Rockhouse Energy Mining Co.

Plain-English summary

Rockhouse Energy Mining operated an underground coal mine in Kentucky where a miner was killed by a roof fall while workers tried to recover a continuous mining machine. MSHA alleged that the mine violated a closure order, roof-support rules, its roof-control plan, sound and vibration testing requirements, and supplementary-support requirements. Judge T. Todd Hodgdon affirmed the closure-order violation, vacated two roof-support orders, modified two other orders, and dismissed the related contest dockets for the vacated orders. The judge assessed $65,000 in penalties for the three violations that remained affirmed, including $40,000 for the sound and vibration testing violation and $20,000 for the supplementary-support violation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.211(b)(2), 75.214(a), 75.220(a)(1)
• Outcome: One citation was affirmed, two orders were vacated and their contests dismissed, two orders were affirmed as modified, and a $65,000 civil penalty was assessed.
• Key point: The judge found that Rockhouse had violated the closure order, failed to perform required roof testing, and lacked sufficient supplementary roof-support materials, but the Secretary did not prove the two other roof-support violations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

                                    July 28, 2004

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 2002-218
Petitioner : A.C. No. 15-17651-03597
:
v. :
:
ROCKHOUSE ENERGY MINING CO., : Mine No. 1
Respondent :
:
ROCKHOUSE ENERGY MINING CO., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. KENT 2001-2-R
: Citation No. 7368962; 9/7/00
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. KENT 2001-7-R
ADMINISTRATION (MSHA), : Order No. 7373434; 9/20/00
Respondent :
: Docket No. KENT 2001-8-R
: Order No. 7373435; 9/20/00
:
: Docket No. KENT 2001-9-R
: Order No. 7373436; 9/20/00
:
: Docket No. KENT 2001-10-R
: Order No. 7373437; 9/20/00

                                     DECISION

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Secretary of Labor;
Mark E. Heath, Esq., (Dennise Smith-Kastick, Esq., on brief), Spilman Thomas &
Battle, Charleston, West Virginia, for Rockhouse Energy Mining Company.

Before: Judge Hodgdon

   These consolidated cases are before me on Notices of Contest and a Petition for

Assessment of Civil Penalty brought by Rockhouse Energy Mining Company and by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA),

                                  26 FMSHRC 599

pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815.
The company contests the issuance of one citation and four orders alleging violations of the
Secretary’s mandatory health and safety standards. The petition alleges the five violations by the
company and seeks a penalty of $230,000.00. A hearing was held in Pikeville, Kentucky. For
the reasons set forth below, I vacate two orders, dismiss two contest dockets, affirm the citation,
modify two orders and assess a penalty of $65,000.00.

                                       Background

   Rockhouse Energy Mining Company operates Mine No. 1, an underground coal mine in

Pike County, Kentucky. Rockhouse is a subsidiary of A. T. Massey Coal Company in
Richmond, Virginia. The mine employs 148 miners on two production shifts and one
maintenance shift, six days a week, and produced 3,000 tons of coal a day in 2000.

    On September 6, 2000, between 6:30 p.m. and 6:50 p.m., the main, or master, breaker on

a continuous mining machine tripped while the machine was approximately 14 feet inby the last
row of permanent roof support in the No. 5 entry. Gary Cochran, an electrician, came to the
scene to assist in recovering the machine. Cochran, Raymond Fletcher, the section foreman, and
another miner began building a crib as temporary roof support to work their way out to the miner.
Before the crib was half finished, a rock measuring approximately 132 inches by 84 inches by 9
inches fell from the roof, striking Cochran and killing him.

   Rockhouse reported the accident that night and MSHA Inspector Kenneth Murray

went to the mine to begin a preliminary investigation. On his arrival, he issued a 103(k) Order,
30 U.S.C. § 813(k), closing the section.

    MSHA Inspectors William C. Cole and Robert Newberry arrived at the mine on the

morning on September 7. When they learned that a Rockhouse survey crew was in the No. 5
entry, they ordered it out and issued a citation for violating the closure order. At the conclusion
of their investigation, they issued four more orders.

