consonant with the plain meaning of “disregard.” Moreover, any disregard for or ignoring of
safety must be “conscious” — that is, knowing. Therefore, the actor must
knowingly/subjectively ignore or pay no attention to safety concerns.

These myriad decisions demonstrate that jurisdictions define gross negligence as the
absence of even a slight degree of care and many jurisdictions consider reckless disregard to
require a higher showing of culpability than gross negligence. Unlike MSHA’s definition of
other degrees of negligence, there is overwhelming support in the law for MSHA’s definition of
reckless disregard. I find no reason not to use the Part 100.3 standard of reckless disregard as the
Commission standard. Moreover, nothing changes regarding the ultimate outcome of this case if
we use the majority’s definition, especially when it appears the only reason to do so is to reverse
the Judge’s finding.

B. The Majority’s Legal Analysis Misrepresents and Disregards Commission
Precedent to Reach the Majority’s Desired Result.

Rather than finding substantial evidence does not support the Judge’s decision, the
majority find the Judge’s “negligence determinations are legally invalid.” Slip op. at 7. They do
not discuss meaningfully the totality of the evidence but summarily declare the totality of actions
“meaningless.” Id. at 10.5

The majority first notes the duty of mine management. Unaccountably, in doing so, they
fail to note that the Judge specifically recognized and took into account the duty of foremen
regarding safety. 38 FMSHRC 2782, 2799 (Nov. 2016) (ALJ). Therefore, the majority is
reciting an element that the Judge took fully into account. The fact that he considered the point
cuts in favor of affirmance. Further, although Wetzel certainly was a manager, he was a
“manager” in the sense of being the head of a tiny three or four person crew on a night shift. The
majority quotes Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987), in which the Commission
drew an important distinction between mine management and less senior supervisors. Slip op. at
8-9. The Commission stated, “Managers and supervisors in high positions must set an example
for all supervisory and non-supervisory miners working under their direction.” Wilmont, 9
FMSHRC at 688.

4 Disregard is “[t]o ignore or treat as unimportant; to pass by as undeserving of notice.”
Disregard, Black’s Law Dictionary 573 (10th ed. 2014); see also Random House Dictionary of
the English Language 569 (2d ed. 1987) (“to pay no attention to; leave out of consideration;

ignore”).

5 My colleagues and I are professional attorneys. To the best of my knowledge, none of
us has any educational, professional, or meaningful experiential background in actual mining
processes, let alone the dynamic conditions of an anthracite mine. Yet, the majority feels
qualified to opine authoritatively that meeting and discussing the situation with the entire crew,
surveying the surface areas for stability, using lights, planning a route of entry and exit,
minimizing the duration of any exposure, etc., are “meaningless.” Slip op. at 10.

20


Acting Chairman Althen, dissenting:

I would not find the Judge made legal errors as asserted by the Secretary and found by
my colleagues. Even had he made the asserted errors, substantial evidence supports the Judge’s
decision, and the Judge’s penalty assessment does not constitute an abuse of discretion. I
respectfully dissent.

I. Substantial Evidence Supports the Judge’s Negligence Finding.

The Mine Safety and Health Administration (“MSHA”) alleged reckless disregard based
upon its definition in 30 C.F.R. § 100.3(d) Table X. There, MSHA defines “reckless disregard”
as “the operator displayed conduct which exhibits the absence of the slightest degree of care.”
Id. This is a classic and completely acceptable definition of reckless disregard. After reviewing
the evidence, the Judge found the Secretary had not proved an absence of the slightest degree of
care. He found high negligence.

The Commission reviews a Judge’s negligence determination under the substantial
evidence standard. Leeco, Inc., 38 FMSHRC 1634, 1636-37 (July 2016); Jim Walter Res., Inc.,
36 FMSHRC 1972, 1976 (Aug. 2014). The majority does not address directly whether
substantial evidence supports the Judge’s decision. Instead, it focuses upon alleged legal errors.
Our duty in this case, therefore, is two-fold. First, we must consider the legal errors asserted by
the Secretary. Second, if errors occurred, we must decide whether such errors are sufficient to
affect the outcome of the case. Cf Smolen y. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)
(reviewing first for legal error, then for substantial evidence). “Substantial evidence is relevant
evidence that a reasonable mind would accept as adequate to support the [Judge’s] conclusion.”
Craig v. Apfel, 212 F.3d 433, 435 (8th Cir. 2000).'

Further, “[iJn determining whether existing evidence is substantial, we consider ‘evidence
that detracts from the [Judge’s] decision as well as evidence that supports it.’” Prosch v. Apfel,
201 F.3d 1010, 1012 (8th Cir. 2000) (quoting Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.
1999)). However, “[w]e may not reverse the [Judge’s] decision merely because substantial
evidence” exists in the record that would have supported a contrary outcome. Jd.

A Judge is not required to discuss all the evidence submitted, and a failure to cite specific
evidence does not indicate that the Judge did not consider that evidence. Craig, 212 F.3d at 436.
Importantly, therefore, we must consider all the evidence in evaluating a decision for substantial
evidence purposes.

The operator, through its supervisor Wetzel, erred in sending a miner into the pit in an
effort to free the bucket. The seriousness of the error springs not only from the level of danger to
the miner but also, and perhaps more so, because it was not necessary to retrieve the bucket
immediately through exposure of a miner to a potentially fatal situation. After the event was
over and management learned of it, mine management responded quickly and aggressively to

' The Secretary suggests that the Commission just go ahead and assess the penalty
proposed by MSHA. I concur with the majority’s rejection of that approach.

14


Similarly, the majority’s citation to BethEnergy Mines, Inc., 14 FMSHRC 1232 (Aug.
1992), does not support its position. The majority states that “the Commission has concluded
that the fact that a hazardous area was examined before it was entered did not reduce negligence
because the exam ‘did not eliminate the risk . . . but rather served to measure the risk
presented.’” Slip op. at 10 (quoting BethEnergy, 14 FMSHRC at 1244). In this curt summation,
however, the majority omits key facts and context from the case.

The violation was for entering a dangered off area for reasons other than elimination of
the hazard. 14 FMSHRC at 1236. In that context, the Commission stated:

The fact that [an acting construction foreman] examined the area
before the cars were brought through it does not reduce
BethEnergy’s conduct to “moderate negligence,” as argued by the
operator (BE Br. at 34-35). The examination did not eliminate the
risk posed by the unsaddled beams but rather served to measure the
risk presented. Such deliberate conduct is appropriately
characterized as a knowing neglect of the actions required by
section 75.303(a).

Id. at 1244. Section 75.303(a), at that time, stated that “[n]o person other than an authorized
representative of the Secretary or a State mine inspector or persons authorized by the operator to
enter such place for the purpose of eliminating the hazardous condition therein, shall enter [a
hazardous place while a danger sign] is . . . posted.” Jd, at 1232 n.1 (quoting 30 C.F.R.

§ 75.303(a)) (emphasis omitted). The violation, therefore, was for entering a hazardous place
while a danger sign is posted. Examining the area, therefore, was not relevant to the standard
and did not eliminate the risk of entering the area.

The Commission did not hold, as the majority misinterprets, that examining the area did
not “reduce negligence.” Indeed, the majority’s misinterpretation is complicated by the fact that
negligence was not even before the Commission: the Commission’s statement in BethEnergy
was made in the context of the unwarrantable failure analysis in which the Commission affirmed
the Judge’s unwarrantable failure finding. In BethEnergy, the Commission concluded that
examination of a hazardous area does not negate an unwarrantable failure designation when the
violation was for entering the area for a purpose other than to correct the hazardous condition,

stop production to correct the dangerous condition it had allowed
to persist indicated how negligent Mach had been. Upon turning
off the belt, Mach took no further step to clean up the
accumulations.

Mach, 809 F.3d at 1265 (emphasis in original).

24


Lehigh and Wetzel challenged the citations, the special findings in the citations, and the
penalty amounts. The matter proceeded to hearing.

B. The Judge’s Decision

The Judge affirmed the violation of section 77.1006(a), concluding that Lehigh violated
the standard by permitting Osenbach to work near or under a dangerous highwall and bank.® 38
FMSHRC at 2793-95. The Judge found that the highwall on the north side of the pit was
“cracked and contained unconsolidated material that could fall at any time on a miner below.”
Id. at 2794. He further concluded that the spoil banks on the south side had been undercut and
posed a falling hazard. The Judge found that the coal seam on the south side was “cracked and
fractured,” and that there was between a few hundred pounds and 10 tons of coal still hanging at
the time Osenbach entered the pit. Jd. at 2794, 2797. He stated that the two collapses from this
coal seam a few hours earlier “not only indicated a high risk of further collapse, but also
removed much of the lateral support for the remaining coal and spoil pile that had yet to fall” and
therefore increased the risk of another fall. Jd. at 2794. The Judge credited testimony that the
limited space in the pit ensured that Osenbach would inevitably be near, if not under, those
dangerous conditions. He concluded that Osenbach traveled to the bottom of the pit, and that the
crow’s foot that he reached was within 10 feet of both the northern highwall and southern bank
hazards. Id. at 2794-96.

