On Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge:
Before: HENDERSON and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Petitioner Black Beauty Coal Company (Black Beauty) petitions for review of an order of the Federal Mine Safety and Health Review Commission (FMSHRC) adopting the findings of its administrative law judge (ALJ) that: (1) Black Beauty violated 30 C.F.R. § 75.400, which prohibits the accumulation of coal and combustible materials in certain areas of a coal mine; (2) the violation was an unwarrantable failure to comply with [§ 75.400]; and (3) the violation constituted high negligence. For the reasons set forth below, we deny the petition.*fn1
Black Beauty operates the Air Quality No. 1 Mine
(Mine), an underground bituminous coal mine located near Vincennes, Indiana. On February 26, 2009, Mine Safety and Health Administration (MSHA) inspector Danny Franklin (Franklin) entered the Mine to inspect its conveyor belts that are used to carry coal out of the Mine. Randy Hammond (Hammond), an inspector escort employed by Black Beauty, accompanied Franklin.*fn2 Shortly after entering the Mine, Franklin noticed the "distinct odor of coal burning" and asked three nearby miners about the smell. Transcript of ALJ Hr'g (Feb. 11, 2011) (Tr.) 80-81 (Joint Appendix (JA) 39A). One of the miners, Wayne Vogel (Vogel), told Franklin that he first noticed the smell approximately thirty minutes earlier. Vogel said he had investigated but had not found a cause so he did not report the burning smell to management.
Franklin then "follow[ed his] nose" and walked to a location where the "three main north" belt dumps coal onto the "one west B" belt. Tr. 83, 85, 159 (JA 40A, 59A). Black Beauty had installed a skirt rubber between the two belts to channel coal and prevent spills. Upon Franklin's arrival at the end of the one west B belt, also known as the "tail," Franklin found coal "packed in around th[e] tail roller" and trapped in the guards surrounding the roller. Tr. 83 (JA 40A). Franklin testified that the packed coal measured "two feet by five feet by 19 inches" and was "packed into a point to where the moving roller was--was turning in this compacted coal." Tr. 85-86 (JA 40A-41A). Franklin believed the coal was "already hot and burning as evidenced by the smell." Tr. 94 (JA 43A). Upon discovering the accumulation, Franklin asked Hammond "what was going to be done with this." Tr. 96-97 (JA 43A). When Hammond said that he would get someone to fix the problem, Franklin said: "[W]ait a minute, and I said I tell you what we're going to do, I'm going to issue an order and we're going to shut the belt off." Tr. 97 (JA 43A).
Hammond disagreed, testifying that the coal was not burning. He believed that the burning smell came from the skirt rubber or the conveyor belt, both of which were made of fire-resistant rubber. He also testified that he did not see smoke or flames. Hammond also testified--as did Franklin-- that neither their personal carbon monoxide detectors nor the Mine's carbon monoxide detectors indicated the presence of combustion. While Franklin testified that the carbon monoxide detectors activate at an "incipient" level of combustion, he also explained that the detectors work only if they are "in the right spot" and that he did not test the carbon monoxide detector at the one west B tail "belt drive." See Tr. 117, 119 (JA 48A-49A).
Hammond and Franklin also disagreed on how long the coal had been turning in the tail roller. Franklin's notes stated that the condition existed for approximately one hour but Hammond testified that the condition existed for only one minute or less before Franklin saw it and was caused by a sudden tear in the skirt rubber. Franklin did not dispute that the coal accumulation was caused by a tear in the skirt rubber or that such a condition could arise suddenly but believed the condition lasted for a longer time than Hammond estimated, primarily because Vogel told him the burning smell began at least thirty minutes before he arrived. Franklin and Hammond also disagreed on whether they saw coal spilling when they arrived at the belt; Hammond testified that he observed coal spilling when he and Franklin approached the one west B belt but Franklin testified that he did not see any spillage.
Franklin issued a citation at approximately 9:40 a.m. on the date of his inspection, concluding:
Combustible material is allowed to accumulate around the 1 West "B" tail roller [in violation of 30 C.F.R. § 75.400]. The accumulations are in the form of loose and fine coal measuring approximately 2 by 5 feet by 19 inches in width. The tail roller was touching and running in coal 17 inches wide by 2 feet tall and 4 feet in length. When inspected there was a distinctive odor indicating there was material getting hot.
With past history, the operator has engaged in aggravated conduct constituting more than ordinary negligence by continuing to violate this standard. This violation is an ...