Youghiogheny & Ohio Coal Company

Plain-English summary

Youghiogheny & Ohio Coal Company was cited for two violations of its approved roof control plan at the Nelms No. 2 underground coal mine. The Commission affirmed the unwarrantable-failure findings for both violations and affirmed the significant-and-substantial finding for the temporary roof-support violation. It vacated the significant-and-substantial finding and civil penalty assessment for the unsupported “hole through” violation because continued mining would not expose miners to that area, and remanded that penalty for reconsideration. The decision therefore left one violation's findings intact while sending the other violation's penalty back to the judge.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.200
• Outcome: The Commission affirmed the unwarrantable-failure findings for both violations, affirmed one significant-and-substantial finding, vacated the other, and remanded the related penalty.
• Key point: Significant-and-substantial analysis asks whether continued normal mining would make an injury-producing event reasonably likely.

Full text (FMSHRC public release)

CCASE:
YOUGHIOGHENY & OHIO COAL
DDATE:
19871211
TTEXT:

                                   FMSHRC-WDC
                                  December 11, 1987

YOUGHIOGHENY & OHIO COAL COMPANY

   v.                              Docket Nos. LAKE 86-21-R
                                               LAKE 86-30-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

   v.                              Docket No. LAKE 86-56

YOUGHIOGHENY & OHIO
COAL COMPANY

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

               DECISION

BY THE COMMISSION:

In this proceeding arising under the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. $ 801 et seq. (1982)("Mine Act"),
the issues are whether Commission Administrative Law Judge
Gary Melick erred in concluding that two violations of a mandatory
safety standard were the result of Youghiogheny and Ohio Coal
Company's ("Y&0") "unwarrantable failure" within the meaning of
section 104(d)(1) of the Mine Act, 30 U.S.C. $ 814(d)(1); whether
the two violations were of a "significant and substantial" nature;
and whether the procedure followed by the judge in assessing civil
penalties for the violations was proper. 1/ For the

1/ Section 104(d)(1) states:

Page 2

     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

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reasons that follow, we affirm the judge's unwarrantable failure
findings and one of the two significant and substantial findings,
but reverse as to the other significant and substantial finding
and remand that matter for reconsideration of the civil penalty.

                  I.

Y&O's Nelms No. 2 Mine, an underground coal mine, is located

in Harrison County, Ohio. On Friday, October 25, 1985, Inspector
Franklin Homko of the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued to Y&0 a citation for failure to comply
with the mine's approved roof control plan in violation of 30 C.F.R.
$ 75.200. 2/ The citation charged non-compliance with the plan's
requirements for temporary roof supports in the face areas of the
A entry, D entry, and

 such 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 [Act]. If,
 during the same inspection or any subsequent inspection
 of such mine within 90 days after the issuance of such
 citation, an authorized representative of the Secretary
 finds another violation of any mandatory health or safety
 standard and finds such violation to be also caused by an
 unwarrantable failure of such operator to so comply, he
 shall forthwith issue an order requiring the operator to
 cause all persons in the area affected by such violation,
 except those persons referred to in subsection (c) to be
 withdrawn from, and to be prohibited from entering, such
 area until an authorized representative of the Secretary
 determines that such violation has been abated.

2/ 30 C.F.R. 75.200, which restates section 302(a) of the Mine Act,
30 U.S.C. $ 862(a), provides in part:

 Each operator shall undertake to carry out on a
 continuing basis a program to improve the roof control
 system of each coal mine and the means and measures to
 accomplish such system. The roof and ribs of all active
 underground roadways, travelways, and working places shall

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be supported or otherwise controlled adequately to protect
persons from falls of the roof or ribs. A roof control plan
and revisions thereof suitable to the roof conditions and
mining system of each coal mine and approved by the Secretary
shall be adopted and set out in printed form.... The plan
shall show the type of supported spacing approved by the
Secretary.

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the D to E crosscut in the No. 3 section. This citation was not
contested. The following Monday, October 28, 1985, the inspector
returned to the mine and found that the conditions leading to the
October 25 citation had been corrected and that mining had advanced
in the A and D entries and in the D to E crosscut. However, the
inspector again found that temporary roof supports in these areas did
not comply with the roof control plan and therefore violated section
75.200. The inspector further found that the violation resulted from
Y&O's unwarrantable failure to comply with the cited standard and that
it constituted a significant and substantial violation. Therefore,
the inspector issued a section 104(d)(1) order of withdrawal (Order
No. 2823806).

