LJ'S Coal Corporation

Plain-English summary

LJ'S Coal Corporation failed to report a roof fall as required by 30 C.F.R. § 50.10, and a roof-bolting machine became trapped in the fallen area. On remand from the Commission, Judge Avram Weisberger examined each part of the Mathies test for a significant and substantial violation. He found that removing the bolter without installing roof supports exposed miners to unsupported roof, and that an injury was reasonably likely and would likely be serious. The judge therefore concluded that the violation was significant and substantial.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.10
• Outcome: The failure-to-report violation was found significant and substantial on remand.
• Key point: Failing to report a roof fall that traps equipment can contribute to miners being exposed to unsupported roof during recovery work.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 90-356
PETITIONER A. C. No. 15-16477-03526

         v.                                Docket No. KENT 90-399
                                           A. C. No. 15-16637-03528

LJ'S COAL CORPORATION, No. 3 Mine
RESPONDENT
Docket No. KENT 90-400
A. C. No. 15-16477-03529

                                           Docket No. KENT 90-401
                                           A. C. No. 15-16637-03505

                                           No. 4 Mine

                             DECISION ON REMAND

Before: Judge Weisberger

 On August 4, 1992, the Commission issued a decision in these

cases in which it remanded the cases to me ". . . for the limited
purpose of determining whether the failure to report an unplanned
roof fall in violation of 30 C.F.R. 50.10, was S&S. In this
regard, the judge shall analyze each element of the Mathies test
and set forth findings of fact and conclusions of law, and the
reasons or bases supporting his determinations." (14 FMSHRC
_____, slip op. p.6, Docket No. KENT 90-356 et al (August 4,
1992)).

  In its decision (14 FMSHRC, supra, slip op p.4-5) the

Commission set forth as follows the four elements of the Mathies
test.

         In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
    Commission further explained:

         In order to establish that a violation of a mandatory
    standard is significant and substantial under National
    Gypsum the Secretary must prove: (1) the 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 hazard contributed to
    will result in an injury; and (4) a reasonable likelihood
    that the injury in question will be of a

         reasonably serious nature. 6 FMSHRC at 3-4. See also, Austin
    Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th Cir. 1988),
    aff'g 9 FMSHRC 2015, 2021 (December 1987) approving Mathies
    criteria).

 In the case at bar, I previously found a violation of 30

C.F.R. 50.10, in that the Operator had not reported a roof
fall. This finding was based on the testimony of the inspector,
that was not impeached or rebutted, that a cavity in the roof was
evidence of a rock fall, and that it was not reported. I conclude
that the first element of the Mathies, supra test has been met.

 The second element in the Mathies test requires the

Secretary to prove a danger to safety "contributed by the
violation." Mathies supra. Hence, the inquiry is to focus on
whether the violation has contributed to a discrete safety
hazard, i.e. whether the failure to report the roof fall
contributed to a safety hazard.

 As a consequence of the roof fall herein which was not

reported, a roof-bolting machine was entrapped. According to the
inspector, the machine was removed by the operator without the
use of supports. The inspector further indicated that the area of
roof fall, approximately 20 to 30 feet wide and 20 feet high,
would require a "considerable" amount of support in the form of
bolts, cribbing, and posts in order to remove the bolter (Tr.80).

 According to the inspector, upon notification of a roof fall

which entrapped equipment, MSHA would issue an order ensuring the
safety of the area pending an investigation. Also, the operator
might be required to submit a plan instructing all employees on
how the roof will be supported, and the manner in which work will
be advanced to recover the equipment. Under these circumstances,
the failure to report the roof fall contributed to the hazard of
miners being exposed to unsupported roof.

 The third element set forth in Mathies, supra, requires

proof of a reasonable likelihood that the hazard contributed to
will result in an injury. In this connection the inspector
indicated that, based on the "massive" (Tr.85) nature of the
fall, and the hazards involved in the removal of the entrapped
bolter without the installation of a roof supports, he concluded
that a injury would be reasonably likely to occur "because of
this condition" (Tr.84). This opinion was not contradicted or
unpeached by the operator. I conclude that the third element set
forth in Mathies, supra has been met. 

 Should an injury have occurred as a result of miners working

under unsupported roof as a consequence of the violation herein,
it is clear that there would have been a reasonable likelihood
that the resulting injury would have been of a reasonably serious

    nature. Hence, the forth element set forth in Mathies has been

met.

 For all these reasons, I conclude that the violation herein

was significant and substantial.

                         Avram Weisberger
                         Administrative Law Judge