                       Findings of Fact and Conclusions of Law

    This case consists of one 104(a) citation, 30 U.S.C. § 814(a), and four 104(d)(1) orders,

30 U.S.C. § 814(d)(1). It is the Secretary’s position that the survey crew was in the No. 5 entry
in violation of the 103(k) order, that Cochran was impermissibly working under unsupported
roof, that the miners failed to follow Rockhouse’s roof control plan in attempting to retrieve the
mining machine, that the section foreman failed to perform sound and vibrations tests prior to
attempting to retrieve the mining machine and that Rockhouse did not have a supply of
supplementary roof support materials available at a readily accessible location on the working
section. I find that the Secretary has proved the 103(k), the sound and vibrations testing and the
supplementary roof support violations, but has not proved the unsupported roof or roof control
plan violations.

                                     26 FMSHRC 600

    The violations will be discussed in the order that they were issued.

    Citation No. 7368962

   This citation alleges a violation of section 103(k) of the Act, because: “The operator was

performing work on the 001-0 MMU after a 103(k) order had been issued after a fatal roof fall.
A survey crew was mapping the area on the section before an investigation had been conducted
by MSHA. The affected area was the 001-0 MMU.” (Jt. Ex. 3.) Section 103(k) provides that:

                   In the event of any accident occurring in a coal or other
           mine, an authorized representative of the Secretary, when present,
           may issue such orders as he deems appropriate to insure the safety of any
           person in the . . . mine, and the operator of such mine shall obtain the
           approval of such representative . . . of any plan to recover any person in
           such mine or to recover the . . . mine or return affected areas of such
           mine to normal.

   Inspector Murray issued Order No. 7373621 to Ken Deskins, the mine Superintendent, at

9:15 p.m. on September 6. The order stated that:

                   The mine has experience[d] a fatal roof fall accident on the
           MMU 001 Section. This Order is issued to assure the safety of any
           person in the coal mine until an investigation is made to determine
           that the MMU 001 Section is safe. Only those persons selected
           from Company Officials, State Officials, the Miners’
           Representative, and other persons who are deemed by MSHA to
           have information relative to the investigation may enter or remain
           in the affected area.

(Jt. Ex. 2.)

     According to his notes, when Inspector Murray gave the order to Deskins, he told Deskins

that the MMU 001 section was “closed.” (Govt. Ex. 1 at 5.) The notes reflect that Deskins then
asked if supplies could be delivered to the section to recover the continuous miner and that
Murray told him “that they could be delivered to the end of the MMU 001 section’s tail track,”
but “no persons or no work could be done in affected area (MMU 001).” (Id.) The notes go on
to state that “Mr. Deskins repeated these instructions (restricted areas) and fully understood” and
that “Mr. Deskins stated he had no problems with the 103(k) order or instructions.” (Id.)

   The company argues that it did not violate the order because it had a duty to conduct its

own investigation of the accident and that “Rockhouse was not put on notice that MSHA was
construing its order is such restrictive fashion.” (Resp. Br. at 20.) These arguments are without
merit.

    Section 103(k) provides that it is MSHA, not the operator, who is in charge of the

investigation. While the Secretary’s regulations require that the operator conduct its own
investigation of the accident, it does not give the operator authority to do so in violation of a
103(k) order. The Respondent does not dispute that Murray’s notes accurately reflect what
Superintendent Deskins was told when the order was given to him. Thus, it is clear that
Rockhouse was put on notice through Deskins what the order prohibited. Deskins apparently
failed to disseminate the information to the appropriate Rockhouse employees. However, it was
the company’s duty to insure that this was done, not MSHA’s.

    Rockhouse goes on to argue that: “If Inspector Murray found it necessary that no one,

including Rockhouse’s investigative team, be in the area for any reason, he should have stated so
in his Order.” (Resp. Br. at 20.) In hindsight, this would have been a good idea. Nevertheless, if
the order was ambiguous, Murray clarified it with his instructions to Deskins. Accordingly, I
conclude that the survey crew violated the order as alleged.

   Negligence

   Inspector Cole testified that he alleged “high” negligence on the part of the operator in

connection with this violation because there were no mitigating circumstances. (Tr. 55.) I find,
however, that there are mitigating circumstances. The company did have a duty to investigate the
accident, and the evidence indicates that they had not been charged with violating 103(k) orders
when they had done so in the past. Further, the company did not attempt to hide the survey team
from the inspectors; the inspectors learned that it was in the mine from the Mine Manager. (Tr.
46.) Finally, there is no evidence that they were using the survey as a pretext for altering the
accident scene. Taking these factors into consideration, I find that the company was
“moderately” negligent with regard to this violation.