Subsequently, on November 19, 1985, the inspector conducted an

inspection of the No. 5 section. The entries in the No. 5 section
had been advanced by a continuous mining machine ("continuous miner")
and cuts had been made in the sides of the entries at an obtuse angle
("fan cuts"). The inspector observed that a fan cut on the right side
of one of the entries had cut into a corresponding fan cut on the left
side of the adjacent entry. The roof in the area created by this
"hole through" was unsupported. The inspector found that in making
the "hole through" into an area where the roof was not supported, Y&0
violated its approved roof control plan. Accordingly, the inspector
cited Y&0 for a violation of section 75.200, made unwarrantable
failure and significant and substantial findings, and issued an order
of withdrawal pursuant to section 104(d)(1) (Order No. 2823831).

Following an evidentiary hearing, the judge found that the

violations occurred, were "unwarrantable" and "significant and
substantial" within the meaning of section 104(d)(1) of the Mine Act,
and assessed civil penalties of $800 and $500 for the violations.
8 FMSHRC 948 (June 1986)(ALJ). In determining that the temporary
roof support violation (Order No. 2823806) was the result of Y&O's
unwarrantable failure to comply with section 75.200, the judge
concluded that "the repetition of the same type of violation within
such a short time shows indifference or lack of due diligence or
reasonable care." 8 FMSHRC at 954. The judge held that Y&0 "should
have known" of the violation. Id. The judge found that the "hole
through" violation (Order No. 2823831) was attributable to
unwarrantable failure for the same reason. 8 FMSHRC at 954.

On review Y&0 does not challenge the findings of violation,

but argues that the judge applied an incorrect legal standard in
determining that the violations resulted from unwarrantable failure
on its part. Y&O's arguments are virtually identical to those of

Page 6

the operator in Emery Mining Co., 9 FMSHRC , slip op. at 3,
WEST 86-35-R (December 11, 1987), a case that we also decide today.
Y&0 argues, as did the operator in Emery, that the judge's decision
construes unwarrantable failure as equivalent to ordinary negligence.
It asserts that this result is erroneous because it conflicts with the
carefully balanced enforcement scheme of the Act and distorts the
proper focus of section 104(d). We agree.

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II.

In Emery, we concluded that unwarrantable failure means

aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act. Emery,
slip op. at 1, 8. This conclusion was based on the ordinary meaning
of the term "unwarrantable failure," the purpose of unwarrantable
failure sanctions within the Mine Act, and the relevant legislative
history and judicial precedent. We stated that whereas negligence
is conduct that is "inadvertent," "thoughtless," or "inattentive,"
unwarrantable conduct is conduct that is described as "not
justifiable" or "inexcusable". Only by construing unwarrantable
failure by a mine operator as aggravated conduct constituting more
than ordinary negligence, do unwarrantable failure sanctions assume
their intended distinct place in the Act's enforcement scheme.
Emery. slip op. at 5.

We noted that section 104(d) is an integral part of the

Mine Act's enforcement scheme, a scheme that, as an incentive for
operator compliance, provides for "increasingly severe sanctions for
increasingly serious violations or operator behavior." Emery, slip
op. at 4 (quoting Cement Division, National Gypsum Company, 3 FMSHRC
822, 828 (April 1981)). We further observed that in the Mine Act
unwarrantable failure is but one description of the type of operator
conduct that evokes particular sanctions. We concluded that the Mine
Act's use of different terms within the same statute demonstrates that
Congress intended the different terms to censure different types of
operator conduct within a graduated enforcement scheme. Emery slip
op. at 5 We noted further the insistence of the Secretary that
equating ordinary negligence with unwarrantable failure "grossly
mischaracterize[s]" his position, and that our construction of
unwarrantable failure to mean aggravated conduct constituting more
than ordinary negligence is fully consistent with the manner in which
the Secretary enforces the Mine Act. Emery, slip op. at 5, 6.

