard. The four accumulations extended
from 40 to 120 feet in length and from up to 15 inches or more
in depth. Id. The judge's finding that the violative condition
was extensive "fairly detracts" from his negative unwarrantable
failure finding. Midwest Material, 19 FMSHRC at 34 n.5
(citation omitted).
The judge's finding (21 FMSHRC at 1249) that the operator
was on notice of the need for greater compliance efforts is
also supported by substantial evidence. On review, Eagle Energy
does not dispute the judge's finding regarding notice. The
record evidence shows that the mine had chronic water
accumulation problems. The operator had received seven
citations for water accumulations in the 10 Left escapeway
between May and August 1997. Gov't Exs. 28-31, 38-40. The
operator's weekly examination books showed water accumulations
in the escapeway on August 15, 22, and 29. The operator was
also warned by MSHA in July and August about its water
accumulation problems. Tr. III 12-16, 25.
However, we conclude that the judge erred by considering
as a mitigating factor that MSHA did not find unwarrantable
failure when issuing previous citations for water accumulations
in the same escapeway. 21 FMSHRC at 1249. Under Commission
precedent, prior citations, even if not designated as
unwarrantable, place operators on notice that greater
compliance is required. Peabody Coal, 14 FMSHRC at 1263-64;
Amax Coal Co., 19 FMSHRC 846, 851 (May 1997). Accordingly,
rather than being a mitigating factor, the judge should have
treated Eagle Energy's previous citations as an aggravating
factor for the purposes of notice of the need for greater
compliance efforts. In light of this precedent, the judge's
finding that the operator was on notice of the need for
greater compliance efforts "fairly detracts" from his negative
unwarrantable failure determination. On remand, the judge must
reanalyze the unwarrantable failure issue, taking into
consideration the operator's prior water accumulation
citations as an aggravating factor.
We agree with the judge (21 FMSHRC at 1245) that the record
is unclear on how long the water accumulations were in violation
of section 75.380(d)(1) prior to being cited by the inspector on
September 2.[10] Thus, it is not clear whether the duration of
the violation was an aggravating factor. However, the Commission
has found unwarrantable failure when the duration of the
violation was unclear. See Jim Walter Res., Inc., 19 FMSHRC 480,
487, 489 (Mar. 1997) (holding that unwarrantable failure can be
found even when duration is in question).
B. Characterization of Conduct
We conclude that the judge erred in predicating his
negative unwarrantable failure determination on the fact that,
when recording the violation on the citation form, the MSHA
inspector checked the "high negligence" box rather than the
"reckless disregard" box. 21 FMSHRC at 1248. The Commission
has defined unwarrantable failure as "aggravated conduct
constituting more than ordinary negligence," and has
characterized such conduct not only as "reckless disregard"
but also as "indifference" or a "serious lack of reasonable
care." Emery, 9 FMSHRC at 2003-04. Thus, contrary to the
judge's analysis, a finding of unwarrantable failure does not
require a finding of "reckless disregard." The Commission has
also previously recognized that a finding of high negligence
suggests unwarrantable failure. In Eastern Associated Coal
Corp., 13 FMSHRC 178, 187 (Feb. 1991), the Commission stated:
"`Highly negligent' conduct involves more than ordinary
negligence and would appear, on its face, to suggest an
unwarrantable failure. Thus, if an operator has acted in a
highly negligent manner with respect to a violation, that
suggests an aggravated lack of care that is more than ordinary
negligence." In addition, the Commission has found
unwarrantable failure for violations, like the violation in
the instant case, that were designated as "high negligence" on
the citation form. See Cyprus Emerald, 20 FMSHRC at 793, 813-15
and 17 FMSHRC 2086, 2100, 2104 (Nov. 1995) (ALJ) (affirming
unwarrantability finding for refuse pile violations checked as
"high negligence" on citation form). On remand, the judge must
reconsider, consistent with Commission precedent, whether the
operator's highly negligent conduct in this case amounts to an
unwarrantable failure.
In sum, we remand this matter for reconsideration of the
judge's negative unwarrantable failure finding. The judge must
reconsider the operator's lack of abatement efforts, including
his finding that it was impractical to run a discharge line to
the Mudlick Mains, that the operator's lack of a means to pump
water in the escapeway during the period in question was an
aggravating factor, and taking into account that the roof falls
were not a mitigating circumstance. The judge must also
consider the danger factor, taking into account that the danger
was not mitigated because only management personnel worked at
the mine during the period in question. In addition, he must
consider the obviousness of the cited accumulations. The judge
must also explain how the operator's notice of the need for
greater compliance efforts and the extensiveness of the
violation affect the unwarrantable failure determination.
