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FREEMAN UNITED COAL MINING COMPANY v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION AND SECRETARY LABOR </h1> <p class="docCourt"> </p> <p> March 11, 1997 </p> <p class="case-parties"> <b>FREEMAN UNITED COAL MINING COMPANY, PETITIONER<br><br>v.<br><br>FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION AND SECRETARY OF LABOR, RESPONDENTS</b><br><br> </p> <div class="caseCopy"> <div class="facLeaderBoard"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACLeaderBoard */ google_ad_slot = "8524463142"; google_ad_width = 728; google_ad_height = 90; //--> </script> <script type="text/javascript" src=""> </script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p><br> Before: Edwards, Chief Judge, Wald and Sentelle, Circuit Judges.</p></div> <div class="numbered-paragraph"><p> Edwards, Chief Judge</p></div> <div class="numbered-paragraph"><p> FOR PUBLICATION</p></div> <div class="numbered-paragraph"><p> FOR THE DISTRICT OF COLUMBIA CIRCUIT</p></div> <div class="numbered-paragraph"><p> Argued January 31, 1997</p></div> <div class="numbered-paragraph"><p> Consolidated with No. 96-1186</p></div> <div class="numbered-paragraph"><p> On Petitions for Review of Orders of the Federal Mine Safety and Health Review Commission</p></div> <div class="numbered-paragraph"><p> Opinion for the Court filed by Chief Judge Edwards.</p></div> <div class="numbered-paragraph"><p> Opinion dissenting in part filed by Circuit Judge Wald.</p></div> <div class="facAdFloatLeft"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACContentLeftSkyscraperWide */ google_ad_slot = "1266897617"; google_ad_width = 160; google_ad_height = 600; //--> </script> <script type="text/javascript" src=""></script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p> This case arose when four employees were injured following the collapse of a section of cement walkway in a coal preparation plant owned by petitioner Freeman United Coal Mining Company ("Freeman"). The collapse resulted from severe corrosion of the steel beams supporting the walkway. An Administrative Law Judge ("ALJ") found that Freeman and two of its supervisors - petitioners James Yancik and Neal Merrifield - were liable for civil penalties based on their violation of 30 C.F.R. Section(s) 77.200 (1996), which requires that "[a]ll mine structures, enclosures, or other facilities (including custom coal preparation) ... be maintained in good repair to prevent accidents and injuries to employees."</p></div> <div class="numbered-paragraph"><p> Under section 110(a) of the Mine Act, 30 U.S.C. Section(s) 820(a) (1994), the operator of a coal mine faces strict liability for any violation of a mandatory safety standard. Freeman argues that 30 C.F.R. Section(s) 77.200 is unconstitutionally vague, but we find this claim meritless. Although the cited regulation is admittedly general, it is clear enough to provide notice of the conduct that it requires or prohibits. Moreover, in this case, it is plain from the record that Freeman had notice of a corrosion problem in its plant and the safety hazard it posed. As a result, Freeman cannot claim that it was unaware of its responsibility to maintain the structural integrity of its plant against corrosion. Under section 110(c) of the Mine Act, 30 U.S.C. Section(s) 820(c) (1994), individual corporate agents are personally liable for a safety violation if they "knowingly authorized, ordered, or carried out [the] violation." Id. (emphasis added). The Federal Mine Safety and Health Review Commission ("FMSHRC" or "Commission") has defined "knowledge" under section 110(c) to include both actual knowledge and having "reason to know" of a violative condition. The FMSHRC has also held that liability under section 110(c) requires "aggravated conduct" rather than "ordinary negligence." We find this interpretation of the statute to be reasonable and permissible. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., <a>467 U.S. 837</a>, 843 (1984). In the instant case, however, the ALJ did not find that Yancik and Merrifield "knowingly" violated Section(s) 77.200; rather, the ALJ focused on a nebulous concept of "high negligence." On the record at hand, we can discern no reasonable basis for a finding that Yancik or Merrifield "knowingly authorized" the safety violation, or that they engaged in "aggravated conduct." Therefore, we conclude that the ALJ's finding of "high negligence" - whatever it means - cannot support a finding of liability under section 110(c). Accordingly, we grant Yancik and Merrifield's petitions for review and reverse the findings of individual liability by FMSHRC.</p></div> <div class="numbered-paragraph"><p> I. Background</p></div> <div class="numbered-paragraph"><p> Freeman operates the Orient Mine No. 6 near Waltonville, Illinois. The original coal preparation plant at the mine, where the collapse at issue in this case occurred, was built in 1968. In 1984, a new coal preparation plant was constructed at the mine immediately adjacent to the old plant. The old plant was left standing and continued to be used for certain operations in conjunction with the new facilities. See Joint Appendix ("J.A.") 58-59.</p></div> <div class="numbered-paragraph"><p> Because of the nature of the plant's operations, the steel columns and beams framing the old plant had been, and continued to be, subject to pervasive corrosion. See J.A. 59. Following the collapse of a conveyor belt in 1987, Freeman began a rehabilitation program for the old plant. As part of this program, Freeman hired the engineering firm of Roberts & Schaefer to assess the structural integrity of the facility. On November 30, 1989, Roberts & Schaefer issued its report. Although Roberts & Schaefer found that, in the majority of cases, enough metal remained in the steel members to support reduced loads in the old plant, see Government Exhibit 3 at 2, reprinted in Exhibits, Volume I, the report cautioned that "[a]mong the items that need immediate attention are beams and columns where holes exist or can be punched out with a hammer," id. at 3. The report also made clear that its findings were "based only upon a visual inspection," and it warned that the "[e]xtent of deterioration and actual safety of [the] structure cannot be determined without extensive measuring, testing, and calculation." Id. at 5. The report identified a number of specific areas that needed repair, but did not mention the walkway area at issue in this case. Freeman undertook the repairs suggested by the Roberts & Schaefer report and had substantially completed work on the specific items mentioned in the report by mid-1990. See Hearing Transcript ("Tr.") at 482-83, reprinted in Exhibits, Volume II. In addition, Freeman established an ongoing program of inspection and rehabilitation at the old plant. Inspections were carried out by Yancik, Freeman's Manager of Quality Control and Preparation Plant Maintenance, who reported on his findings to the Vice President of Operations and others. From October 1991 on, the Vice President of Operations was Merrifield. Yancik claims that he was in the old plant almost every week and conducted formal inspections on a quarterly basis. See Tr. at 387, 415. Reports of his inspections, introduced into evidence, were dated October 1987; March, May, and December 1988; March 1989; January, October, and December 1990; February, August, and December 1991; March and June 1992; and March 1993. See Respondents' Exhibit 2, reprinted in Exhibits Volume I. Yancik's inspections consisted of a visual survey of the structure of the plant and testing with a hammer any steel beams that appeared to be corroded. See Tr. at 415.</p></div> <div class="numbered-paragraph"> <p> Yancik is a mining engineer, but not a structural engineer. See Tr. at 383. As a result, the final determinations regarding repairs were made by the engineering department at Freeman. See Tr. at 408. The engineering department also reported to the Vice President for Operations - Merrifield - who was responsible for prioritizing repairs, approving budgets and implementing the rehabilitation program for the old plant. See Tr. at 439, 497. There was no evidence that Merrifield ever delayed repairs recommended by the engineering department or that he ever denied the department any requested resources to maintain the plant. 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