   Order No. 7373434

   This order alleges a violation of section 75.202(a) of the Secretary’s regulations, 30

C.F.R. § 75.202(a) in that:

                  A fatal roof fall accident occurred on September 6, 2000,
           when the electrician, Gary Cochran, travelled [sic] inby permanent
           roof support. The victim was building a crib to access the
           continuous miner which was immobilized by an electrical problem.
           The accident occurred near the face of the No. 5 entry on the 001-0
           MMU. The victim had gone inby the last row of permanent roof
           support approximately 3 feet when a rock measuring approximately
           132” X 84” X 9” fell because of a lack of temporary roof support
           causing fatal injuries. Evidence obtained during the accident
           investigation indicated that cribs were routinely installed while
           accessing immobilized equipment inby permanent roof support

           without installing temporary support such as posts or jacks.
           Support materials such as jacks, posts, cap boards, or wedges were
           not available on or near the working section. Other miners were
           also endangered as a result of this practice. The supervisor,
           Raymond Fletcher, was in the working place supervising this
           unsafe work practice.

(Jt. Ex. 4.) Section 75.202(a) requires that: “The roof, face and ribs of areas where persons work
or travel shall be supported or otherwise controlled to protect persons from hazards related to
falls of roof, face or ribs and coal or rock bursts.”

   It is not clear why the inspector alleged a violation of section 75.202(a). The crux of the

charge is that Cochran traveled inby permanent roof support. It would appear that this would be
more properly charged under section 75.202(b), 30 C.F.R. § 75.202(b), which states that: “No
person shall work or travel under unsupported roof unless in accordance with this subpart.”
However, “this subpart,” Subpart C–Roof Support, permits persons installing temporary roof
supports to proceed beyond permanent support. 30 C.F.R. § 75.210(a). And installing temporary
roof support is a means of supporting or otherwise controlling the roof.

    The Secretary’s problem is that she does not think that cribs, which are built by stacking

six inch square by 30 inch long pieces of wood, two by two on top of each other, until they reach
the roof, should be used as temporary support. It appears from the evidence at the hearing that
she is probably right. Cribs take longer to install than either jacks or posts and, therefore,
increase a miner’s exposure to unsupported roof. (Tr. 122.) Nor does it appear that the greater
support provided by cribs over jacks or posts offsets the increased exposure while they are being
constructed. This is particularly true in a situation such as this one where the temporary support
is to be used only to allow someone to access the miner to reset the breaker and the support will
be knocked down by the miner as it is backed out of the entry. However, as the Secretary admits
in her brief, “[i]t is not illegal to use cribs as temporary support . . . .” (Sec. Br. at 12.)

    Since the Secretary has not prohibited the use of cribs as temporary support, she cannot

sustain this violation. Furthermore, the fact that the company did not have a complete supply of
supplementary supports, which is the subject of Order No. 7373437, does not change matters.
The roof fall occurred when the first crib had barely been started. Thus, a complete supply of
supplementary supports would not have prevented the accident.

   I conclude that the Secretary has failed to prove that Rockhouse violated section

75.202(a). Accordingly, I will vacate the order.

                                    26 FMSHRC 603

   Order No. 7373435

   This order charges a violation of Section 75.220(a)(1), 30 C.F.R. § 75.220(a)(1), because:

                    The roof control plan, approved August 25, 1999, was not
           followed on the 001-0 MMU. The plan states on page 11, item 5,
           that, in the event of a breakdown of face equipment inby
           permanent roof support, permanent roof support shall be installed
           as close to the work area as practical. Item 5, further states that
           temporary roof support, if necessary, will then be installed for a
           minimum of 2 rows inby the work area.

                  A fatal roof fall accident occurred when the electrician,
           Gary Cochran, travelled [sic] inby permanent roof support to
           construct a crib in the No. 5 entry of the 001 MMU. Permanent
           supports had not been installed as close as practical to the work
           area. The supervisor, Raymond Fletcher, was in the working place
           supervising this unsafe work practice.

(Jt. Ex. 5.) Section 75.220(a)(1) requires that: “Each mine operator shall develop and follow a
roof control plan, approved by the District Manager, that is suitable to the prevailing geological
conditions, and the mining system to be used at the mine.”

    As stated in the order, item five on page 11 of the Respondent’s roof control plan says

that: “In the event of a breakdown of face equipment inby permanent roof support, permanent
roof support shall be installed as close to the work area as practical.” (Jt. Ex. 8 at 11.) The
parties are in agreement that the continuous miner was face equipment which had broken down
and that this provision applied. They do not agree, however, on what the “work area” was and
whether installing additional roof bolts was “practical.”

