UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WINDSOR COAL COMPANY,
Petitioner,

v.

SECRETARY OF LABOR; MINE SAFETY
AND HEALTH ADMINISTRATION;
                                                               No. 97-2766
FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION,
Respondents.

NATIONAL MINING ASSOCIATION,
Amicus Curiae.

On Petition for Review of an Order
of the Federal Mine Safety and Health Administration.
(97-34-WEVA)

Argued: June 5, 1998

Decided: July 31, 1998

Before NIEMEYER and LUTTIG, Circuit Judges, and
SMITH, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Michael Cohen, Fund Supply Department, AMER-
ICAN ELECTRIC POWER SERVICE CORPORATION, Lancaster,
Ohio, for Petitioner. Jack Powasnik, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents. ON BRIEF: Marvin Krislov, Deputy Solicitor for
National Operations, Edward P. Clair, Associate Solicitor, W. Chris-
tian Schumann, Counsel, Appellate Litigation, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents. Harold P. Quinn, Jr., Michael F. Duffy,
NATIONAL MINING ASSOCIATION, Washington, D.C., for
Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Windsor Coal Company (Windsor) has petitioned for review of a
final order of the Federal Mine Safety and Health Review Commis-
sion (FMSHRC or the Commission). On June 21, 1996, an inspector
of the Mine Safety and Health Administration (MSHA) issued a cita-
tion to Windsor pursuant to section 104(d)(1) of the Federal Mine
Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 801(d)(1).
Windsor contested the validity of that order before an administrative
law judge (ALJ) and, following a hearing on the merits, the ALJ
affirmed the citation. In addition, the ALJ increased the proposed civil
penalty. The decision of the ALJ became that of the Commission,
when a petition for discretionary review was denied. Pursuant to 30
U.S.C. § 816(a)(1), Windsor appealed to this court. We affirm the
decision in all respects.

I.

Windsor is the operator of an underground coal mine in West Lib-
erty, West Virginia. On June 21, 1996, an MSHA inspector (the
Inspector) conducted an inspection of the number nine conveyor belt

                    2
in Windsor's mine. During the inspection, the Inspector was accom-
panied by Robert Talbert, a representative of Windsor and the shift
supervisor of all underground areas, and Tom Kacsmar, a representa-
tive of the United Mine Workers of America.

The number nine belt is one of several main conveyor belts at the
Windsor mine. The series of conveyor belts are used to transport coal
through and out of the coal mine, as the coal is mined underground.
Coal is deposited onto the number nine belt at its tail end and is trans-
ported to the belt head, where the coal is then deposited onto the num-
ber eight belt. The number eight belt transports the coal out of the
mine.

The number nine belt measures forty-eight inches in width, and
approximately 3,000 feet in length, running from crosscut 191 (the
belt head) to crosscut 227 (the tail end). The belt moves by passing
over 12,000 upper and lower rollers, and is powered by motors at the
head drive. The number nine belt moves approximately 2,000 to
2,500 tons of coal per minute.

During the inspection, the Inspector and Kacsmar, observed large
amounts of coal dust and loose coal1 underneath and alongside the
belt from the belt head at crosscut 191 to crosscut 206 and from the
tail scraper, located beyond crosscut 225, to the tail end. The depth
of the accumulations varied from a few inches to as much as fifty-four
inches. The deepest accumulation, which was located at the tail end
of the belt, measured fifty-four inches deep, twelve and one-half feet
long, and seventy-five inches wide. The accumulations at the tail end
were piled higher than the belt. At another location, between crosscuts
197 and 198, the accumulation was thirty-five feet long, twenty-seven
inches wide, and fifteen inches deep. While the number nine belt was
running, the Inspector, Kacsmar, and Talbert observed the belt and
rollers touching or turning in loose coal and coal dust at various
places along the belt. In some areas the coal was packed up around
_________________________________________________________________
1 Coal dust and loose coal are small particles of coal that are created
during the mining process. Coal dust is defined as that which can pass
through a number 20 sieve, and loose coal is defined as coal fragments
larger than coal dust. 30 C.F.R. § 75.400-1.