Finally, the judge must reconsider the effect of the operator's
highly negligent conduct on the unwarrantable failure issue.
III.
Conclusion
For the foregoing reasons, we vacate the judge's
determination that Eagle Energy's violation of section
75.380(d)(1) was not the result of its unwarrantable failure,
and the assessed civil penalty. We remand for further analysis
consistent with this opinion, and reassessment of the civil
penalty.
James C. Riley, Commissioner
Robert H. Beatty, Jr., Commissioner
**FOOTNOTES**
[3]: The transcript contains a separate volume for each
day of the six day hearing. Transcript references note the
appropriate hearing day by Roman numeral I through VI followed
by the page number of the transcript for that day's hearing.
[4]: 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)). In reviewing the
whole record, an appellate tribunal must consider anything in
the record that "fairly detracts" from the weight of the
evidence that supports a challenged finding. Midwest Material,
19 FMSHRC at 34 n.5 (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)).
[5]: When Eagle Energy dismantled the beltline on July 9,
1997, it did so with no apparent thought to an alternative
means of disposing of escapeway water until the beltline would
be reassembled after the longwall move. When this oversight
resulted in a citation, Eagle Energy was the fortuitous
benefactor of an inspector's insightful suggestion to convert
the fresh water line into a discharge line for purposes of
pumping out the water, which proved to be a cost-effective and
simply solution. While the old adage "once burned, twice
learned" comes to mind, such a lesson was apparently lost on
Eagle Energy for they proceeded to reconvert the discharge line
back to a fresh water line without a means to discharge
escapeway water from an extremely wet mine.
[6]: Production director Adkins testified that parts of
the escapeway needed to be pumped at least three or four times
a day and that, without pumping, the water would eventually
reach the roof of the escapeway. Tr. IV 174, 274, 277.
Because of the history of water accumulation problems in the
escapeway and the need for frequent pumping, the record fails
to support the operator's argument that it "had no reason to
expect that water would accumulate in the escapeway to
hazardous depths" between the time it disconnected the
discharge line on August 31 and the time it planned to resume
pumping water onto the beltline on September 1. EE Br. at 12.
[7]: When operational, the beltline could be used to pump
water out of the escapeway even when no coal was being produced
on the section. Tr. V 141-42.
[8]: Contrary to Chairman Verheggen's suggestion (slip op.
at 19), we are not asking the judge to second guess the efforts
of Eagle Energy to use the belt as a means of discharging water.
Rather, we are asking the judge to consider whether the
operator, knowing the mine would be understaffed over the Labor
Day weekend, was reckless in deciding to rely solely on the yet
to be assembled belt to remove well documented excess water
accumulations in the escapeway. Apparently assuming that no
problems would arise during the complex operation of
reassembling the belt, Eagle Energy decided to forego any
alternative means of water removal, such as an additional
discharge line to the surface or to another section. But, as
complicated endeavors often do, difficulties arose and a day
and a half was lost (September 1 through the morning of
September 2) while Eagle Energy struggled with numerous
problems in reassembling and operating the belt. We find it
significant that during this day-and-a-half period, Eagle
Energy made no attempt to use other methods to remove the
excess water from the escapeway, such as reconnecting the
water discharge line or installing an additional discharge
line. The question here is not whether the judge failed to
consider as an aggravating factor the fact that Eagle Energy
was unsuccessful in preventing hazardous water accumulations.
The question is whether the judge failed to consider as
aggravating Eagle Energy's failure to have an alternative
method of discharging water readily available in case of
problems in assembling the belt and, when such problems arose,
its failure to use other methods to remove the excess water.
[9]: We conclude that the judge erred in considering as
a mitigating circumstance that only management personnel worked
at the mine over the Labor Day Weekend, from August 30 through
September 1. Under section 3(g) of the Mine Act, 30 U.S.C.
� 803(g), a miner is defined as "any individual working in a
coal or other mine" and includes both supervisory and
non-supervisory employees. Sec'y of Labor on behalf of Price
v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1532 (Aug. 1990).
Thus, the preeminent statutory concern of the Mine Act, the
health and safety of miners (30 U.S.C. � 801(a)), covers both
management personnel and rank-and-file employees. Accordingly,
we conclude that a violation of section 75.380(d)(1) is not
mitigated because it endangers management, as opposed to
rank-and-file, personnel.