    The company asserts that the “work area” was the area on the right side of the mining

machine, because that was the side on which the breaker was. The company further asserts that
roof bolts had already been installed as close to the work area as practical and no further roof
bolts were needed. The Secretary does not address “work area” or “practical,” instead making
the conclusory statement that: “Additional roof bolts could have been installed inby the roof bolts
on the left side of the [continuous miner’s] boom and in the area where the crib was being
constructed.” (Sec. Br. at 15, emphasis added.)

   While the term “work area” is not defined in the roof control plan, Inspector Newberry

agreed with the Respondent, that the work area was on the right side of the mining machine. (Tr.
174.) The term “practical” is also not defined in the plan. Indeed, in looking the word up in the
dictionary, it appears that the word is used in place of the word “practicable” which means:

                  1 : possible to practice or perform : FEASIBLE 2 : capable
           of being used : USABLE

                   syn PRACTICABLE, PRACTICAL means capable of
           being put in use or put into practice. PRACTICABLE applies to
           what has been proposed and seems feasible but has not actually
           been tested in use; PRACTICAL applies to things and to persons
           and implies proven success in meeting the demand made by actual
           living or use.

Webster’s Ninth New Collegiate Dictionary 923 (1986). Thus, it appears that the plan calls for
permanent support to be installed as close as seems feasible. This clearly is a judgment call.

     Inasmuch as Fletcher did not testify, it can only be assumed that he did not think that

installing additional roof bolts was feasible. James Pinson, who was the Mine Foreman at the
time of the accident and is now the Mine Superintendent, and Johnny Robertson, who was the
Safety Coordinator for Massey Coal Services at the time of the accident and is now the Mine
Manager at the Justice Mine, both testified that they had observed the accident scene on the night
of September 6 and that they would not have installed any additional roof bolts prior to trying to
retrieve the miner. (Tr. 298, 349, 377.) Not surprisingly, Inspector Newberry testified that
additional roof bolts could have been installed, particularly on the left side of the miner. (Tr.
156.)

    Obviously, reasonable persons can differ on the feasibility of installing additional bolts in

this case. However, when it came to exactly how the bolts would be installed, the inspector was
less positive as to whether they could actually be installed. (Tr. 171-73.) Furthermore, I find it
significant that when the miner was recovered the next day, the recovery plan approved by
MSHA did not call for additional roof bolts, Inspector Newberry did not suggest to Pinson, who
did the work, that additional roof bolts should be installed, and, in fact, no additional bolts were
installed. (Tr. 170, 300.) Consequently, I conclude that the Secretary has not shown that
Fletcher’s judgment in not installing additional roof bolts was patently incorrect and will vacate
the order.

   Order No. 7373436

   This order alleges a violation of section 75.211(b)(2), 30 C.F.R. § 75.211(b)(2), because:

                   Sound and vibration roof tests, or other equivalent tests,
           were not made prior to installation of roof supports on the 001-0
           MMU. Evidence obtained during an accident investigation
           indicates that no such tests were made prior to installing a crib to
           access equipment immobilized inby permanent roof supports. An
           electrician was fatally injured while constructing a crib. The

                                     26 FMSHRC 605

           supervisor, Raymond Fletcher, was in the working place
           supervising this unsafe work practice.

(Jt. Ex. 6.) Section 75.211(b)(2) provides that:

                   (b) Where the mining height permits and the visual
           examination does not disclose a hazardous condition, sound and
           vibration roof tests, or other equivalent tests, shall be made where
           supports are to be installed. When sound and vibration tests are
           made, they shall be conducted–

           ....

                   (2) Prior to manually installing a roof support. This test
           shall begin under supported roof and progress no further than the
           location where the next support is to be installed.

    Rockhouse does not dispute that Fletcher failed to perform sound and vibration testing

prior to beginning to install temporary roof support. Inspector Newberry testified that Fletcher
told him that “he didn’t do one.” (Tr. 212.) Consequently, I conclude that the Respondent
violated the regulation as alleged.

   Significant and Substantial

    The Inspector found this violation to be “significant and substantial.” A "significant and

substantial" (S&S) violation is described in Section 104(d)(1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

    In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission set out four criteria that

have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).
Evaluation of the criteria is made in terms of "continued normal mining operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a particular
violation is significant and substantial must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (Dec. 1987).

