Arch of Kentucky, Inc.

Plain-English summary

Arch of Kentucky contested a roof-support citation and an imminent-danger order issued after an unintentional roof fall at Mine No. 37. The parties agreed that the roof conditions resulted without fault by the operator, which had barricaded the area and withdrawn mine personnel. Judge George A. Koutras approved the settlement, modified the imminent-danger order to a section 103(k) control order, vacated the roof citation and its proposed penalty, and dismissed the contests.

Decision snapshot

• Governing provisions: 30 C.F.R. § 75.202; 30 U.S.C. §§ 813(k), 814(a), and 817(a)
• Outcome: The settlement was approved, the imminent-danger order was modified to a control order, the citation and proposed penalty were vacated, and all contests were dismissed.
• Key point: An unintentional roof fall with prompt barricading and withdrawal of personnel supported replacing the imminent-danger order with a control order and vacating the citation.

Full text (FMSHRC public release)

CCASE:
ARCH OF KENTUCKY v. SOL (MSHA)
DDATE:
19910815
TTEXT:

           Federal Mine Safety and Health Review Commission
                  Office of Administrative Law Judges
                         2 Skyline, 10th Floor
                          5203 Leesburg Pike
                     Falls Church, Virginia 22041

ARCH OF KENTUCKY, INC., CONTEST PROCEEDINGS
CONTESTANT
v. Docket No. KENT 91-14-R
Order No. 3384420; 9/10/90
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Docket No. KENT 91-15-R
ADMINISTRATION (MSHA), Citation No. 3388902; 9/12/90
RESPONDENT
Mine No. 37
Mine ID 15-04670

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 91-155
PETITIONER A.C. No. 15-04670-03633
v.
No. 37 Mine
ARCH OF KENTUCKY, INC.,
RESPONDENT

                               DECISIONS

Appearances: Mary Sue Taylor, Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Respondent/Petitioner;
Marco M. Rajkovich, Esq., Wyatt, Tarrant & Combs,
Lexington, Kentucky, for the Contestant/Respondent

Before: Judge Koutras

Statement of the Proceedings

 These consolidated proceedings concern a proposal for

assessment of civil penalty filed by the Secretary of Labor
(MSHA), against the respondent mine operator (Arch of Kentucky,
Inc.), pursuant to section 110(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 820(a), seeking a civil penalty
assessment of $390, for an alleged violation of mandatory safety
standard 30 C.F.R. 75.202 (Docket No. KENT 91-155). Docket No.
KENT 91-15-R, concerns a Notice of Contest filed by Arch
challenging the legality and propriety of the citation, and
Docket No. KENT 91-14-R, concerns a Notice of Contest filed by
Arch challenging an imminent danger order issued by the inspector
following the issuance of the contested citation.

 The contested citation and order were consolidated for

hearing in Pikeville, Kentucky, on July 24, 1991, with two
additional cases involving these same parties. The parties
appeared and presented testimony and evidence with respect to
these additional two cases. With regard to the instant dockets,
the parties informed me of their mutually agreed upon settlement
disposition of the cases without the necessity of a full hearing,
and their arguments were heard on the record.

Stipulations

    The parties stipulated in relevant part as follows (Tr.

5-6):
1. The contestant/respondent is a large mine operator.

         2. The contestant/respondent is subject to the
         jurisdiction of the Act and the presiding
         administrative law judge.

         3. Payment of the proposed civil penalty assessment
         will not adversely affect the respondent's ability to
         continue in business.

                                 Discussion

KENT 91-155 and KENT 91-15-R

 The contested section 104(a) "S&S" Citation No. 3388902,

issued by MSHA Inspector Daniel L. Johnson at 10:50 a.m., on
September 12, 1990, cites an alleged violation of mandatory
safety standard 30 C.F.R. 75.202, and the cited condition or
practice is described as follows:

         The mine roof is not adequately supported on the empty
         track entry starting 50 feet outby the seventh crosscut
         and extending inby approximately 400 feet. An
         unintentional roof fall has occurred in the
         intersection of the seventh crosscut and the mine roof
         has broken and sagged along the left rib for a distance
         of approximately 220 feet on the inby side. The mine
         roof has also broken down the right rib for a distance
         of approximately 200 feet inby the left rib break.

         This citation is issued as a contributing factor to
         107-A Order No. 3384420. Therefore no termination time
         is set.

KENT 91-14-R

 The contested section 107(a) Imminent Danger Order No.

3384420, issued by Inspector Johnson at 4:50 p.m., on September
12, 1990, states in relevant part as follows:

      An unintentional roof fall has occurred in the main
      empty track entry approximately seven-hundred and
      twenty feet inby the portal.
      The following conditions constitute an imminent danger.
      The mine roof, for a distance of approximately two
      hundred feet inby the fall area has cut down the left
      rib and is sagging. The right rib has also cut
      approximately the same distance but is not sagging.
      The operator does intend to recover the area. This
      order is issued to insure only those persons referred
      to in section 104-c of the Mine Act may work or travel
      in the area until the roof has been stabilized.

 MSHA's counsel stated that after further consideration of

all of the evidence in this case, including consultation with
Inspector Johnson, who was present in the courtroom and available
for testimony, MSHA has decided to vacate and modify the
contested section 107(a) danger order to a section 103(k) order,
and that Arch has agreed to withdraw its Notice of Contest
challenging the section 107(a) order (Docket No. KENT 91-14-R).

 With regard to the contested section 104(a) citation, MSHA's

counsel asserted that MSHA has decided to vacate the citation,
and counsel moved to withdraw its proposal for assessment of
civil penalty, and Arch agreed to withdraw its contests.

 In support of the motions for the aforementioned proposed

dispositions of these cases, MSHA's counsel stated that the cited
roof conditions resulted from an unintentional roof fall which
occurred through no fault of the mine operator. Counsel pointed
out that the operator barricaded the fall area and took immediate
precautionary and corrective action, including the withdrawal of
all mine personnel from the affected area. Counsel asserted
further that under all of these circumstances, the inspector
should have issued a section 103(k) control order rather than a
section 107(a) imminent danger order, and that a violation of
section 75.202, cannot be supported. Counsel confirmed that the
proposed dispositions were made in consultation with the
inspector and that he agreed that they were reasonable and proper
in the circumstances (Tr. 6-8).

                                  Conclusion

 After careful review of the pleadings, and the arguments

presented by MSHA's counsel, and taking into account the
concurrence of the inspector who issued the contested citation
and order, the proposed settlement disposition of these cases was
approved from the bench. My bench decision is herein reaffirmed
and I conclude and find that the dispositions made and approved
are in the public interest.

                                     ORDER

IT IS ORDERED THAT:

     1.   Docket No. KENT 91-14-R. The contested section
          107(a) Order No. 3384420, September 12, 1990, IS
          VACATED AND MODIFIED to a section 103(k) order. The
          contestant's notice of contest is withdrawn and this
          case is dismissed.

     2.   Docket No. KENT 91-155. The contested section 104(a)
          "S&S" Citation No. 3388902, September 12, 1990, 30
          C.F.R.   75.202, IS VACATED, the proposed civil penalty
          assessment is withdrawn, and this case is dismissed.

    3.    Docket No. KENT 91-15-R. The contestant's notice of
          contest is withdrawn and this case is dismissed.

                                        George A. Koutras
                                        Administrative Law Judge