[10]: Substantial evidence supports the judge's finding
that the Secretary did not demonstrate that the water
accumulations in the 10 Left escapeway noted in the weekly
examination books during August were the same as the water
accumulations in the escapeway cited on September 2. It is
undisputed that water accumulations could occur rapidly in the
mine. In addition, witnesses for the operator testified that
pumping had occurred in the escapeway up to August 31. Tr. IV
167-70; Tr. V 100-01. In light of these facts, we do not think
the operator's failure to note any remedial efforts in the
weekly examination books conclusively shows that no pumping
occurred or that the water accumulations before August 31 were
the same as those found on September 2. Commissioner Jordan,
concurring:
Although Eagle Energy was well aware that it had a
longstanding water accumulation problem in its escapeway, it
nonetheless made the deliberate decision to forego any means of
discharging water in order to facilitate its longwall move. Its
utter indifference to the safety concerns posed by the
considerable accumulation of water that plagued the mine is a
classic example of unwarrantable failure.
For the reasons stated below, I would reverse the judge's
finding that the escapeway violation was not the result of Eagle
Energy's unwarrantable failure. However, to avoid the effect of
a divided decision, which would allow the judge's finding to
stand, I join Commissioner Riley and Commissioner Beatty in
remanding this case for further consideration.
Eagle Energy does not dispute the judge's finding that it
had been on notice for a lengthy period of time regarding the
water accumulation problem it faced in its mine. This finding
is supported by substantial evidence. As Commissioner Riley and
Commissioner Beatty acknowledge, it had received seven water
accumulation citations in the escapeway between May and August
1997, which my colleagues correctly conclude constituted an
aggravating factor in terms of the unwarrantable failure
analysis. Slip op. at 10, citing Gov't Exs. 28-31, 38-40. Eagle
Energy's own weekly examination books indicated water
accumulations in the escapeway on August 15, 22, and 29. 21
FMSHRC 1235, 1242 (Nov. 1999) (ALJ). Its own witness, John
Christopher Adkins, Eagle Energy past president and the
director of production for Massey Coal Services (which had
provided technical services to Eagle Energy), testified that
"[t]his is a wet mine. This is the wettest mines [sic] I've
ever been in." Tr. IV 275.
In addition, Inspector Albert "Benny" Clark had discussed
the problem with mine officials on at least two occasions, July
10 and August 13. Tr. III 12-16, 25. Clark testified that
during his conversation in July, Jeff Bennett, Eagle Energy's
safety director, asked him not to issue a 104(d)(1) citation
and Stanley Edwards, Eagle's superintendent, told Clark that
"this would never happen again . . . if [he] changed it to a
104(a) citation." Tr. III 14. And yet, Edwards was wrong.
The water accumulation problem was not dissipated, despite his
promise, and the inspector found another accumulation in the
escapeway when he returned on September 2.
Moreover, in his deposition, Edwards admitted that, because
of other problems at the mine, the removal of water from the
escapeway was "real low on [its] priority list." Gov't Ex. 45 at
92 (Dep. Tr. of Stanley Edwards). The Commission has made clear
that when an operator has notice of a violation, the level of
priority it places on abatement is a proper factor to consider
in determining whether the violation was a result of
unwarrantable failure. Consolidation Coal Co., 22 FMSHRC 328,
333 (Mar. 2000), appeal docketed, No. 01-1228 (4th Cir. Feb.
21, 2001) ("Consol"). In fact, the attitude of the operator in
the Consol case, in which we reversed the judge's finding that
the violation was not the result of unwarrantable failure, is
strikingly similar to the nonchalance displayed by Eagle Energy.
In Consol, the operator failed to respond effectively to rectify
a violative condition (inadequate roof support) of which it was
aware. Id. at 332. Our rationale for reversing the judge in
Consol is apt in the instant case as well:
[O]nce Consol became aware that it was in
violation of the regulation and its roof
control plan, it was under an obligation to
expeditiously remedy the condition that gave
rise to the citation. Relegating the request
for additional posts to the routine supply
system so as not to interfere with production
was a conscious decision by mine management.
Attaching no special significance to an order
for materials necessary to bring the mine
into compliance with a mandatory safety
standard is an indication that this operator
should reexamine its priorities. . . . Taken
together, the company's actions reflect the
kind of indifference to a violation that
constitutes an unwarrantable failure to
comply with the regulation.