   In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying

violation of a safety standard; (2) a distinct safety hazard, a measure of danger to safety,
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious
nature. Mathies, 6 FMSHRC at 3-4.

    Considering the Mathies criteria, I have already found the underlying violation of section

75.211(b)(2). The company argues that there was no measure of danger to safety contributed to
by the violation because sound and vibration testing “[is] not useful for indicating problems
where the mine has a drummy roof.” (Resp. Br. at 31.) While all parties agreed that the roof in
Mine No. 1 generally had a “drummy” sound, none of the witnesses agreed that because of that
sound and vibration tests were not useful in determining the status of the roof.

    Inspector Cole testified that even in mines with drummy roofs, the miners “at a particular

mine of these conditions, would become accustomed to telling the degree of – [t]he thickness of
the rock. They can get pretty close to what they’ve got by the sound and vibration measuring.”
(Tr. 81-82.) Inspector Newberry testified that sound and vibration testing was useful in a mine
with a drummy roof because, “[w]hen you sound the roof in different areas and you can tell the
change in roof conditions.” (Tr. 198.) Pinson agreed that in a drummy mine “there would be
different sounds” when a fall is imminent as opposed to more stable places. (Tr. 317.) Finally,
Robertson, when asked if he were aware that in a mine with a drummy roof one could listen for
differences in the drummy nature of the roof, that there are degrees of drumminess, responded:
“Absolutely.” (Tr. 386.)

     Therefore, I find that performing a sound and vibration test could have indicated a

possible roof fall and that failure to perform it created a distinct safety hazard of a roof fall.¹
I further find that the third and fourth criteria are met because it is reasonably likely that a roof
fall will result in a reasonably serious injury. As the Commission stated 20 years ago, “[r]oof
falls have been recognized by Congress, the Secretary of Labor, the industry, and this
Commission, as one of the most serious hazards in mining” and “remain the leading cause of
death in underground mines.” Consolidation Coal Co., 6 FMSHRC 34, 37-38 n.4 (Jan. 1984).

    Negligence

    The inspector found the level of negligence in connection with this violation to involve a

“reckless disregard” on the part of the operator. The Secretary’s regulations define “reckless
disregard” as “conduct which exhibits the absence of the slightest degree of care.” 30 C.F.R.
§ 100.3(d). While I find that Fletcher was highly negligent in not knowing about section
75.211(b)(2) and in not performing the tests, I cannot agree that he exhibited an absence of the
slightest degree of care. He did, in fact, perform a visual examination of the area. And since he
did not know of the regulation, it cannot be said that he deliberately ignored it. Accordingly, the
level of negligence for this violation will be reduced from “reckless disregard” to “high.”

   Unwarrantable Failure

    This violation was also charged as resulting from the “unwarrantable failure” of the

company to comply with the regulation.² The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by a mine operator in relation to a
violation of the Act. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987); Youghiogheny,
9 FMSHRC at 2010. “Unwarrantable failure is characterized by such conduct as ‘reckless
disregard,’ ‘intentional misconduct,’ ‘indifference’ or a ‘serious lack of reasonable care.’ [Emery]
at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991).”
Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (Aug. 1994); see also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure
test).

    In this case, Fletcher told Inspector Newberry that he did not perform a sound and

vibration test because he thought he only needed to do a visual exam. (Tr. 211.) Contrary to
Rockhouse’s assertion that since Fletcher was unaware of the regulation the severity of the
violation is not aggravated, I agree with Inspector Newberry that as a certified foreman Fletcher
should have known to perform sound and vibration tests.

    In Warren Steen Construction, Inc., 14 FMSHRC 1125, 1130 (July 1992), the

Commission held: “Although the operator knew of the dangers involved in operating large metal
machinery near energized power lines, it directly exposed its miners to such hazards without
regard for their safety and without taking precautions. Such conduct is aggravated, and
constitutes more than ordinary negligence.” In this case, Fletcher knew, or should have known,
that the mine had an unstable, shale roof, and knew, or should have known, that that made the
danger of going under unsupported roof even greater than normal, yet he exposed his miners to
such a hazard without taking the precaution of performing sound and vibration tests. Such
conduct is aggravated and constitutes more than ordinary negligence.