The Judge also determined that Lehigh’s violation of section 77.1006(a) was S&S and
had been caused by an unwarrantable failure. In concluding that the violation was S&S, the
Judge found that it was “more than reasonably likely that material could have fallen from the
highwall, spoil bank, or coal seam while Osenbach was down in the pit,” that it was “highly
likely that an injury would have occurred,” and that any injury “could have reasonably been
expected to be fatal.” Jd. at 2795, 2797. The Judge based his unwarrantable failure
determination in part on findings that the cited conduct posed a high degree of danger which was
known and obvious to Lehigh. Jd. at 2797-99.

Furthermore, the Judge held that Wetzel had authorized the violation of section
77.1006(a) within the meaning of section 110(c) of the Mine Act. Jd. at 2800-01. He reasoned
that Wetzel had admitted that it was his decision to send Osenbach into the pit, that the hazards
in the pit were obvious, and that Wetzel had acknowledged that there was a level of risk in
sending Osenbach into the pit by stating that there was a “moderate” level of risk and a
“somewhat likely possibility . . . of some of the rocks coming down into the pit if someone was
in there.” Id.

5 The Judge also affirmed the violation alleged in Citation No. 8000959, concluding that
the operator violated section 77.1710(g) because Osenbach failed to wear a safety belt or line
where there was a danger of falling. 38 FMSHRC at 2802-03. The Judge further determined
that this violation was S&S and had been caused by moderate negligence. Jd. at 2803-04. The
Judge’s findings regarding this citation are not at issue on appeal. PDR at 13 n.3.

5


Clearly, Wetzel was not mine management; he was in the category of lower level
supervisors for whom the Commission in Wilmot Mining Company said mine management must
set an example. Actual mine management set an example for him, other supervisors, hourly
workers, and other operators’ management by responding quickly and aggressively to the event.
This is not to imply that foremen do not have a duty to exercise a high degree of care. It is
merely to point out that emphasizing the duty of mine management is not meaningful in this case
where the Judge factored Wetzel’s status into his decision and mine management actually was
proactive.

In turning to the more substantive part of the majority’s decision, their explanation
presents different twists on the same argument. The majority finds that Wetzel’s willingness to
enter the pit did not mitigate the hazard. Slip op. at 9. They say that Wetzel’s
“misunderstanding” of the hazard and “subjective” belief that it was safe to use the procedure to
connect the chain to the bucket did not “mitigate” the hazard. Id. at 9-10. Although somewhat
ambiguous, they also appear to state that actions taken to deal with a hazard do not “mitigate”
negligence if those measures are not successful. Jd. at 10-11.

An error common to these assertions is that they take the Judge to task for alleged
“mitigation” findings he did not make. The Judge did not find that Wetzel’s willingness to enter
the pit, his belief, or his actions “mitigated” negligence. Nowhere in the decision did the Judge
find mitigation. Instead, he cited facts to support his conclusion that Wetzel did not manifest an
absence of a degree of care or, in the words the majority would prefer, a conscious disregard for
the safety of the crew. Essentially, the Judge found that Wetzel’s judgment was badly flawed
and his conduct was highly negligent, but that Wetzel did show a degree of concern or care for
the miners or, stated differently again, that he actually showed a conscious degree of care or
regard for safety. The absence of a “mitigating” factor does not prove the Judge erred or that
Wetzel or the operator exhibited reckless disregard.°

® | do not agree with the majority’s applying a new definition on appeal, and I do not
think the new definition differs significantly, if at all, from section 100.3. As demonstrated, the
long-used definition is a standard and acceptable one. However, MSHA’s definitions of ordinary
and higher negligence do differ markedly from the Commission’s definition. MSHA defines all
negligence as “high” negligence unless there is a mitigating factor. The Commission allows a
finding of high negligence if, and only if, the Judge finds “an aggravated lack of care that is more
than ordinary negligence.” American Coal Co., 38 FMSHRC 2062, 2084 (Aug. 2016) (quoting
Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)). These are obviously inconsistent
approaches. We may aptly summarize the proper consideration of negligence as follows:

1. Taking into account the totality of the evidence, has the Secretary proved by a
preponderance of the evidence that the operator did not take the actions that a reasonably
prudent operator would have taken under the same or similar circumstances? If so, then
the operator was negligent. If the operator acted prudently, then the operator was not
negligent.

21


The term “gross negligence” appears once. That is in section 116 of the Act, which
provides for certain limitations on liability. The section provides the limitations “shall not apply
where the action that is alleged to result in the property damages or injury (or death) was the
result of gross negligence, reckless conduct, or illegal conduct ....” 30 U.S.C. § 826(a). The
same section 116 also contains the only Mine Act usage of the term “reckless conduct.”
Placement of that term in the same section with, and after, gross negligence must indicate that
Congress considered reckless conduct a step beyond gross negligence bordering upon illegal
conduct. The only other usage of the term “reckless” in the Mine Act is in the flagrant violation
provision in section 110. 30 U.S.C. § 820(b)(2).

The absence of the terms “reckless disregard” or “high negligence” and the sparing use of
reckless or even negligent highlight that the terms upon which this case appears to turn are
completely drawn from MSHA’s penalty regulation at 30 C.F.R. § 100.3 rather than the Mine
Act. There, they appear only for the purpose of assigning penalty points that result in substantial
point changes under regular penalty regulations depending upon placement of negligence in a
predefined category. The regulation assigns 35 points for high negligence, while reckless
disregard adds an additional 15 penalty points to a total of 50 negligence points to the penalty
calculation. 30 C.F.R. § 100.3(d). In every case, 15 additional penalty points substantially
increases the penalty. When the other points reach a significant level in the range of 110 points,
the additional 15 points begins to increase the MSHA assessment by tens of thousands of dollars.
See 30 C.F.R. § 100.3(g).

The use of general categories of negligence obviously is helpful, but it does not permit us
to ascertain where the Judge placed the negligence along the broad spectrum. Certainly, the
Judge found Wetzel’s conduct severely lacking in ordinary care. Therefore, regarding a
continuum, his view appears to place the negligence only a short step below reckless because
Wetzel exercised some care. Accordingly, the majority’s change in terminology may perhaps be
only a small nudge on the continuum in this case.

The majority has not reversed any of the Judge’s factual findings. Thus, the Judge may
continue to take into account the entirety of Wetzel’s actions, including his meeting with the
crew before acting, in assessing a penalty against him and the operator. Indeed, the majority
permits or even urges the Judge to take into account the exceptional response by management
into account is assessing the penalty. This is especially true, given that the Commission
previously has found, albeit incorrectly in my view, that “deterrence” is a relevant factor that
Judges may consider separately from the statutorily-prescribed criteria in assessing penalties.
See Black Beauty Coal Co., 34 FMSHRC 1856, 1864-69 (Aug. 2012).13

If that is true, then the principle must work to permit a lowered assessment. Prior to
involvement by MSHA, the operator acted aggressively to deter similar errors in the future.

3 T look forward to the day when the Commission explicitly overrules its unfounded
departure from the terms of the Mine Act in the Black Beauty Coal Company case. However, if
a consideration outside the statutory criteria may influence the penalty, such factor may also
assert a downward influence.

27


liability for an unwarrantable failure.® By focusing on whether Wetzel had an objective or
subjective belief that descent into the pit was safe, the majority misinterprets the relevance of
Wetzel’s mental state to a finding of reckless disregard, especially since the majority prefers to
make Wetzel’s conscious refusal to care about safety a necessary element of the accusation.

As we have seen, when courts consider the higher levels of culpability such as gross
negligence and reckless disregard, the mental state of the actor becomes an increasingly
important consideration. The mental state of the actor is critical in the sense of whether the actor
showed a degree of care for the safety of others: Did the actor consider safety and, if so, did he
simply disregard the danger, showing that he disregarded the results of his actions upon worker
safety? On the other hand, did he take steps demonstrating that he had a regard for safety?

Thus, as I have repeatedly and even tediously said, the issue regarding reckless disregard
is whether the actor showed any degree of care or regard for safety. See, e.g., Lascola v. Barden
Miss. Gaming LLC, 349 F. App’x 878, 886 (Sth Cir. 2009) (“Reckless disregard is generally
‘accompanied by a conscious indifference to consequences, amounting almost to a willingness
that harm should follow.’” (emphasis added) (quoting Maye v. Pearl River Cty., 758 So. 2d 391,
394 (Miss. 1999))); City of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006)
(“Because ‘conscious indifference’ and ‘reckless disregard’ are not defined in the statute, we
give each its ordinary meaning. We have often interpreted these terms to require proof that a
party knew the relevant facts but did not care about the result.” (emphasis added) (citation
omitted)).

The majority does not cite persuasive precedent. In Mach Mining, LLC y. Sec’y of Labor,
809 F.3d 1259, 1265 (D.C. Cir. 2016), cited by the majority, slip op. at 10, the circuit court
found the Administrative Law Judge reasonably concluded that the pre-violation conduct
actually showed persistent negligence by the operator because the operator took no further steps
to prevent the accumulation. Thus, the circuit court did not hold that whenever a violation
occurs the operator must have been negligent. Indeed, the operator’s actions were relevant and
enhanced the finding of negligence.?