Id. at 333.
Commissioners Riley and Beatty agree that the judge's
finding that Eagle Energy was on notice of the need for greater
compliance efforts is supported by substantial evidence. Slip
op. at 10. Moreover, they agree that the Secretary has met her
burden of proving some of the other Mullins factors. Mullins &
Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994). For instance,
they agree that substantial evidence supports the judge's
finding that the accumulations were extensive. Slip op at 9-10.
Regarding abatement efforts, they recognize that Eagle Energy
"had no alternative means of pumping out the water until the
beltline was restarted . . . because it had chosen to disconnect
the converted discharge line in order to facilitate its longwall
move and because it chose not to run a discharge line to the
Mudlick Mains. Thus, the means to abate the water accumulations
. . . were within the operator's control but it chose not to use
them . . . ." Id. at 8. And yet, despite this acknowledgment,
my colleagues are reluctant to reverse the judge's determination
that the violation was not the result of unwarrantable failure.
Reversal is warranted based upon the factors discussed
above, and upon examination of the remaining Mullins factors. In
discussing the issue of danger, for example, my two colleagues
correctly conclude that the judge was wrong to consider as a
mitigating circumstance the fact that only management personnel
worked at the mine from August 30 through September 1. Id. at
10, n.9. Regarding this issue, the record compels only one
conclusion - that the accumulations had created a dangerous
condition. As the judge found, they were located in the primary
escapeway by which miners would escape in an emergency. 21
FMSHRC at 1239-40, 1244. They were large, extending up to 120
feet in length (id. at 1242), and ranging up to 15 or more
inches in depth (id.; Tr. III 209). They contained muddy water
and had slick, uneven bottoms. 21 FMSHRC at 1239, 1240, 1243,
1246. There were pieces of wood floating in the water, and coal
deposits and discharge lines sticking out of the water. 21
FMSHRC at 1242. Both Clark and MSHA supervisor Terry Price
testified that the accumulations posed a tripping hazard (Tr. II
201; Tr. III 218, 232), and Price stated repeatedly that "you
couldn't see the bottom" (Tr. III 211, 218). The potential
safety problems caused by these conditions were exacerbated,
according to assistant superintendent Harry Walker, who
testified (in agreement with Inspector Price), that there were
greater safety concerns during a longwall move. Tr. V 96.
The record also compels the conclusion that the water
accumulations were obvious. As I have noted, they were extensive
and occurred several times along the escapeway. In addition,
production director Adkins testified that he traveled along the
escapeway on September 1, the day before the accumulations were
cited. Tr. IV 177. Given that some of the accumulations were at
least 15 inches deep on the morning of September 2, and given
the rate of accumulation of approximately eight inches every 24
hours (21 FMSHRC at 1244-45), it should have been obvious to
Adkins when he traveled the escapeway on September 1 that the
accumulations were rapidly approaching hazardous conditions in
an area known for its chronic accumulation problems.
Regarding duration, the judge credited testimony by
production director Adkins, not challenged on review by Eagle
Energy, that water accumulated in the escapeway at depths of
approximately eight inches per day.[1] Id. Based on this
testimony, the water in the escapeway must have been permitted
to accumulate for approximately two days in order to have
reached the 15 inches depth on September 2. The water must
have reached several inches to a foot in depth on the previous
day when production director Adkins traveled along the
escapeway.[2] Tr. IV 177. Although it is not clear from the
record when the cited accumulations became violative, given the
chronic water problems in the escapeway and the rapidly growing
accumulations on September 1, the evidence compels the
conclusion that the operator knew for over a shift that the
water accumulations were either hazardous or rapidly
approaching hazardous conditions.
Despite this record evidence, my colleagues send the case
back to the judge. But I see no need for a remand when there is
agreement that the operator's conduct was highly negligent, that
several of the Mullins factors were satisfied, and that the
factors the judge found mitigating were either not mitigating
or, as in the case of abatement, were aggravating. Slip op. at
7-11.
In Jim Walter Resources, Inc., 19 FMSHRC 480 (Mar. 1997),
a case in which the record evidence was similarly compelling,
we reversed the judge's finding that three coal accumulation
violations were not the result of unwarrantable failure,
explaining that:
[o]ur review of this record as a whole -
particularly the undisputed evidence
regarding the prior warnings and the
extensive and obvious nature of the violation
- leads us to conclude that there is not
substantial evidence to support the judge's
finding that no aggravated conduct occurred.