    In Rochester & Pittsburgh Coal Co., 13 FMSHRC at 194, the Commission held that “an

agent’s conduct may be imputed to the operator for unwarrantable failure purposes.” As
foreman, Fletcher was clearly an agent of Rockhouse. Accordingly, I conclude that the
company’s violation of section 75.211(b)(2) was an unwarrantable failure to comply with the
regulation.

   ² The term “unwarrantable failure” is taken from section 104(d)(1) of the Act, which

assigns more severe sanctions for any violation that is caused by “an unwarrantable failure of
[an] operator to comply with . . . mandatory health or safety standards.”

                                    26 FMSHRC 608

   Order No. 7373437

   This order charges a violation of section 75.214(a), 30 C.F.R. § 75.214(a), because:

                    A supply of supplementary roof support materials such as
           posts or jacks, cap boards and wedges, and the tools and equipment
           necessary to install the materials were not available at a readily
           accessible location on the 001-MMU [sic] working section or
           within four crosscuts of the working section. An electrician was
           fatally injured while installing a crib to provide access to
           equipment immobilized inby permanent supports. The supervisor,
           Raymond Fletcher, was in the working place supervising this
           unsafe work practice.

(Jt. Ex. 7.) Section 75.214(a) requires that: “A supply of supplementary roof support materials
and the tools and equipment necessary to install the materials shall be available at a readily
accessible location on each working section or within four crosscuts of each working section.”

    Inspector Newberry testified that he found 21 crib blocks at the site of the accident and

another 70 blocks more than four crosscuts outby the working section. (Tr. 108, 137, 218, 228.)
He further testified that nowhere did he find any wedges or caps, which are necessary to
complete installation of a crib. (Tr. 108, 110.) Finally, the inspector stated that the 21 crib
blocks found at the scene were not enough to complete one crib. (Tr. 240.) The company does
not dispute this evidence.

   Rockhouse argues that: “The regulation does not require that [an] operator have enough

material to build one crib, six cribs or any other number of cribs, only that a supply be
maintained.” (Resp. Br. at 33.) This argument disregards section 75.214(b), 30 C.F.R.
§ 75.214(b), which states that: “The quantity of support materials and tools and equipment
maintained available in accordance with this section shall be sufficient to support the roof if
adverse roof conditions are encountered, or in the event of an accident involving a fall.” Having
only 21 crib blocks on site, not enough to build even one crib, and having no wedges or caps
anywhere, plainly does not meet the requirements of section 75.214(a). Therefore, I conclude
that Rockhouse violated the regulation.

   Significant and Substantial

    The inspector found this violation to be significant and substantial. He said that because

of the bad roof on the section, Fletcher should have had a heightened awareness of the possibility
of unsafe conditions and better monitored his roof support materials. (Tr. 222.)

   Applying the Mathies criteria, I find: (1) A violation of a safety standard, section

75.214(a); (2) A distinct safety hazard, a measure of danger to safety, contributed to by the
violation, namely the roof going unsupported longer than necessary because the materials were
not available, thereby increasing the danger of a roof fall; (3) A reasonable likelihood that a roof
fall would result in an injury; and (4) A reasonable likelihood that the injury would be of a
reasonably serious nature, most likely fatal, but at a minimum broken bones. Consequently, I
conclude that the violation was “significant and substantial.”

    Negligence

    The inspector found that the negligence attributable to this violation was “high” because

Fletcher was supervising the recovery and should have had a heightened awareness of the need to
have supplementary roof support on hand. On the other hand, there has been no showing that it
was Fletcher’s responsibility to stock the supplementary roof support materials or that he was
aware, when he began the recovery process, that no such materials were within four crosscuts of
the section. Further, even if a full supply of supplementary roof support materials had been
easily accessible it would not have prevented this accident, since the roof fall occurred when the
miners had barely begun building the first crib, before they had used up the materials on the site.

   While Fletcher, and through him the operator, were clearly negligent with respect to the

supply of supplementary roof support, there are mitigating circumstances. Accordingly, I
conclude that the Respondent was “moderately” negligent with regard to this violation and will
modify the citation accordingly.

   Unwarrantable Failure

    For the same reasons that he found “high” negligence, the inspector charged this violation

as involving an “unwarrantable failure.” For the same reasons that I find the violation to involve
“moderate” negligence, I find that it did not involve an unwarrantable failure. The conduct in
connection with this violation was clearly not “intentional,” nor does it evidence “reckless
disregard,” “indifference” or a “serious lack of reasonable care.” In short, it was not aggravated
conduct constituting more than ordinary negligence. Therefore, I will modify this order to a
104(a) citation, 30 U.S.C. § 814(a), by deleting the “unwarrantable failure” designation.