§ When an operator acts with an objectively reasonable belief that its actions were safe
and in compliance with the law and regulations, it has not engaged in aggravated conduct
constituting an unwarrantable failure.

° The majority’s phrasing puts the words of the Administrative Law Judge into the
mouth of the circuit court and misses the key point that the prior actions served to prove
negligence. The relevant passage is as follows:

Further, the ALJ could reasonably conclude that Mach’s decision
to turn off the main belt no more served to show that it was not
highly negligent. Shutting off the main belt “neither prevented nor
corrected the hazardous condition.” Mach Mining, 36 FASHRC
at 2543. Instead, the ALJ concluded, the fact that Mach needed to

23


Other courts find reckless disregard is a step beyond gross negligence. See, e.g., Saba v.
Compagnie Nationale Air France, 78 F.3d 664, 668 (D.C. Cir. 1996) (“There is a continuum that
runs from simple negligence through gross negligence to intentional misconduct. Recklessness,
or reckless disregard, lies between gross negligence and intentional harm.”); Doe v. Boy Scouts
of Am. Corp., 147 A.3d 104, 120 (Conn. 2016) (“More recently, we have described recklessness
as a state of consciousness with reference to the consequences of one’s acts. ... It is more than
negligence, more than gross negligence.” (quoting Doe v. Hartford Roman Catholic Diocesan
Corp., 119 A.3d 462, 483 (Conn. 2015)) (alteration in original).

Some authorities virtually equate reckless disregard with intentional misconduct, finding
reckless disregard is close to an intentional wrongdoing. See, e.g., Mandolidis v. Elkins
Industries, Inc., 246 S.E.2d 907, 913 (W. Va. 1978) (“[West Virginia law] recognizes a
distinction between negligence, including gross negligence, and wilful, wanton, and reckless
misconduct. The latter type of conduct requires a subjective realization of the risk of bodily
injury created by the activity and as such does not constitute any form of negligence.”).

Nowhere in this array of cases is there a suggestion that failing to act as a reasonably
prudent person under similar circumstances — the definition of ordinary negligence —
demonstrates reckless disregard. Indeed, jurisdictions using a “conscious disregard” standard
often use absence of a slight degree of care as the touchstone of conscious disregard. See, e.g.,
Ave. CLO Fund, 723 F.3d at 1300 (“New York law defines gross negligence as ‘conduct that
evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing,’ or ‘the
failure to exercise even slight care.’” (citations omitted)); District of Columbia v. Walker, 689
A.2d 40, 44 (D.C. 1997) (defining gross negligence generally as “[t]he failure to exercise even
slight care,” and gross negligence under a qualified immunity statute as requiring “such an
extreme deviation from the ordinary standard of care as to support a finding of wanton, willful
and reckless disregard or conscious indifference for the rights and safety of others.” (citation
omitted) (alteration in original)); Cf Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d
623, 630-31 (Mo. 2013) (en banc) (stating that a showing of reckless disregard requires evidence
that the defendant “knew of the defect and danger of the product and, by selling the product,
showed complete indifference to or conscious disregard for the safety of others.” (emphasis
added) (citations omitted)).

The case law is legend. In California, “gross negligence” is defined as either the “want of
even scant care or an extreme departure from the ordinary standard of conduct.” Van Meter v.
Bent Constr. Co., 297 P.2d 644, 648 (Cal. 1956); Franz v. Bd. of Med. Quality Assurance, 642
P.2d 792, 798 (Cal. 1982) (en banc). Kentucky requires more than a showing of failure to
exercise slight care to find gross negligence: As to gross negligence, this claim requires
“something more than the failure to exercise slight care. We have stated that there must be an
element either of malice or willfulness or such an utter and wanton disregard of the rights of
others as from which it may be assumed the act was malicious or willful.” City of Middlesboro
v. Brown, 63 8.W.3d 179, 181 (Ky. 2001). Gross negligence requires “‘first a finding of failure
to exercise reasonable care, and then an additional finding that this negligence was accompanied
by wanton or reckless disregard for the lives, safety or property of others.’” Robbins v. New

18


negligence determinations. See, e.g., DQ Fire & Explosion Consultants, Inc., 36 FASHRC
3090, 3097 (Dec. 2014); Mach Mining, LLC, 36 FMSHRC 1525, 1527 (June 2014).

In this case, the Judge correctly determined that the exception for “good faith” errors did
not excuse the unwarrantable nature of Lehigh’s violation of section 77.1006(a). He determined
that Wetzel’s belief that the violative conduct was safe was not reasonable given the obvious
nature of the danger presented. 38 FMSHRC at 2799. Wetzel’s unreasonable belief is similarly
unavailing in mitigating the negligence determination for penalty purposes. Not only was the
belief unreasonable, it disregarded what the Judge himself characterized as an “obvious” danger
“highly likely to result in a fatal injury to a miner.” Jd. at 2797-99.

The subjective “genuineness” of Wetzel’s belief does not override the requirement that a
good faith belief must be objectively reasonable. As noted, the Commission applies an
objective, rather than a subjective, standard of care and considers what actions would have been
taken by a reasonably prudent person under the same circumstances. Thus, even accepting the
Judge’s factual finding that Wetzel did not appreciate the obviously high degree of risk present, a
reasonably prudent person in his position would have done so. See, e.g., id. at 2798 (finding that
miner’s statement that Wetzel should not enter the pit because he had a wife and children, even if
“made half in jest as the Respondent argues, . . . [is] in part a recognition of the high level of
danger associated with the retrieval effort and that Wetzel should have understood this.”).

We further conclude that the Judge erred with respect to his third rationale for his
negligence determination. In order to reduce the level of negligence, the operator’s actions
would have to correct the hazardous condition. For instance, the D.C. Circuit has stated that a
Judge reasonably concluded that an operator’s actions that “neither prevented nor corrected the
hazardous condition” did not amount to a factor mitigating high negligence. Mach Mining, LLC
v. Sec’y of Labor, 809 F.3d 1259, 1265 (D.C. Cir. 2016) (emphasis in original). Similarly, the
Commission has concluded that the fact that a hazardous area was examined before it was
entered did not reduce negligence because the exam “did not eliminate the risk . . . but rather
served to measure the risk presented.” BethEnergy Mines, Inc., 14 FMSHRC 1232, 1244 (Aug.
1992).

The actions that were taken to reduce the hazards for Osenbach as he twice entered the pit
were effectively meaningless in terms of realistically reducing those hazards. Nor did the actions
demonstrate a real attempt to comply with the standard’s directive. As part of the retrieval plan,
the area was illuminated by the dragline and viewed to see if material was moving, Osenbach
attempted to keep his distance from the highwall and to minimize his time in the pit, and the
dragline operator was provided with a horn to alert Osenbach if conditions became more
hazardous. See n.6, supra. However, the Judge credited testimony that the lighting was
inadequate for illuminating large portions of the pit (38 FMSHRC at 2796-97), and that, given
the pit’s configuration and where he traveled, Osenbach would inevitably be exposed to the
highwall, the spoil bank and the coal seam hazards (id. at 2794-95), which is expressly

10


assigned to each of the section 110(i) factors. Jim Walter Res., Inc., 36 FMSHRC 1972, 1979-80
(Aug. 2014) (“JWR”). “Rather, ‘Judges have discretion to assign different weight to the various
factors, according to the circumstances of the case.” Id. at 1979 (citations omitted).

MSHA’s regulations at 30 C.F.R. Part 100 address how MSHA calculates most proposed
penalties in light of the section 110(i) factors applied by the Commission in the assessment of
penalties. With respect to negligence, “MSHA has adopted a formulaic approach, categorizing
negligence into five different levels from ‘no’ negligence to ‘reckless disregard,” based on the
existence of a mitigating circumstance, or multiple such circumstances, for the violation.” Brody
Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015) (citations omitted).

MSHA defines “reckless disregard” to mean that the “operator displayed conduct which
exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d).

Commission Judges are not bound in any way by the definitions in Part 100 when
considering an operator’s negligence. Brody, 37 FMSHRC at 1702. Rather, a Judge “may
consider the totality of the circumstances holistically.” Jd. Nor was the Judge required to use
MSHA’s penalty point system in his penalty assessment. JWR, 36 FMSHRC at 1980 (citations
omitted) (“In determining the amount of a penalty, neither the Judge nor the Commission is
restricted by the penalty proposed by the Secretary.”). The Judge’s decision properly
acknowledged this principle and correctly articulated the appropriate framework for determining
negligence under the Act. 38 FMSHRC at 2790-91.

In analyzing Wetzel’s negligence, however, the Judge noted the Secretary’s definition of
“reckless disregard,” 38 FMSHRC at 2800 n.7, and determined that Lehigh’s and Wetzel’s level
of negligence was high rather than reckless for three reasons. First, he concluded that Wetzel’s
willingness to enter the pit himself showed a failure to properly evaluate the obvious safety risks
around him rather than a reckless indifference to the safety of Lehigh employees. Second, he
reasoned that Wetzel had a genuine misunderstanding of the hazards present, although Wetzel’s
belief was not reasonable. Third, the Judge explained that the efforts taken to ensure that
Osenbach stayed away from the longwall and did not linger in the pit demonstrated some degree
of care to comply with the standard, although those efforts were “wholly inadequate.” 38
FMSHRC at 2800.