Finally, we found that construing unwarrantable failure

consonant with its ordinary meaning and based upon the purpose of
the Act's unwarrantable sanctions was in substantial harmony with the
legislative history and judicial precedent bearing on the provision.
Emery, slip op. at 7-8. Consequently, we held that unwarrantable
failure means aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the Act.
III.

Applying this conclusion to the case at hand, we hold that

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substantial evidence supports the judge's findings that the
violations at issue were the result of Y&O's unwarrantable failure
to comply with section 75.200.

The judge's finding that the temporary roof support violation

(Order No. 2823806) was attributable to unwarrantable failure was
premised upon the fact that the inspector had cited a similar
violation of section 75.200 in the same area on October 25, only
three days before the issuance of Order No. 2823806. In addition,
the judge noted that

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preshift examinations of the affected area were conducted but
that the violative conditions had not been reported. 8 FMSHRC at
950-51. Y&0 argues that the temporary roof supports of the last
row in the A entry were only 7, 10, and 2 inches in excess of the
maximum distance to the faces. Y&0 also argues that it had directed
experienced miners to correct the previous violation but that for
"unknown reasons they bolted and repositioned temporary supports
incorrectly". Y&0 Br. 2. 3/

 The inspector testified that during 1985 there were 17 roof

falls at the mine and that two occurred on the No. 3 section. This
history of roof falls placed Y&0 on notice that heightened scrutiny
to assure compliance with its roof control plan was vital. Given the
prior violation of section 75.200 in the same area of the mine only
days before the violation at issue occurred and the extent of the
violative condition, we find that Y&O's conduct in relation to the
violation was more than ordinary negligence and that substantial
evidence supports the judge's conclusion that the violation resulted
from Y&O's unwarrantable failure.

Regarding the "hole through" violation (Order No. 2823831),

the judge based his unwarrantable failure finding upon the fact that
the roof control plan, without exception, prohibits cutting through
to areas in which the roof is not supported adequately. Yet in this
case Y&O's section foreman, who was at the controls of the continuous
miner, nonetheless cut through into an area of unsupported roof.
8 FMSHRC at 954. Y&0 argues that the "hole through" was not
deliberate but accidental. Y&0 Br. 7. This assertion is contradicted
by the record. A member of Y&O's safety department testified that
the "hole through" was done deliberately for ventilation purposes.
Tr. 266, 285-87. In any event, even if the "hole through" were
accidental, the roof control plan clearly prohibits cutting through
into areas of unsupported roof and the section foreman is responsible
for compliance with the plan. In discharging this important
responsibility the section foreman is held to a "demanding standard of
care in safety matters." Wilmot Mining Co., 9 FMSHRC 684, 688 (April
1987) Here, the section foreman's conduct in "holing through" did not
meet that standard and demonstrated a serious lack of reasonable care,
exceeding ordinary negligence and constituting an unwarrantable
failure to comply with section 75.200.

Regarding the significant and substantial nature of the

temporary roof support violation (Order No. 2823806), the judge
was persuaded by the testimony of the inspector that there existed a
reasonable likelihood that the hazard contributed to by the violation

Page 10

would result in a partial or complete roof fall resulting in serious
or fatal injuries. 8 FMSHRC at 950. We have held that a violation
is properly designated significant and substantial "if, based on the
particular

3/ The misplaced temporary supports in the A entry constituted only
a part of the violation. There were other violative conditions.
In the D entry there was one missing temporary support, and in the
D to E crosscut there was one missing temporary support and one
temporary support that was misplaced by 10 inches. On review Y&0
does not address these conditions.

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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." National Gypsum, 3 FMSHRC
at 825. In Mathies Coal Co., 6 FMSHRC 1, 3.4 (January 1984), we
explained:

          In order to establish that a violation of a
 mandatory safety 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.

The third element of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury." U.S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (August 1984) (emphasis deleted). We have
emphasized that, in accordance with the language of section 104(d)(1),
it is the contribution of a violation to the cause and effect of a
hazard that must be significant and substantial. Id.