In such a case, the proper course of action
is reversal, not remand.
19 FMSHRC at 489 n.8.
Notwithstanding the well-recognized role of the trial
judge as the initial finder of fact, the law is equally clear
that when the evidence supports only one conclusion, a remand
to the judge serves no purpose. See Am. Mine Servs., Inc.,
15 FMSHRC 1830, 1834 (Sept. 1993) (affirming judge's finding
of no unwarrantable failure, despite judge's error in not
addressing some of the Secretary's evidence). There are simply
instances when an appellate body, faced with a record as
staggering as the one in this case, need not prolong litigation
by insisting on a remand. See Walker Stone Co. v. Sec'y of
Labor, 156 F.3d 1076, 1085 n.6 (10th Cir. 1998) (court rejects
operator's contention that the Commission erred in not
remanding case when essential facts were not in dispute).[3]
The opinion of my colleagues Commissioners Beatty and
Riley has correctly established that Eagle Energy was highly
negligent and on notice of the need for greater compliance,
that the accumulations were extensive, and that the operator's
elimination of a way to pump water for three days was an
aggravating factor. Since I concur with these determinations,
this is now the law of the case. Given that the matter is
currently in this posture, and taking into account the
additional record evidence regarding danger, obviousness,
and duration, a remand to the judge on the question of
unwarrantable failure is simply not necessary. Looking at the
record as a whole, there is not substantial evidence to
support the judge's determination that no aggravated
conduct occurred.
The use of the unwarrantable failure 104(d)(1) order as
an enforcement tool was included in the Mine Act to remedy
precisely the type of scenario that occurred at the Eagle
Energy mine: an operator who is repeatedly warned, receives
multiple citations, and yet is still not motivated to cure a
safety problem. Eagle Energy's cavalier indifference to the
water accumulations at its mine constitutes aggravated
conduct.
For the reasons stated above, I would reverse the
decision of the judge and find that the violation was the
result of the operator's unwarrantable failure. Nonetheless,
to avoid a divided decision, I join in the opinion remanding
the case for further consideration.
Mary Lu Jordan, Commissioner
**FOOTNOTES**
[1]: Later in the hearing, Adkins tried to recant this
testimony by claiming the rate of accumulation was less than
eight inches per day. Tr. IV 226. I find that the judge
implicitly rejected his recantation by crediting his eight
inches per day testimony. 21 FMSHRC at 1244-45.
[2]: Adkins testified that the water in the escapeway on
September 1 was not in excess of his boot height. Tr. IV 177.
[3]: In Donovan v. Stafford Construction Co., 732 F.2d
954 (D.C. Cir. 1984), the court, in reversing the Commission's
decision finding no discrimination, considered the issue of
whether an operator had satisfied its burden of proving its
affirmative defense in a discrimination case, when neither the
judge nor the Commission had addressed the question.
Explaining that "[s]ince all the evidence bearing upon the
issue is contained in the record before us, . . . we believe
that a remand on this issue would serve no purpose. This is
particularly so in light of our ultimate holding that only
one conclusion would be supportable." Id. at 961.
Chairman Verheggen, dissenting:
For the reasons I set forth below, I would affirm Judge
Feldman's finding that Eagle Energy's S&S violation of section
75.380(d)(1) was not the result of the operator's unwarrantable
failure to comply with the standard. I therefore dissent from
my colleagues decision to remand the unwarrantable failure
question.
In determining that Judge Feldman properly found that the
Secretary failed to prove that Eagle Energy's violation of
section 75.380(d)(1) was unwarrantable, I am guided by several
well established principles. First is the fundamental principle
that the Mine Act imposes upon the Secretary the burden of
proving an alleged violation by a preponderance of the credible
evidence. Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(Nov. 1989). A logical corollary to this rule of law is that if
a judge finds such proof lacking, that is the end of the matter
- the judge is under no obligation to go any further.