The Judge’s rationales for his negligence determinations are legally invalid.

In analyzing an operator’s degree of negligence, the Commission has recognized that
“fe]ach mandatory standard ... carries with it an accompanying duty of care to avoid violations
of the standard, and an operator’s failure to meet the appropriate duty can lead to a finding of
negligence if a violation of the standard occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan.
1983). In determining whether an operator met its duty of care, we consider what actions would
have been taken under the same circumstances by a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purpose of the regulation. Brody, 37
FMSHRC at 1702 (citations omitted); U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).


Finally, the Judge concluded that Lehigh’s and Wetzel’s violative conduct resulted from
“high negligence” rather than “reckless disregard,” as alleged by MSHA, because Wetzel had
been willing to go into the pit himself, Wetzel had a genuine misunderstanding regarding the
hazards presented by the conditions, and some efforts had been undertaken to minimize
Osenbach’s exposure to hazards while in the pit. /d. at 2800, 2801. The Judge assessed
penalties of $6,996 and $1,000 against Lehigh and Wetzel, respectively, rather than the penalties
of $23,229 and $2,900 proposed by the Secretary.

The Secretary filed a petition for discretionary review challenging the Judge’s negligence
determinations and assessment of penalties, which we granted.

IL.

Disposition

The Secretary argues that the Judge’s conclusion that MSHA failed to establish reckless
disregard is legally invalid and that the evidence of record and the Judge’s own factual findings
support such a determination. Lehigh and Wetzel did not file a cross-petition challenging any of
the Judge’s legal determinations and request that the Judge’s decision be affirmed.

We accept as undisturbed the Judge’s factual findings and credibility determinations and
review his negligence holdings based on those findings.’ According to the Judge’s findings,
foreman Wetzel authorized Osenbach to enter the pit in circumstances that posed a high risk of
fatal injuries to Osenbach -- not once but twice -- to attempt to avoid delays in production. 38
FMSHRC at 2785, 2795, 2797. Such findings support only one conclusion -- that Wetzel
recklessly disregarded Osenbach’s safety, both as to Lehigh’s violation of section 77.1006(a) and
Wetzel’s knowing authorization of that violation as Lehigh’s agent.

Section 110(i) of the Mine Act authorizes the Commission to assess civil penalties for
violations under the Act and its implementing regulations, and includes negligence as one of the
six factors the Commission is required to consider in so assessing a penalty.'” The Commission
has recognized that in assessing a civil penalty, there is no requirement that equal weight be

° The respondents’ statement of facts in their brief includes many facts that conflict with
the Judge’s factual findings. Contrary to their statement of facts, however, Lehigh and Wetzel
ultimately acknowledged in their brief that the Judge’s “findings were not legally erroneous,
contrary to law or unsupported by substantial evidence,” and that the Judge’s credibility
determinations were entitled to deference. Resp. Br. at 15, 19.

10 The six statutory factors the Commission must take into account in assessing a penalty
are: (1) the operator’s history of previous violations; (2) the appropriateness of such penalty to
the size of the business of the operator charged; (3) whether the operator was negligent; (4) the
effect on the operator’s ability to continue in business; (5) the gravity of the violation; and (6) the
demonstrated good faith of the operator charged in attempting to achieve rapid compliance after
notification of a violation. 30 U.S.C. § 820(i).


Cingular Wireless PCS, LLC, No. CV 5:15-71, 2016 WL 1089252, at *4 (E.D. Ky. Mar. 18,
2016) (quoting Brown, 63 S.W.3d at 181), aff'd, 854 F.3d 315 (6th Cir. 2017). Or, as the
Supreme Court of Louisiana has defined the terms, “‘Reckless disregard’ is, in effect, ‘gross
negligence.’ Gross negligence has been defined by this court as ‘the want of even slight care and
diligence. It is the want of that diligence which even careless men are accustomed to exercise.””
Lenard v. Dilley, 805 So.2d 175, 180 (La. 2002) (citation omitted).

Authorities that equate “reckless disregard” with a failure to use the slightest degree of
care are on the mark. The United States Supreme Court, quoting the Supreme Court of Vermont,
has applied the following definition of gross negligence in a diversity jurisdiction case:

Gross negligence is the equivalent to the failure to exercise even a
slight degree of care. . . . But it falls short of being such reckless
disregard of probable consequences as is equivalent to a willful
and intentional wrong.

Conway v. O’Brien, 312 U.S. 492, 495 (1941) (quoting Shaw v. Moore, 162 A. 373, 374 (Vt.
1932) (adopting Massachusetts’ gross negligence definition)). See also, e.g., Saba, 78 F.3d at
668; Boy Scouts of Am. Corp., 147 A.3d at 120; Mandolidis, 246 S.E.2d at 913; IPSCO Tubulars,
Inc. v. Ajax TOCCO Magnathermic Corp., 779 F.3d 744, 752 (8th Cir. 2015) (“Gross negligence
is ‘the failure to use even slight care.”” (quoting Spence v. Vaught, 367 S.W.2d 238, 240 (Ark.
1963))) (applying Arkansas law); Ave. CLO Fund, 723 F.3d at 1300; Sundance Partners, Ltd.,
2017 UT 54, § 35; Ambrose v. New Orleans Police Dept. Ambulance Serv., 639 So. 2d 216, 219
(La. 1994) (“Gross negligence has been defined as the ‘want of even slight care and diligence”
and the “want of that diligence which even careless men are accustomed to exercise.”” (quoting
State v. Vinzant, 7 So. 2d 917, 922 (La. 1942))); Colby v. Boyden, 400 S.E.2d 184, 189 (Va.
1991) (“[G]ross negligence is the ‘absence of slight diligence, or the want of even scant

care’. ...” (quoting Frazier v. City of Norfolk, 362 S.E. 2d 688, 691 (Va. 1987))). In Texas,
gross negligence requires proof of an objective element and a subjective element: “For the
subjective element, [a defendant] must have ‘actual, subjective awareness of the risk involved
and choose to proceed in conscious indifference to the rights, safety, or welfare of others.’”
Miller v. Mullen, 531 S.W.3d 771, 779-80 (Tex. Ct. App. 2016) (quoting Burleson v. Lawson,
487 S.W.3d 312, 322 (Tex. Ct. App. 2016)). Under that standard, a “plaintiff must show that the
defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care.”
Miller, 531 S.W.3d at 780 (quoting Turner v. Franklin, 325 8.W.3d 771, 782 (Tex. Ct. App.
2010)).

From the foregoing, it appears that the majority has consciously disregarded the
definitions of reckless disregard showing that a person who exercises care and considers the
safety of the workers in making a decision involving safety is both exercising care and not
“consciously disregarding” safety. Under the “absence of slight care” or the “consciously
disregard” definitions, the ultimate issue is whether Wetzel showed regard or a slight degree of
care for safety. If he exercised care, then he did not “disregard” safety. Such conclusion is

19


less than reasonable care.” Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987). Wetzel, as a
foreman, must be held to this higher standard of care,!

This, then, is the appropriate scope of the duty that adheres to an operator’s agent under
the Act: It is not a duty to exercise reasonable care in the abstract, but rather the obligation to
exercise a thoughtful prudence that takes into account the nature of mining, the mine
environment, and the purposes of the mandatory safety standards implicated by the
circumstances encountered therein.

Wetzel’s conduct as a supervisory agent of Lehigh fell far short of his duty under the Act.
Contrary to the Judge’s first rationale, Wetzel’s willingness to enter the pit himself does not
amount to a factor which reduces the degree of negligence. As a foreman, Wetzel is held to a
very high degree of care, and his actions set an example for other employees. Entering the pit
himself and working below a dangerous highwall and bank in conditions that the Judge found to
be highly likely to result in fatal injuries would have posed the same unjustifiable risks to Wetzel
as to other miners.

Furthermore, Wetzel’s entry into the pit would have still unjustifiably set an example of
improperly prioritizing the retrieval of the bucket and resumption of production over miners’
safety. In any event, Wetzel ultimately authorized a miner on his crew to go into the pit instead
of himself — not once, but twice. Doing so showed no meaningful consideration of the exposure
to danger inherent in the task.

Nor does the Judge’s second reason — Wetzel’s misunderstanding of the hazards
presented by authorizing Osenbach to enter the pit twice — reduce the level of negligence
attributed to the violative conduct. The Judge determined that Wetzel’s belief that the south
slope did not present a hazard and that Osenbach would be far enough away from the northern
highwall hazards was not reasonable, even if it were genuine. 38 FMSHRC at 2800. As we
have noted, the operator’s agents are held to a very high standard of care. This duty requires a
very high standard of care in evaluating hazards, and yet the Judge found that Wetzel’s
assessment of the danger was unreasonable.