Y&0 admits that it was not in compliance with its roof control

plan. The evidence establishes that the discrete safety hazard
contributed to by the violation was the danger of a roof fall. The
issue is whether there was a reasonable likelihood that the hazard
contributed to would result in an event in which there is an injury.
The improperly supported roof was in the face areas of the No. 3
section and additional mining was planned in those areas. Continued
normal mining operations would bring miners under the inadequately
supported roof. Lawrence Wehr, a member of Y&O's safety staff,
conceded that miners in the cited area would be subject to danger.
Tr. 135.37, 138-41. Given the history of unstable roof at the Nelms
No. 2 mine and the fact that continued normal mining operations would
endanger miners, an injury causing roof fall was reasonably likely.
Therefore, substantial evidence supports the administrative law
judge's finding that this violation was of a significant and
substantial nature.

In concluding that the "hole through" violation (Order

No. 2823831) was of a significant and substantial nature, the
judge relied upon the testimony of the inspector who stated that the

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"hole through" exposed a large area of unsupported roof and presented
a significant roof fall hazard. 8 FMSHRC at 954. Although the
Secretary established that the "hole through" constituted a violation
of section 75.200 and that the violation contributed to the danger of
a roof fall, we conclude that substantial evidence does not support a
finding that there was a reasonable likelihood that a roof fall would
result in an injury.

It is undisputed that the section foreman operating the
continuous

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mining machine was under supported roof at all times when he made
the fan cuts and the "hole through." Tr. 230, 241, 246, 268, 273-74.
It also is undisputed that Y&0 was not going to mine further the
rooms involved; these were the last cuts. Thus, had normal mining
operations continued, no miners would have entered the rooms in which
the "hole through" occurred. In addition, Y&0 posted danger signs at
the entrance to the rooms leading to the "hole through." In light of
these facts, we hold that substantial evidence does not support the
judge's conclusion that the violation significantly and substantially
contributed to a mine safety hazard.

 Finally, we turn to the penalty aspects of the case. Y&0

contends that in proposing civil penalties for the violations,
the Secretary did not adhere to his penalty regulations. (30 C.F.R.
Part 100) and that a remand to the Secretary is therefore necessary.
Similar arguments by Y&0 were addressed in detail by the Commission
in another decision issued while the present case was pending on
review. Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 679-80 (April
1987). As explained in this prior decision, the Commission possesses
explicit statutory authority to assess an appropriate penalty based
on the record evidence developed before it pertaining to the
statutory penalty criteria of section 110(i). 30 U.S.C. $ 820(i).
The Commission's penalty assessments are subject to judicial review.
Because the record developed in an adversarial proceeding concerning
the statutory penalty criteria will invariably be more complete and
fairly balanced than the information normally available to the
Secretary when he unilaterally proposes a civil penalty, no compelling
legal or practical purpose would be served by requiring the Secretary
to repropose a penalty after a hearing in a civil penalty proceeding
has been concluded. Here, a full evidentiary hearing has been held
and the judge has assessed civil penalties based on the evidence.
Therefore, as in the prior case, the proper course is to review the
judge's penalty assessment to determine whether it is supported by the
record.

In assessing a civil penalty of $500 for the "hole through"

violation (Order No. 2823831) the judge considered his finding that
the violation was significant and substantial but did not expressly
refer to the gravity of the violation. 8 FMSHRC at 954. Although
the penalty criterion of "gravity" (30 U.S.C. $ 820(i)) and the
significant and substantial nature of a violation (30 U.S.C. $814(d))
are not identical, they are based frequently upon the same or similar
factual considerations. Quinland Coals, Inc., 9 FMSHRC 1614, 1622
n. 11 (September 1987). Since we have determined that the "hole
through" violation was not of a significant and substantial nature, we

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remand to the judge to examine the gravity of the violation in light
of this determination and to assess an appropriate civil penalty.

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V.

 Accordingly, we affirm the judge:s unwarrantable failure

findings for both violations and the judge's significant and
substantial finding with respect to the temporary roof support
violation (Order No. 2823806). We vacate the judge's significant
and substantial finding and civil penalty assessment for the "hole
through" violation (Order No. 2823831) and remand that matter for
reconsideration of the civil penalty.

               Ford B. Ford, Chairman

               Richard V. Backley, Commissioner

               Joyce A. Doyle, Commissioner

               James A. Lastowka, Commissioner

               L. Clair Nelson, Commissioner

Distribution

Robert C. Kota, Esq.
Youghiogheny & Ohio Coal Company
P.0. Box 1000
St. Clairsville, Ohio 43950

Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041