On Petition for Review of an Order of The Federal Mine Safety and Health Review Commission. No. 12-2033-3589.
Before COFFIN, CUDAHY and ROVNER, Circuit Judges. *fn1
On March 31, 1993, a Mine Safety and Health Administration ("MSHA") inspector cited Buck Creek Coal, Inc. after finding a potentially hazardous coal dust accumulation in one of its mines in violation of federal safety regulations. After hearing evidence from both sides, an administrative law judge entered judgment against Buck Creek. The MSHA Review Commission denied Buck Creek's petition for discretionary review, and Buck Creek now petitions for review in this court. We also deny the petition.
Buck Creek owns and operates a coal mine located in Sullivan County, Indiana. When MSHA inspector James Holland inspected the mine on March 31, 1993, he noted an accumulation of loose coal and coal dust in the "feeder" area, where mined coal is transferred from shuttle cars to conveyor belts. Pursuant to section 104(d)(1) of the Federal Mine Safety Act of 1977, 30 U.S.C. sec. 814(d)(1), he issued a citation, which contained these charges:
Accumulation of loose fine coal and float coal dust, black in color was permitted to accumulate underneath the belt conveyor, tail roller, and feeder from the check curtain behind the feeder and extended inby [sic] the feeder and including all three dumping points, a distance of 116 feet. The accumulations ranged from 2 inches to 3 1/2 feet in depth and 18 feet in width.
According to the citation, the accumulation violated 30 C.F.R. sec. 75.400, which provides:
Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein.
The inspector further found that the violation was both "significant and substantial" and "unwarrantable," as defined in 30 U.S.C. sec. 814(d)(1), which provides:
If, upon any inspection of a coal or other mine, an authorized 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 a 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 operator under this chapter. . . .
Under the authority of 30 U.S.C. sec. 820(i), a $2000 civil penalty for the violation was proposed. After an evidentiary hearing, the administrative law judge ("ALJ") found that each of the inspector's conclusions was supported by the evidence and affirmed the citation and penalty. Not contesting the propriety of either the citation or the penalty, Buck Creek now contests only the ALJ's conclusions, which became those of the Secretary after the MSHA Review Commission declined review, that the violation was both ...