The Commission has held that “if an operator has acted on an objectively reasonable and
good faith belief that the cited conduct was in compliance with applicable law, such conduct will
not be considered to be the result of an unwarrantable failure when it is later determined that the
operator’s belief was in error.” Oak Grove Res., LLC, 38 FMSHRC 1273, 1279 (June 2016)
(citations omitted). Although this principle arose in the context of unwarrantable failure
determinations, the Commission has engaged in similar considerations when reviewing a Judge’s

'2 Our colleague contends that “Wetzel was not mine management.” Slip op. at 21. But
Wetzel, who acknowledged that he was responsible for miners’ safety on his shift, Tr. 455-56,
was the only supervisor on duty at the time of this incident. It therefore does not matter that
Wetzel was in charge only of a small group of workers: He was the agent responsible on behalf
of the operator for the health and safety of each of those miners, a fact that has not been disputed
before us.


and the operator’s agent knowingly had a danger sign removed and replaced before and after
moving cars through the area. This is far different from the majority’s characterization.!°

If the test of negligence were whether the operator prevented the occurrence of a
violation, every violation would automatically entail negligence. That is not our law. The test
for even low or ordinary negligence is not whether a violation occurred but, again, whether the
operator acted as a reasonably prudent mining operator would under similar circumstances. It is
plainly incorrect to insinuate that the occurrence of a violation, standing alone, demonstrates
negligence, let alone reckless disregard.

This is particularly important because the Mine Act is a strict liability statute. The
operator is liable for a penalty for every violation attributable to it regardless of negligence.
However, the Commission finds no negligence if the operator acted as a reasonably prudent
person even though a citable violation or even fatal accident occurs. For example, in Leeco, Inc.,
38 FMSHRC 1634 (July 2016), the Commission considered a case in which a miner whom the
operator had warned not to enter a red zone subsequently suffered a fatal injury in a red zone.
The operator had taken a number of steps in addition to warning the miner not to enter a red
zone. After the fatality, MSHA charged the operator with moderate negligence. The
Commission first restated the Commission’s test for ordinary negligence. Jd. at 1637. It then
reversed the finding of moderate negligence, holding,

Without evidence that a reasonably prudent operator would have
done more under the circumstances, it was error for the Judge to
conclude that Leeco’s response to Smith’s previous incident was
insufficient.

Id. at 1639. Thus, the fact that the actions taken by the operator did not “prevent” a fatal injury
to a miner from an unsafe act in which he had earlier engaged did not preclude a finding of no
negligence when the operator acted in a reasonably prudent manner. The operator took the
actions of a reasonably prudent operator and, accordingly, was not negligent.

Similarly, in Jim Walter Resources, 36 FMSHRC 1972, the Commission upheld a finding
of no negligence in a case involving whether an operator had acted prudently in hiring and
monitoring a contractor. A fall seriously injured a contractor’s employee. Although the
operator’s hiring, training, and monitoring practices did not prevent the accident, the Judge found
no negligence by the operator. The Commission sustained the Judge’s decision finding that the
operator acted in a reasonably prudent manner. Jd. at 1976. See also Nally & Hamilton Enters.,
38 FMSHRC 1644, 1652 (July 2016) (“We affirm the finding of no negligence. The Judge
found that the operator established and conducted a sufficient training and enforcement program

10 Ironically, in BethEnergy, which the majority contends stands for the proposition that
examining an area did not reduce negligence, the Secretary did not allege that the operator’s
actions constituted “reckless disregard,” and the inspector “did not believe that such conduct rose
to the level of ‘reckless disregard’ because [the acting construction foreman] had made an
examination of the area before he authorized a miner to enter it.” 14 FMSHRC at 1236.

25


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

APR 102018

v. : Docket Nos. PENN 2014-108
¢ PENN 2014-109
LEHIGH ANTHRACITE COAL, LLC

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. : Docket No. PENN 2016-135

SHANE T. WETZEL, EMPLOYED BY
LEHIGH ANTHRACITE COAL, LLC

Before: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY: Jordan, Young, and Cohen, Commissioners

These proceedings, which arise under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involve enforcement actions taken by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) against Lehigh
Anthracite Coal, LLC (“Lehigh”), and Shane Wetzel, a foreman employed by Lehigh. The
alleged violations arose from an incident in which a miner worked under a dangerous highwall
and bank. MSHA issued a citation to Lehigh alleging a violation of 30 C.F.R. § 77.1006(a)' that
was significant and substantial (“S&S”) and the result of Lehigh’s unwarrantable failure to
comply with the standard.? MSHA proposed a civil penalty of $23,229 for the alleged violation.

' 30 C.F.R. § 77.1006(a) provides that “[m]en, other than those necessary to correct
unsafe conditions, shall not work near or under dangerous highwalls or banks.”

> The “significant and substantial” and “unwarrantable failure” terminology is taken
from section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), which distinguished 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,” and establishes more severe sanctions for any

1


production of coal. 38 FMSHRC at 2785, 2799. Such actions demonstrate a degree of
negligence best characterized as reckless disregard. See Spartan Mining Co., Inc., 30 FASHRC
699, 719-23 (Aug. 2008) (where mine fan stopped and foreman directed miners to attempt to
repair damaged cable rather than withdraw from working section, Judge properly characterized
foreman’s action as reckless disregard); Signal Peak Energy, 37 FMSHRC 470, 482 (Mar. 2015)
(where operator failed to immediately contact MSHA following an accident with a reasonable
potential to cause death because of a desire to resume production, the Judge correctly found the
violation to be reckless disregard).

We note that the Judge characterized this as a case in which “a supervisor directed a
miner into a situation that posed an immediate and appreciable risk to the safety of that miner.”
38 FMSHRC at 2799. The Judge found that Wetzel did this knowingly. Jd. at 2801. This is so
contrary to the standard’s command that miners not work under or near dangerous highwalls that
the operator cannot be said to have exercised any meaningful care for the safety of the miner
endangered here.

We conclude that the record on review supports only the conclusion that the respondents
recklessly disregarded the safety of a miner, and thus demonstrated the highest possible level of
negligence for purposes of penalty assessment under section 110(i). To hold otherwise would be
to find that an operator does not act with reckless disregard when its agents see hazardous
conditions but fail to use the judgment responsible supervisors must exercise to avoid placing
miners in peril, or when those agents recognize the likelihood of dire consequences but disregard
that likelihood and allow or direct miners to expose themselves to mortal danger without
justification. See 38 FMSHRC at 2797, 2799 (finding “obvious” dangers here were “highly
likely to result in fatal injury to a miner”).

Given this determination, it is therefore unnecessary to remand the determination of
respondents’ level of negligence to the Judge. See, e.g., Walker Stone Co. v. Sec’y of Labor, 156
F.3d 1076, 1085 n.6 (10th Cir. 1998); Sedgman, 28 FMSHRC 322, 331 (Sune 2006) (stating that
remand unnecessary where Judge failed to examine whether certain actions violated a safety
standard because record supplied “more than sufficient evidence” to uphold the citation).

We vacate the penalties assessed against the respondents and remand them for
reassessment. On remand, the Judge may weigh the section 110(i) factors as he deems
appropriate under the circumstances of this case.'*

'4 We note that upon discovering the incident prior to MSHA being notified, Lehigh
itself investigated what had occurred, disciplined Wetzel and the other miners involved, and
changed its policies so as to formalize the procedure it had used to safely retrieve the buried
bucket. Such proactive actions may be considered under section 110(i) as “demonstrated good
faith of the person charged in attempting to achieve rapid compliance after notification of a
violation.” See Hidden Splendor, 36 FMSHRC at 3109 (Comm’r Cohen, concurring). We do
not consider the statutory phrase “after notification of a violation” as being limited to notification
by MSHA or its inspectors. An operator which is ultimately charged with a violation may

12


prohibited by the safety standard. Indeed, the Judge himself determined that such measures were
“wholly inadequate.” Jd. at 2800.'°

Evidence that such wholly inadequate efforts were undertaken in “good faith” does not
change the conclusion that such factors do not reduce the level of negligence. 38 FMSHRC at
2800. As discussed above, the subjective good faith of such actions does not reduce negligence
where such actions are based on an objectively unreasonable belief. Cf JO Coal Co., 31
FMSHRC 1346, 1358 (Dec. 2009) (stating that the Judge’s finding that a foreman “‘was not
indifferent to his responsibilities’ . . . and ‘tried, but failed to meet the standard of care required
of him,’ . . . does not dispose of the issue of reasonableness”).

In sum, the Judge’s determination that Lehigh’s and Wetzel’s negligence was “‘high’
rather than ‘reckless’” was based on legal error. 38 FMSHRC at 2800, 2802. Under the facts of
this case as found by the Judge, while the level of negligence did not involve a conscious
intention to cause harm to a miner, it did involve a conscious choice to take actions with
knowledge of facts that would disclose to a reasonable foreman an unjustifiably high risk of
potentially fatal injury to a miner.

Commission Judges have consistently found operators’ negligence to be “reckless
disregard” where the violation was found to be motivated by a desire to avoid the loss of
production. See RAG Cumberland Resources, LP, 23 FMSHRC 1241, 1261 (Nov. 2001) (ALJ);
Lhoist N. America of VA, Inc., 36 FMSHRC 2413, 2427 (Sep. 2014) (ALJ); Regent Allied
Carbon Energy, Inc., 37 FMSHRC 830, 857 (Apr. 2015) (ALJ); Saiia Construction, LLC, 38
FMSHRC 2291, 2306 (Aug. 2016) (ALJ) (“The [operator’s] message was loud and clear:
production over human life”).