                                Civil Penalty Assessment

    The Secretary has proposed penalties of $20,000.00 for Citation No. 7368962 and

$55,000.00, each, for Order No. 7373436 and Citation No. 7373437, the three violations that
are being affirmed. However, it is the judge’s independent responsibility to determine the
appropriate amount of penalty in accordance with the six penalty criteria set out in section 110(i)
of the Act, 30 U.S.C. § 820(i). Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir.
1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996).

  In connection with those criteria the parties have stipulated that at the time of the accident

Mine No. 1 produced 3,000 tons of coal a day and that payment of the proposed penalties will not
adversely affect Rockhouse’s ability to remain in business. (Tr. 7-9.) From this I find that
Rockhouse is a large company and that payment of the penalty I assess will not affect its ability to
remain in business. Based on the Assessed Violation History Report ³, (Jt. Ex. 9), and the
Proposed Assessment Data Sheet in the file, I find that Rockhouse has an average history of
previous violations.

    Based on the citation forms and evidence Rockhouse presented at the hearing that it is

taking significant steps in attempting to prevent the reoccurrence of this type of accident, I find
that the company demonstrated good faith in attempting to achieve rapid compliance after
notification of the violations. (Jt. Exs. 3-7.) In direct response to this accident, Rockhouse has
expended a considerable sum of money in developing an isolator switch to reset the main power
breaker, a traction breaker reset system, an emergency stop override system and a methane
monitor malfunction override system which will give miner operators the ability to restore power
to a continuous miner and move it to a safe area for servicing without having to build temporary
supports to go under unsupported roof. (Tr. 270, 274, 276, 280; Resp. Exs. E, F and G.)
Additionally, the company has conducted presentations and seminars on these systems to share
this technology with others in the industry. (Tr. 281-82.)

    With regard to Citation No. 7368962, I find the gravity of the violation to be only

moderately serious. While violations of inspectors orders are serious and not to be condoned, it
does not appear to have been an intentional violation and resulted in no harm to the
investigation. As previously discussed, I find the Rockhouse was moderately negligent in
committing this violation.

     The gravity of the violation in Order No. 7373436 is very serious. A death occurred and

it is possible that it would not have occurred if all required precautions were taken prior to
commencing the recovery of the continuous miner. The company exhibited a high degree of
negligence in connection with this violation.

    Finally, the gravity of the violation in Citation No. 7373437 is serious. While the

violation did not cause the fatality, it shows a lack of preparedness on the part of the company in
being able to immediately deal with poor roof conditions. The company was moderately
negligent in committing this violation.

    Taking all of these factors into consideration, I assess a penalty of $5,000.00 for Citation

No. 7368962, a penalty of $40,000.00 for Order No. 7373436 and a penalty of $20,000.00 for
Citation No. 7373437.

   ³ The Assessed Violation History Report was submitted post-hearing. (Tr. 7.)

                                     26 FMSHRC 611

                                         Order

    In view of the above, Citation No. 7368962 and Docket No. KENT 2001-2-R are

AFFIRMED; Order No. 7373434 is VACATED and Docket No. KENT 2001-7-R is
DISMISSED; Order No. 7373435 is VACATED and Docket No. KENT 2001-8-R is
DISMISSED; Order No. 7373436 is MODIFIED by reducing the level of negligence from
“reckless disregard” to “high” and it and Docket No. KENT 2001-9-R are AFFIRMED as
modified; and Order No. 7373437 is MODIFIED from a 104(d)(1) order to a 104(a) citation by
deleting the “unwarrantable failure” designation, and is further MODIFIED by reducing the
level of negligence from “high” to “moderate” and it and Docket No. KENT 2001-10-R are
AFFIRMED as modified.

   Rockhouse Energy Mining Company is ORDERED TO PAY a civil penalty of

$65,000.00 within 30 days of the date of this order.

                                           T. Todd Hodgdon
                                           Administrative Law Judge

Distribution: (Certified Mail)

Anne T. Knauff, Esq., Office of the Solicitor, U. S. Department of Labor,
2002 Richard Jones Road, Suite B-201, Nashville, TN 37215

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Spillman Center, 300 Kanawha Boulevard,
East, P.O. Box 273, Charleston, WV 25321

/hs

                                   26 FMSHRC 612