                    3
the rollers. The Inspector and Kacsmar both testified that some of the
accumulations touching the belt were warm.

The accumulations were due, in large part, to a tear along the side
of the belt. The tear was five inches wide and 500 feet long. Larry
Moore, a worker who had been periodically assigned to clean the belt
area, noticed the tear a few days prior to the inspection. He informed
a belt foreman of that tear, as well as a tear down the center of the
belt, which was approximately 150 feet in length. As of the day of the
inspection, the center tear, but not the side tear, had been repaired.
Because replacing the belt strip would have required at least one shift
of four to six miners, Windsor had decided to delay the replacement
of the torn belt until the upcoming vacation period. 2 The miners'
scheduled vacation was to begin two shifts after the shift in which the
inspection was conducted.

At the time of the inspection, only one miner was assigned to clean
the area around belt nine. Moreover, a review of the preshift and
onshift reports led the Inspector, and ultimately the ALJ, to conclude
that Windsor had allowed accumulations of coal to remain in areas
along the belt for days during the week preceding the inspection.

The Inspector also observed a total of eighteen broken or stuck
rollers along belt nine. At crosscut 201, he touched a roller with a bad
bearing that was hot to the touch--so hot that he could not keep his
hands on the shaft. According to the Inspector, there was loose coal
and coal dust under this area. The Inspector also observed open doors
and holes in the stoppings, which are used to separate airways
between the track entry and the number nine belt entry. The track
entry is the escape route for the section and, under the conditions
observed by the Inspector, the entry would become filled with smoke
in the event of a fire.3
_________________________________________________________________
2 Windsor had attempted to reduce some of the spillage caused by the
tear by splicing and centering the belt. This reduced the belt by two and
one-half inches on each side, rather than by five inches on one side.
3 Based on this observation, the Inspector issued a citation for a viola-
tion of 30 C.F.R. § 75.333, which requires that permanent stoppings or
other permanent ventilation control devices be maintained and that doors
remain closed when not in use.

                    4
Following the inspection, the Inspector issued a Section 104(d)(1)
citation4 for a violation of the mandatory safety standard of 30 C.F.R.
§ 75.400, which prohibits coal dust accumulations in the active work-
ings of the mine.5 The Inspector further found that the violation was
both "significant and substantial" and "unwarrantable," as defined in
30 U.S.C. § 814(d)(1), which provides in part:

          If, upon any inspection of a coal or other mine, an autho-
          rized representative of the Secretary finds that there has
          been a violation of any mandatory health or safety standard,
          and if he also finds that, while the conditions created by
          such violation do not cause imminent danger, such violation
          is of such nature as could significantly and substantially
          contribute to the cause and effect of a coal or other mine
          safety or health hazard, and if he finds such violation to be
          caused by an unwarrantable failure of such operator to
          comply with such mandatory health or safety standards, he
          shall include such finding in any citation given to the opera-
          tor under this Act.

(emphasis added). As a result of the citation and findings by the
Inspector, the Secretary of Labor (the Secretary) proposed a civil pen-
alty of $1,500.
_________________________________________________________________

4 The Section 104(d)(1) citation was originally issued as a section
104(d)(1) order. The Mine Act provides for escalating enforcement sanc-
tions under Section 104(d) of the Act, so that some of the violations
hinge on the issuance of a prior citation. For example, before a Section
104(d)(1) withdrawal order may be issued, there must have been a Sec-
tion 104(d)(1) citation issued within the preceding 90 days. In this case,
the prior Section 104(d)(1) citation had been reclassified as a Section
104(a)(1) citation. Consequently, on August 27, 1996, the Section
104(d)(1) order issued on June 21, 1996, was reclassified as a Section
104(d)(1) citation.
5 30 C.F.R. § 75.400 provides:

          Coal dust, including float coal dust deposited on rock-dusted sur-
          faces, loose coal, and other combustible materials, shall be
          cleaned up and not permitted to accumulate in active workings,
          or on diesel-powered and electric equipment therein.