In this case, Wetzel’s conduct, individually and as imputed to Lehigh, amounted to
reckless disregard based on the Judge’s own findings and conclusions. Wetzel ignored the
obvious and high risk of fatal injuries to Osenbach in authorizing him to twice enter the pit, at
night under poor illumination, where Osenbach was required to pass through and work in a
narrow valley, menaced by unstable ground conditions following a collapse that removed lateral
support from the remaining material on the highwall and buried the bucket under so much
material that a dragline could not move it. 38 FMSHRC at 2794-96.

As the Judge also concluded, Wetzel sent Osenbach into the pit under these conditions
when he knew that safe alternatives were available. He took this action so as to avoid sacrificing

3 Our colleague alleges that we do not discuss the totality of the evidence because we
“summarily declare the totality of actions ‘meaningless.’” Slip op. at 20. Our opinion notes with
particularity the Judge’s own findings of fact and conclusions of law about the dangers present
and the failure of Wetzel to apprehend those dangers or to take effective precautions to avoid
exposing Osenbach to them. When we conclude, based on the Judge’s own evidentiary findings
and legal conclusions, that Wetzel’s actions were “effectively meaningless in terms of
realistically reducing those hazards,” we are simply adopting and restating the Judge’s finding
that Wetzel’s actions were “wholly inadequate.”

11


First, we note that this case spotlights the difficulties that arise from applying, too
literally, MSHA’s definitions of negligence in the assessment of penalties by the Commission
and its Judges. While such definitions may appropriately guide inspectors, their rigidity adapts
poorly to the holistic consideration of negligence by Commission Judges after a hearing. See
Hidden Splendor Res., Inc. 36 FMSHRC 3099, 3105-08 (Dec. 2014) (Comm’r Cohen,
concurring).

In particular, MSHA’s definition of “reckless disregard,” which focuses on whether an
operator has exhibited the “slightest degree of care,” is either inappropriately subjective or, if
read literally, almost indistinguishable from intentional misconduct by an operator’s agent. The
definition is therefore not well suited to the objective “reasonably prudent person” standard used
by Commission Judges.

We thus suggest Commission Judges should be guided by broader and more general
common-law standards more congruent with the Act’s intent and purpose, i.e., to prioritize the
health and safety of miners. “Reckless disregard” should therefore include, for example,
situations where an operator knows or has reason to know of facts which create a high degree of
risk of physical harm, and deliberately proceeds to act, or fails to act, in conscious disregard of,
or indifference to, that risk. Cf Restatement (Second) of Torts § 500 cmt (Am. Law Inst. June
2017).!! Thus, the operator’s conduct would be measured objectively against the conduct under
the same circumstances of a reasonably prudent person familiar with the mining industry, the
relevant facts, and the protective purpose of the regulation at issue. See pp. 10-11, infra.

The Mine Act recognizes that the “first priority ... in the .. . mining industry must be the
health and safety of its most precious resource — the miner.” 30 U.S.C. § 801(a). The Mine Act
places primary responsibility for maintaining safe and healthful working conditions in mines on
operators, with the assistance of their miners. 30 U.S.C. § 801(e). We have long recognized that
mine management should be held to a high standard of care. See Midwest Material Co., 19
FMSHRC 30, 35 (Jan. 1997) (“a foreman . . . is held to [a] high standard of care”). See also Jim
Walter Res., Inc., 36 FMSHRC 1972, 1982-83 (Aug. 2014) (Comm’rs Young and Cohen,
dissenting) (stating that, while not binding on the Commission, section 100.3(d) puts operators
on notice of the Secretary’s expectation of the “high standard of care” operators owe to their
miners.).

Managers not only act as directly responsible stewards for the health and safety of their
miners, they also ensure that miners will conduct themselves as the Act envisions, in a manner
that protects their own health and safety and that of their co-workers. “Managers and supervisors
in high positions must set an example for all supervisory and non-supervisory miners working
under their direction. Such responsibility not only affirms management’s commitment to safety
but also, because of the authority of the manager, discourages other personnel from exercising

'! We are not attempting to comprehensively define “reckless disregard,” but only setting
forth, using language from the Restatement of Torts (a commonly-cited authority on questions of
negligence), a description of a type of reckless disregard which describes foreman Wetzel’s
actions in this case.


Another puzzler is the majority’s reason for pointing out that an objectively reasonable
belief in one’s actions fully defeats an unwarrantable failure charge. 7 The majority writes that
the Judge could not consider Wetzel’s “subjective” mental state because, in a different area of
the law, unwarrantable failure cases, an objectively reasonable belief frees an operator from

2. The Judge must then place the negligence on a continuum from no negligence to the
extreme forms of negligence. This continuum does not compel categorization or, more
pertinently, great leaps or reductions in penalties based upon categorization. Ona
continuum, negligence may fall just above or below a “category.” For Mine Act
purposes, slight deviations from a particular category need not result in substantial
penalty differences.

3. To the extent it is useful to classify a degree of negligence in a particular case,

(a) The normal finding for the failure to take actions that a reasonably prudent operator
would have taken is ordinary negligence;

(b) If the Secretary proves by a preponderance of the evidence that the operator
exercised aggravated lack of care amounting to less care than even an ordinarily careless
person exercises then the negligence is higher than ordinary and is “high” or “gross.”

(c) If the Secretary proves by a preponderance of the evidence that the operator showed a
complete lack of concern or care for safety — that is, did not show the slightest degree of
care — then the operator acted with reckless disregard.

4. For penalties assessed by MSHA under the regular point system, the Sellersburg rule
applies. Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff'd, 736 F.2d 1147
(7th Cir. 1986). Therefore, if the penalty assessed by the Judge diverges substantially
from the penalty proposed by the Secretary under the regular point system, the Judge
must explain the reasons for diverging substantially from the Secretary’s proposed
penalty. The Judge must consider all penalty criteria.

5. IfMSHA bases the penalty upon a special assessment, then the Secretary must bear the
considerable burden of providing special reasons for a substantially enhanced penalty.
Because a special assessment is arbitrary in the first instance, the Judge must evaluate the
violation holistically and set a penalty that is fair and consistent with penalties that have
been or should be assessed for similar violations by similarly situated operators
throughout the same sector of the mining industries.

7 The majority cites DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3090, 3097
(Dec. 2014). Slip op. at 10. That case involved a finding of high negligence rather than reckless
disregard. They also cite Mach Mining, LLC, 36 FMSHRC 1525, 1527 (June 2014). Slip op. at
10. That case involved the mine president/superintendent, and the Commission accepted a
finding that the ignorance of the mine president was “slight mitigation,” but was insufficient to
defeat a high negligence finding.

22


Because the operator took quick and decisive actions before any MSHA involvement, the Judge
might well apply Black Beauty to find that the operator need not incur a severe fine to achieve
future compliance as it already positively demonstrated safety consciousness. As the majority
emphasizes, if the Judge wishes to consider the operator’s exemplary unilateral corrective action,
he may do so. In that case, the Judge could reduce the penalty upon remand.

Conclusion

For the reasons set forth above, I respectfully dissent.

Heth 9 av

William I. Althen, Acting Chairman

28


The crew then decided to try pulling the bucket out with a cable. Rudinsky used the
excavator to dig a bench that was five feet down from the top of the west bank. The excavator
was moved onto this bench to bring it closer to the buried bucket. Tr. 361.

Osenbach entered the pit a second time and hooked a cable to the bucket’s control chains.
The second attempt to use the excavator to pull out the bucket also failed. Osenbach was not
wearing a safety belt or line during either of his two entries into the pit. Each of Osenbach’s
trips into the pit lasted approximately two minutes. 38 FMSHRC at 2785-86, 2796, 2802.

At 2:43 a.m., Wetzel sent an email to first-shift Foreman Louis Mitchalk informing him
of the stuck bucket. Ex. S-13. When Mitchalk arrived at the pit a few hours later, he saw
evidence that a miner had entered the pit and notified Lehigh’s safety director, John Hadesty. Tr.
234-35.

Mitchalk and his crew then retrieved the stuck bucket by cutting the buried bucket free,
attaching another bucket to the dragline, and using the new bucket to dig out the buried bucket.
No miners entered the pit during the retrieval. Mitchalk testified that this method had been
employed five times before by the operator. 38 FMSHRC at 2787; Tr. 70-73, 246, 256.

During the week of June 19, the operator conducted an investigation of the incident,
interviewed witnesses, and gave written warnings to Wetzel, McNeal, Osenbach, and Rudinsky.
Lehigh decided to forego its ordinary first step of providing verbal warnings because the miners’
conduct was so dangerous. In addition, the operator formalized the procedure it had used to
recover the buried bucket, sought and eventually received approval from MSHA for the
procedure as part of its ground control plan, and provided training on the new procedure. 38
FMSHRC at 2787, 2802; Tr. 124-26, 245-46, 415-16; Ex. S-5 at 3, Ex. S-14, Ex. S-19 at 3.