Second is the substantial evidence test by which the
Commission is statutorily bound when reviewing an judge's
findings of fact. 30 U.S.C. � 823(d)(2)(A)(ii)(I); Wyoming Fuel
Co., 16 FMSHRC 1618, 1627 (August 1994). My colleagues state
that "substantial evidence" means "`such relevant evidence as a
reasonable mind might accept as adequate to support [the
judge's] conclusion,'" and that the Commission "must consider
anything in the record that `fairly detracts' from the weight
of the evidence that supports a challenged finding." Slip op.
at 7 n.4 (citations omitted). I note further that under the
substantial evidence test, the Commission may not "substitute
a competing view of the facts for the view [an] ALJ reasonably
reached." Donovan ex rel. Chacon v. Phelps Dodge Corp., 709
F.2d 86, 92 (D.C. Cir. 1983). As the Fourth Circuit explained
when overturning a Commission decision that had reversed a
judge's findings in a discrimination case:
The fact that evidence exists in the
record to support [the complainant's]
position is not determinative. Rather, the
Commission's review was statutorily limited
to whether the ALJ's findings of fact were
supported by substantial evidence. The
"`possibility of drawing two inconsistent
conclusions from the evidence does not
prevent an administrative agency's finding
from being supported by substantial
evidence.'"
Wellmore Coal Corp. v. FMSHRC, No. 97-1280, 1997 WL 794132, at
*3 (4th Cir. Dec. 30, 1997) (citations omitted).
Turning to the issue presented here on appeal, for the
reasons set forth below, I find that substantial evidence
supports the judge's unwarrantable failure determination.
Looking at all the relevant facts and circumstances of this
case, first, I note that as to duration, I agree with my
colleagues that the record does not support a finding one way
or the other as to how long the cited water accumulations
existed. See slip op. at 11. Thus, the Secretary failed to
meet her burden to show that the duration of the water
accumulation was an aggravating factor. I also find, however,
as do my colleagues, that substantial evidence supports the
judge's findings that the accumulations were extensive and
that Eagle Energy had notice of the need for greater
compliance efforts. See id. at 10.
I differ from my colleagues, however, in my consideration
of the judge's findings on mitigating factors. It is clear from
the record that Eagle Energy's management personnel were
anticipating using the belt to dewater the area of the mine
where they were installing the longwall. See 21 FMSHRC at 1240.
But they encountered serious problems with keeping the belt up
and running. It pulled apart at several locations when started
up on September 1. Id. Attempts to repair the belt that day
were unsuccessful. Id. An attempt to start up the belt during
the morning of September 2 was also unsuccessful. Id. It was
not until the afternoon of September 2 that the belt was
successfully repaired and available for use in dewatering the
mine. See 21 FMSHRC at 1243.
I find the problems Eagle Energy encountered with its
primary mode of dewatering the mine the single most important
mitigating factor presented by this record, in addition to the
fact that the operator was making every effort to repair the
belt. With the benefit of hindsight, it is easy for my
colleagues to speculate that "the operator could have run an
additional discharge line to the surface" or "could . . . have
reassembled the beltline and had it in operating condition
before it reconverted the discharge line back to a fresh water
line." Slip op. at 8. Certainly, in retrospect the operator's
reliance on the belt to dewater the mine was misplaced. But
this is clear only in retrospect. In light of the operator's
efforts to get the belt running, it is hardly fair to ask the
judge to second guess their efforts on remand. I find that
Eagle Energy's efforts support the judge's conclusion that the
operator's conduct, though negligent, did not rise to the level
of reckless disregard.
Further, I find the judge's decision reasonable in light
of the fact that the mine was understaffed at the time the
water accumulated. I disagree with my colleagues' conclusion
that "the judge erred in considering as a mitigating
circumstance that only management personnel worked at the mine
over the Labor Day Weekend" because the violation "is not
mitigated because it endangers management, as opposed to
rank-and-file [miners]." Id. at 10 n.9. I believe my colleagues
miss the point, which is that at the time the water accumulated,
there was a shortage of workers in the mine, and thus fewer
miners available to bring up the belt. The shortage of workers
could only have been exacerbated by the confusion and strain
on resources created by the roof fall that occurred soon before
the cited violation. 21 FMSHRC at 1249-50.
In sum, I conclude that a reasonable trier of fact could
conclude from this record that Eagle Energy's violation of
section 75.380(d)(1) was not the result of the operator's
unwarrantable failure. I recognize, of course, that the
operator's actions were negligent. But the record provides
support for a finding - a judgment call - that its negligence
was not aggravated. Our obligation is to uphold such judgment
calls, not second guess them. Accordingly, I would affirm the
judge's decision.
Theodore F. Verheggen, Chairman
Distribution
David J. Hardy, Esq.
Maris E. McCambley, Esq.
Jackson & Kelly, PLLC
P.O. Box 553
Charleston, WV 25322
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Administrative Law Judge Jerold Feldman
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041