                    5
Windsor contested the allegation that the violation was substantial
and significant and due to an unwarrantable failure to comply. Wind-
sor also objected to the proposed civil penalty. A hearing was held
before a Commission ALJ on April 15-16, 1997. On October 20,
1997, the ALJ issued a decision affirming the citation and assessing
a civil penalty of $4,000, specifically finding that the violation of 30
C.F.R. § 75.400 was significant and substantial and the result of
Windsor's unwarrantable failure to comply.

The ALJ's opinion became the final order of the Commission after
the Commission denied discretionary review. Pursuant to 30 U.S.C.
§ 816(a), Windsor appealed to this court. Windsor does not challenge
the ALJ's finding of a violation. Rather, Windsor challenges the find-
ings that the violation was significant and substantial and due to an
unwarrantable failure to comply. Windsor also objects to the amount
of the assessed penalty, maintaining that the circumstances surround-
ing the violation did not warrant the increased penalty.

II.

We review the ALJ's findings to determine if they are supported
by substantial evidence in the record. 30 U.S.C.§ 816(a); see, e.g.,
Consolidation Coal Co. v. FMSHRC, 795 F.2d 364, 368 (4th Cir.
1986). The Supreme Court has defined "substantial evidence" as
"such relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion." Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938). Moreover, the "`possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by substantial
evidence.'" Secretary of Labor v. Mutual Mining, Inc., 80 F.3d 110,
113 (4th Cir. 1996) (quoting Consolo v. Federal Maritime Comm'n,
383 U.S. 607, 610 (1966)).

Windsor argues that there is not substantial evidence to support the
finding that the violation was "significant and substantial" within the
meaning of Section 104(d)(1). To establish that a violation of a safety
standard is "significant and substantial" the following conditions must
be met: (1) an underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of danger to safety--
contributed to by the violation; (3) a reasonable likelihood that the

                     6
safety hazard contributed to will result in injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious
nature. Mathies Coal Co., 6 FMSHC 1, 3-4 (1984).

The ALJ found that the violation was significant and substantial
due to the extensive accumulations of coal in combination with the
stuck and broken rollers, which could then reasonably act as ignition
sources. The ALJ also found that the ventilation problems, also
observed on the morning of the inspection, increased the hazard from
a belt fire; smoke from a fire would be able to travel to other sections
of the mine. Specifically, the ALJ found "that the violation was rea-
sonably likely to result in fire or the propagation of a fire causing
death or serious injuries." J.A. at 433-435.

Windsor objects to the Commission's determination that the viola-
tion is reasonably likely to result in a fire. Windsor argues that the
evidence as a whole supports the conclusion that there was no likeli-
hood of a fire. In particular, the company relies on the following fac-
tors, which it maintains was supported by the evidence: (1) the use of
dust suppression sprays; (2) rock dusting; (3) lack of methane emis-
sions; and (4) the lack of heat being generated by the rollers.
Although Windsor can point to some factual support for its argument,
there remains substantial evidence to support the ALJ's contrary con-
clusion.

Adequate rock dusting does render coal accumulations inert. How-
ever, in this case the top of the accumulations consisted of fresh coal.
In addition, there was no rock dust mixed in with the accumulations
located at the tail piece. Moreover, despite the diminished potential
for an explosion due to low methane levels and dust suppression
sprays, there was sufficient evidence to find that the conditions at belt
nine were reasonably likely to cause or propagate a fire. The coal
accumulations were extensive and there was ample evidence to sup-
port the finding that possible ignition sources were located along the
belt. Eighteen of the rollers were broken, including one that was very
hot to the touch. In addition, the belt and some rollers were touching
or turning in coal dust, and in some places the accumulations were
warm. See Buck Creek Coal, Inc. v. Fed. Mine Safety and Health
Admin., 52 F.3d 133, 135 & 136 n.1 (7th Cir. 1995) (finding the
ALJ's conclusion that the coal accumulations were likely to cause a

                     7
fire was clearly supported by substantial evidence under facts similar
to the case at bar).