On June 24, MSHA received an anonymous complaint about the incident. MSHA
Supervisor Tom Yencho called the mine and issued a verbal imminent danger order over the
phone. That same day MSHA Inspector David Labenski traveled to the mine, interviewed
employees, and determined that no imminent danger was present since the situation had occurred
five days earlier.

MSHA investigated the matter, using in part the materials gathered by the operator.’ On
July 3, 2013, MSHA issued Citation No. 8000958, alleging an S&S violation and an
unwarrantable failure to comply with section 77.1006(a) for allowing an employee to work near
or under a dangerous highwall or bank. It also issued Citation No. 8000959, alleging an S&S
and moderately negligent violation of 30 C.F.R. § 77.1710(g) for failure to wear safety belts and
lines where there is a danger of falling. In addition, the Secretary later sought a section 110(c)
civil penalty against Wetzel for his involvement in the violation of section 77.1006(a).

7 The inspector’s notes stated that throughout the investigation, Lehigh had been “very
cooperative and share[d] info. freely when requested. Action was taken to correct the problem
before anyone from MSHA knew about it and policies have been written to prevent further
troubles. Company tries very hard to make jobs safe.” Ex. S-3, notes for 7-8-13 at p. 7.

4


deter Wetzel or any other line foreman from making a similar mistake in the future. Although
Wetzel grievously failed in his duties, mine management was exemplary in fulfilling its duties to
miner safety.

The issue before the Judge was not whether Wetzel was negligent but instead the level of
negligence exhibited by Wetzel. The Judge applied MSHA’s definition of reckless disregard as
accepted and argued by both parties. He decided that the action was highly negligent rather than
reckless disregard. The Judge based the decision upon a finding that Wetzel exercised a degree
of care. As said, the outcome of our review depends upon the existence of any legal errors and
whether substantial evidence in the record as a whole supports a finding that the Judge’s decision
was reasonable.

As explained below, I do not agree with the majority’s findings of legal errors. Going
further, the Judge pointed to a number of actions, and the record discloses other actions,
demonstrating that Wetzel, and hence the operator, showed a degree of care. Of course, the issue
before us is not whether we would have made the same finding. Ultimately, the only issue is
whether, after reviewing the totality of the evidence, we should find the Judge’s decision was
unreasonable.

The facts show that Wetzel did not send a worker into the area unilaterally, immediately,
or without discussion and consideration. He met with the entire crew. As a group, the crew
discussed means of freeing the bucket, including attaching a chain to the bucket. They identified
a procedure through which a miner would enter the pit very briefly to attach a chain to the crow’s
foot.

Wetzel examined the southern slope, judged that it was strong enough to support itself,
and did not see any indication of future movement. Further, Wetzel considered the danger from
the Northern highwall and decided Osenbach’s route would keep him far enough from it to be
safe.

Wetzel did not order Osenbach to go into the pit. In fact, Wetzel said he would hook the
chain, but Osenbach then volunteered to do it.2 Under the Judge’s analysis, Wetzel showed
regard for safety before he accepted Osenbach volunteering to go into the pit. Stated differently,
Wetzel did not disregard safety consciously or unconsciously, nor did he act without any concern
for safety. After a group discussion, he made a conscious decision that a miner could hook the
chain to the bucket safely. The facts on the record that demonstrate that it was reasonable for the
Judge to find a degree of care and a regard for safety include the discussion with the crew,
review of conditions, a brief period of exposure, defining a route, lighting the area, and voluntary
participation by a physically fit miner.

2 Not being the trier of fact and having only a transcript before us, we may not assign a
reason for or significance to Osenbach’s remark that he would go into the pit because Wetzel had
children. See Martin Cty. Coal Corp., 28 FMSHRC 247, 257 (May 2006) (stating that “fact-
finding is not the province of the Commission”).

15


or provided any briefing of their alternative definition or its applicability to the facts of this
case.

A. The Majority Ignores Decades of Negligence Caselaw to Arrive at Its Suggested
Definition of Reckless Disregard.

After public notice and comment, MSHA promulgated the definition of reckless
disregard thirty-five years ago in 1982. Criteria and Procedures for Proposed Assessment of
Civil Penalties, 47 Fed. Reg. 22,286 (May 21, 1982). There, MSHA said, “[t]he ‘reckless
disregard’ category, for which the maximum number of points would be assigned, is
characterized by conduct which exhibits the absence of even the slightest degree of care.” Jd. at
22,289-90. Since that promulgation, the Commission and Judges have used that definition in
literally dozens and dozens of cases.

For purposes of this case, however, the majority chooses to use an alternate definition of
reckless disregard not used by the Judge or briefed by the parties. They explain their adoption of
a “conscious disregard” definition by referencing the test for ordinary negligence — that is,
“actions [that] would have been taken under the same circumstances by a reasonably prudent
person familiar with the mining industry, the relevant facts, and the protective purpose of the
regulation.” Slip op. at 7. The majority then essentially applies a “reasonable person test” to
“conscious disregard” in a manner that reduces the burden of proving reckless disregard.

The majority apparently posits a false dichotomy between the definition of reckless
disregard used by the Judge and their definition. In a field as vast as the law of negligence, it is
natural that one may find different definitions for reckless disregard with slightly different
wording or that conflict in minor ways. For example, some courts equate reckless disregard with
gross negligence, using the “slight degree of care” touchstone. See, e.g., Ave. CLO Fund, Ltd. v.
Bank of Am., N.A., 723 F.3d 1287, 1300 (11th Cir. 2013) (“New York law defines gross
negligence as ‘conduct that evinces a reckless disregard for the rights of others or smacks of
intentional wrongdoing,’ or ‘the failure to exercise even slight care.’” (citations omitted));
Penunuri v. Sundance Partners, Ltd., 2017 UT 54, 4 35, — P.3d — (“In Utah, gross negligence
is ‘the failure to observe even slight care; it is carelessness or recklessness to a degree that shows
utter indifference to the consequences that may result.’” (quoting Blaisdell vy. Dentrix Dental
Sys., Inc., 284 P.3d 616, 621 (Utah 2012)) (citation omitted)).

3 T can only conclude that the majority implicitly agrees that under the definition that
MSHA, the Commission, and the Commission’s Judges have routinely applied — the section
100.3 definition of reckless disregard — substantial evidence supports the Judge’s decision.
Otherwise, there would be no reason to substitute summarily an alternate definition of reckless
disregard that the majority then, incorrectly but more easily, finds to have been met. Despite
Commission caselaw that Judges may use the Part 100 definitions and years of consistent use of
the section 100.3 definition of reckless disregard, the majority reaches an outcome by
“suggesting” a different definition of reckless disregard for purposes of this case. They do not
explain any reason for departing from the standard definition in this one case. This case-by-case,
“do whatever we feel is right” approach is contrary to principled adjudication.

17


At the time in question, the highwall, which was located on the north side of the pit, was
nearly vertical, and the south wall had a slope of about 50 degrees. The mine resembled the
shape of a modified “V,” in that the distance between the walls at the top was approximately 50-
60 feet, while the distance between the walls at the floor of the pit was approximately 10-30 feet.
Id. at 2784.

On the night of June 19, 2013, Larry McNeal, the dragline operator, stepped out of his
cab to replace a light on the dragline while the bucket was resting on the floor of the pit. While
he was out of the cab, McNeal felt two vibrations, which turned out to be coal falling off of the
face of the south wall. The fall of coal buried the bucket. McNeal used the dragline controls in
an effort to raise the bucket, but the bucket would not budge. Jd. at 2785; Tr. 60; Ex. S-3 at 3;
Ex. S-10; Ex. S-20 at 1.

McNeal called the second shift foreman, Shane Wetzel. Wetzel testified that, as the
foreman, he was responsible for safety on his shift and making sure that miners in his charge
complied with MSHA’s regulations. If miners did not comply with those regulations, then
Wetzel had the authority to redirect them and have them perform their work safely. Tr. 455-56.

Wetzel and McNeal tried repositioning the dragline. However, they were unable to pull
the bucket free. Tr. 36; Ex. S-3 at 3.

Foreman Wetzel called truck driver Erik Osenbach and excavator-operator Richard
Rudinsky to the pit. They considered abandoning the bucket, which would have sacrificed
production for the shift, but discarded that option. They also considered building a road to
access the pit, but rejected that option as infeasible or requiring too much time and loss of
production. 38 FMSHRC at 2785; Tr. 38, 86-87, 328, 354, 356, 433-34.

Instead, they decided that one of them would descend into the pit to attach a chain to the
“crow’s foot” on the bucket so that an excavator, attached to the other end of the chain, could
pull the bucket out. Foreman Wetzel proposed going into the pit himself, but Osenbach
volunteered to go because Wetzel had “a wife and kids.” 38 FMSHRC at 2786. Rudinsky drove
the excavator to the pit, and Osenbach entered the pit and attached the chain.’ When the
excavator attempted to pull the bucket out of the muck using the chain, the chain broke. Jd. at
2785-86.

5 A “crow’s foot” is the point at which the two control chains for the dragline attach to
the bucket. 38 FMSHRC at 2785.

© As part of the retrieval plan, the area was illuminated by the dragline and viewed to see
if any material was moving, Osenbach attempted to keep his distance from the highwall and to
minimize his time in the pit, and the dragline operator was provided with a horn to alert
Osenbach if conditions became more hazardous. Tr. 89, 119, 330, 338, 340, 360, 362, 398-99,
440; Ex. S-20 at 3.


to avoid liability under Southwestern I.”). The occurrence of a violation or an accident, standing
alone, most certainly does not prove any degree of negligence. Surely, the majority does not
mean that anything and everything an operator understands, believes, and does are irrelevant to
whether an operator has acted negligently, let alone with a reckless disregard of safety.

The majority further errs in that it does not examine the totality of the evidence to discern
whether the Judge’s decision is reasonable. Even were the majority’s propositions regarding the
understanding, beliefs, and actions of the operator correct, the majority does not adequately
explore whether the operator’s action showed a slight regard for safety. As a result, as the
majority reaches the denouement of its decision, the majority simply reweighs or does not
discuss the evidence regarding whether the Secretary proved the operator failed to show any
slight degree of care or consciously disregarded safety through the foreman’s discussions with
the crew and other actions. Slip op. at 10-11.

Having intruded upon the Judge’s duty and reweighed the evidence, the majority asserts
that Wetzel’s conduct “demonstrated the highest possible level of negligence.” Jd, at 12. Under
the facts of this case, that finding is either absurdly incorrect or buys into the Secretary’s
proposition that the Judge should simply decide upon a category of negligence and, then, his/her
work is complete, so that a finding of reckless disregard is always tantamount to the worst
imaginable negligence. I do not think the majority actually can mean what it said.'!

Ill. Penalty Considerations on Remand

The majority decision remands the case for the assessment of a penalty. In doing so, the
majority rejects the Secretary’s suggestion that once the Commission places negligence in one of
the MSHA-described categories, the Judge should accept the MSHA-proposed penalties. The
majority eschews taking any position on the penalty, thereby suggesting they would not object to
the same penalty as previously assessed. Consequently, I offer a few comments regarding
penalties.

Neither the term “high negligence” nor the term “reckless disregard” appears in the Mine
Act. Indeed, the term “negligent” appears only twice. Both uses are in section 105 and relate to
the criteria by which the Secretary proposes and the Commission assesses penalties.'* 30 U.S.C.
§ 815.

1 Indeed, had Wetzel not discussed the plan with the crew, had he not taken efforts to
ensure Osenbach’s safety, and had he not had a good faith belief that that the descent into the pit
was safe, 38 FMSHRC at 2800, surely Wetzel’s actions would have been worse than they were
in this case, Yet the majority fails to grapple with the Judge’s finding that Wetzel genuinely
thought that descent into the pit was safe, opting instead to consider such information legally
irrelevant in assigning culpability.

2 Interestingly, even section 110(i) the Mine Act does not refer to degrees of negligence
but only asks “whether the operator was negligent.” 30 U.S.C. § 820(i).

26


In addition, MSHA proposed a penalty of $2,900 against Wetzel individually under section
110(c) of the Mine Act” for knowingly authorizing the violation.

A Commission Administrative Law Judge concluded that the operator had violated
section 77.1006(a), that the violation was S&S and caused by unwarrantable failure, and that
Wetzel was liable under section 110(c) for knowingly authorizing the violation. 38 FMSHRC
2782, 2794-2805 (Nov. 2016) (ALJ). However, the Judge found that Lehigh’s and Wetzel’s
negligence was “high” rather than “reckless,” as alleged by MSHA, and assessed penalties of
$6,996 and $1,000 against them, respectively. Jd, at 2800-02.

The Secretary of Labor petitioned the Commission for review of the Judge’s negligence
findings and assessment of penalties. We granted review and heard oral argument. For the
reasons that follow, we vacate and remand for further proceedings.

L

Factual and Procedural Background
A. Facts

Lehigh operates the Tamaqua Mine, an open pit anthracite coal mine in Tamaqua,
Pennsylvania. In order to extract coal, Lehigh uses explosives to blast open the pit, removes the
rock covering the coal to expose the coal seam, and then digs the coal from the pit with an
excavator.‘ The rock is deposited in spoil piles located at the north and south sides of the top of
the pit. A highwall is created as the pit increases in depth.

When the highwall becomes too unstable to keep an excavator in the pit, coal is removed
from the pit using a dragline, a large, track-mounted vehicle which is operated from the surface
beside the pit. /d. at 2784-85. The dragline has a boom crane that extends over the pit and a
bucket attached to the boom. The bucket is lowered into the pit and then digs and scoops coal as
it is scraped across the floor. After it has been loaded, the bucket is lifted and the extracted coal
is dumped in a collection pile at the side of the pit. The bucket is nine feet long, six feet wide,
and four feet deep, and can hold seven cubic yards of material. Id. at 2785.

violation caused by “an unwarrantable failure of [an] operator to comply with . .. mandatory
health or safety standards.”

5 Section 110(c) provides that “any . . . agent of [a] corporation who knowingly
authorized, ordered, or carried out such violation ... shall be subject to . . . civil penalties.” 30
US.C. § 820(c).

* An “excavator” is a large track-mounted piece of equipment that swivels 360 degrees,
has a long boom, and is similar to a backhoe although much larger. Tr. 58.

2


Distribution:

R. Henry Moore, Esq.

Jackson Kelly PLLC

Three Gateway Center, Suite 1500
401 Liberty, Avenue

Pittsburgh, PA 15222

Edward Waldman, Esq.
Office of the Solicitor

US Department of Labor
201 12th St. South, Suite 401
Arlington, VA 22202-5450

Ali Beydoun, Esq.

Office of the Solicitor

US Department of Labor
201 12th St. South-Suite 401
Arlington, VA 22202-5450

Melanie Garris

Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor

201 12th Street South, Suite 401

Arlington, VA 22202-5450

Administrative Law L, Zane Gill

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

1331 Pennsylvania Avenue, N. W., Suite 520N
Washington, D.C. 20001


Til.
Conclusion
For the reasons discussed above, we hold that the Judge’s negligence determinations

were based on legal error. We further vacate the penalties assessed against Lehigh and Wetzel
with respect to the violation of section 77.1006(a) and remand for reassessment consistent with

Mla bo pla

Mary Lu Jgglian, Com(fifsioner

Robert F. Cohen Jr., Commissioner

receive “notification of a violation” where, as here, another foreman discovers the unsafe action
and notifies the company’s safety director.

13


None of this undercuts the Judge’s decision of high negligence, and this opinion is not in
any sense a defense of Wetzel’s conduct. Based on the evidence, the Judge reasonably found
that Wetzel made a decision to send/allow Osenbach to enter the pit, albeit an ill-conceived
decision, in consultation with the crew, with a degree of care, and with regard for the safety of
the miner.

Reviewing the entire record, the facts are sufficient to affirm the decision under the
substantial evidence standard of review. For this reason, I dissent from the majority’s decision to
vacate the Judge’s negligence determination and to hold, as a matter of law, that Wetzel and
Lehigh’s actions constituted reckless disregard.

Il. The Judge Appropriately Used the Secretary’s Definition of Reckless Disregard
and Considered Facts Relating to the Level of the Operator’s Negligence.

Had the majority found that, based upon the exclusion of certain evidence or conclusions,
the evidence only supported a conclusion that the operator displayed the absence of a slight
degree of care, I would have disagreed with but understood their decision. That is not their
approach. Instead, the majority not only accepts the Secretary’s conversion of a substantial
evidence case into a “legal” case through asserted legal arguments but also surpasses even the
Secretary by going further than the Secretary and suggesting, but not mandating, a different
definition of reckless disregard for this case at the appellate level. Using that definition and
disallowing certain findings by the Judge rather than reviewing the totality of the evidence, the
majority reverses.

Ihave great respect for my colleagues and recognize that they will disagree, probably
strongly, with me; nevertheless, I am constrained to address their opinion. Their decision strikes
me as a desired result driving the law rather than the law driving a principled result.

When the Secretary alleges that an operator’s actions exhibited reckless disregard for
safety, he takes on a self-prescribed task of proving by a preponderance of the evidence “the
absence of the slightest degree of care.” 30 C.F.R. § 100.3(d). That is a standard and much-
utilized definition of reckless disregard. In turn, that is the standard under which the parties tried
the case and the standard to which the Judge held the Secretary. Neither party challenged the
definition of reckless disregard before the Judge or us, nor did either party brief the effect of a
different definition upon the outcome. The only arguments before us are the Secretary’s
arguments that the Judge could not legally consider certain facts or reach certain conclusions.

The majority accepts the Judge’s findings of fact and credibility determinations. Slip op.
at 6. They review the case under those fact and credibility findings. However, the majority
ultimately fails to apply the substantial evidence standard. The term “substantial evidence” only
appears one time in their opinion in an irrelevant footnote. Slip op. at 6 n.9. On top of that, the
majority goes beyond the petition of the Secretary and refuses, in this instance, to allow the
Judge to apply the longstanding definition of reckless disregard, although neither party objected

16