Windsor also contends that substantial evidence does not support
the ALJ's finding of an "unwarrantable failure." An MSHA inspector
is to determine whether a violation is caused "by an unwarrantable
failure of . . . [an] operator to comply with . . . mandatory safety or
health standards. . . ." Section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1). An "unwarrantable failure" is conduct that is "not justifi-
able" or is "inexcusable." Secretary of Labor v. S & H Mining, Inc.,
15 FMSHRC 2387, 2390 (1993). It has also been defined as "aggra-
vated conduct, constituting more than ordinary negligence, by a mine
operator in relation to a violation of the Act." Jim Walter Resources
v. Secretary of Labor, Mine Safety and Health Admin. , 103 F.3d 1020,
1025 (D.C. Cir. 1997) (citing Emery Mining Corp. v. Secretary of
Labor, 9 FMSHRC 1997, 2004 (1987)).

In affirming the Inspector's citation, the ALJ found that the viola-
tion was due to aggravated conduct beyond ordinary negligence. The
ALJ found that the accumulations were obvious and extensive and
that the violative accumulations had existed for a substantial period
of time prior to the issuance of the citation. He further found that,
although Windsor knew of the problems with the conveyor belt, the
company failed to take adequate measures to clean up and prevent the
extensive and widespread accumulation of combustible materials.
This finding was based on Windsor's decision to delay necessary
repairs to the belt and to continue production until the miners' vaca-
tion period. It was also based, inter alia, on the fact that only one
miner was assigned to clean the belt nine area on the night of the
inspection.

Windsor argues that the ALJ should have given more weight to the
corrective measures it did take, such as replacing the faulty tail roller,
repairing the center belt split, and adjusting the belt alignment to
reduce spillage caused by the 500 foot tear. Although these efforts do
indicate that Windsor took some action to limit the amount of accu-
mulations, we cannot say that the ALJ erred in its finding of an
unwarrantable failure. There clearly is substantial evidence in the
record to support the ALJ's conclusion that Windsor deliberately

                     8
failed to take adequate measures to comply with a mandatory safety
standard.

III.

Windsor also argues that the civil penalty imposed for the violation
is excessive. Following a hearing, the ALJ is authorized to determine
de novo the amount of the civil penalties that should be imposed pur-
suant to the factors set forth in 30 U.S.C. § 820(I).6 In assessing the
penalty, the ALJ found the Secretary's proposed penalty of $1,200
inadequate to effectuate the intent and purpose of the Act. The ALJ,
thus, increased the civil penalty to $4,000.7 We review civil penalties
only for abuse of discretion. See, e.g., B.L. Anderson, Inc. v.
FMSHRC, 668 F.2d 442, 444 (8th Cir. 1982).

Windsor contests the ALJ's findings and conclusions concerning
its history of violations, its negligence, and the gravity of the viola-
tions. However, we cannot find that the ALJ erred in his application
of the statutory criteria to the facts of this case. Windsor had commit-
ted over one hundred violations of Section 75.400 during the two-year
period preceding the inspection on June 21, 1996. Furthermore, all
eleven of the most recent Section 75.400 violations were for accumu-
lations along belt lines, two of them along the number nine belt. Thus,
the ALJ did not err in finding that Windsor's history of Section
75.400 violation was poor. In light of this court's decision regarding
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6 The following factors must be considered in assessing penalties:

          (1) the operator's history of previous violations; (2) the appropri-
          ateness 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 person
          charged in attempting to achieve rapid compliance after notifica-
          tion of a violation.

30 U.S.C. § 820(I).
7 Although the fine is greater than that recommended by the Secretary,
it is considerably less than the maximum permitted under the statute. The
maximum penalty that could have been imposed for the violation is
$50,000. 30 U.S.C. § 820(a).

                    9
the nature of the violation, we cannot say the ALJ erred in finding that
the violation was serious or that it was due to a high degree of negli-
gence. Accordingly, we find that the penalty imposed was not an
abuse of discretion.

IV.

Considering the record as a whole, there is substantial evidence to
support the ALJ's findings of fact. In addition, upon the facts of the
present case, the imposed penalty was not excessive or an abuse of
discretion. For the foregoing reasons, the Order of the Commission is
affirmed.

AFFIRMED

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