The Helen Mining Company

Plain-English summary

The Helen Mining Company contested a roof-control order concerning forepole pads that were not in contact with the mine roof at the Homer City Mine, while the Secretary also sought a civil penalty. Judge Avram Weisberger found that the roof-control condition violated 30 C.F.R. § 75.200 and warranted a $600 penalty, although the approved roof-control plan itself was not violated. The judge also approved a settlement reducing a separate $700 assessment to $150 and modified that order to a section 104(a) citation. The contest was granted in part and denied in part, with $750 ordered in total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.200 and 75.200
• Outcome: The roof-control violation was affirmed with a $600 penalty, and a separate settlement was approved at $150.
• Key point: A mine may violate the broad roof-support standard even when the approved roof-control plan does not expressly require the specific support condition at issue.

Full text (FMSHRC public release)

CCASE:
HELEN MINING V. SOL (MSHA)
DDATE:
19870612
TTEXT:

Page 2

~1095

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

THE HELEN MINING COMPANY, CONTEST PROCEEDING
CONTESTANT
Docket No. PENN 86-94-R
v. Order No. 2696214; 1/28/86

SECRETARY OF LABOR, Homer City Mine
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
RESPONDENT

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 86-181
PETITIONER A.C. No. 36-00926-03634
v.
Homer City Mine
THE HELEN MINING COMPANY,
RESPONDENT

                               DECISION

Appearances: William T. Salzer, Esq, Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary of Labor;
Ronald B. Johnson, Esq., Wheeling, West Virginia,
for the Helen Mining Company.

Before: Judge Weisberger

                        Statement of the Case

 In these proceedings, Helen Mining Company (Respondent)

seeks to contest a section 104(d)(2) order issued on January 28,
1986. The Secretary (Petitioner) seeks a civil penalty for an
alleged violation of 30 C.F.R. 77.200. Pursuant to notice,
these cases were heard in Pittsburgh, Pennsylvania, on December
16 Ä 17, 1986, and February 2 Ä 3, 1987. William McClure, Roger
Jordan, George Hazuza, Shirley Rine, and Robert Nelson, testified
for the Petitioner. Josep Dunn, Victor Tagliati, and Lynn Harding
testified for the Respondent.

 On February 26, 1987, in Pittsburgh, Pennsylvania, the

Secretary took a deposition of Charles S. Battistoni.

Page 3

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The Petitioner submitted its Proposed Findings of Fact and
Memorandum on April 13, 1987, and the Respondent submitted its
Proposed Findings of Fact and Posthearing Brief on April 21,
1987. Time was allowed for Reply Briefs to be submitted, and
Respondent submitted its Reply Brief on May 29, 1987. Petitioner
did not file any Reply Brief.

 On May 7, 1987, Petitioner filed a Motion for Decision and

Order Approving Settlement to approve a settlement reached
between the parties concerning order number 2696220.

                          Stipulations

 1. The Helen Mining Company owns and operates the Homer City

Mine and is subject to the jurisdiction of the Federal Coal Mine
Safety and Health Act of 1977, Public Law 91Ä173, as amended by
Public Law 95Ä164 (Act).

 2. The Administrative Law Judge has jurisdiction over this

proceeding pursuant to section 105 of the 1977 Act.

 3. The subject order (number 2696214) and termination

thereto were properly served by a duly authorized representative
of the Secretary, William McClure.

 4. A copy of order number 2696214 (attached to the Petition

for Assessment of Civil Penalty) is an authentic copy of the
original citation.

 5. No intervening clean inspection within the meaning of the

Act has been conducted at the Homer City Mine; consequently, the
contestant is within the chain sequence of section 104(d) orders.

 6. The appropriateness of the penalty, if any, to the size

of the coal operator's business should be determined based on the
fact that the Homer City Mine had an annual production for 1985
of 807,434 tons of coal and production to the third quarter of
1986 of 617,250 tons of coal.

 7. At the time of the issuance of order number 2696214 by

Inspector Bill McClure, 13 of 53 forepole pad extensions were not
in contact with the mine roof along the HÄButt No. 4 shortwall
panel of the Homer City Mine.

 8. At the time of the issuance of order number 2696214, the

gap between the top of the forepole pad and the mine roof, at the
13 shields in question, ranged from between 2 to 14 inches.

Page 4

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Findings of Fact

 1. On January 28, 1986, 9:45 a.m., MSHA Resident Inspector

William McClure conducted a quarterly inspection at the HÄButt
No. 4 shortwall panel at the Homer City Mine owned by The Helen
Mining Company.

 2. The shortwall method of mining utilizes a continuous

mining machine which moves along the face of the shortwall panel
and cuts a ten foot wide block of coal from the face. The length
of the shortwall face at the HÄButt No. 4 panel was between 250
and 300 feet. The shortwall system employs a mechanized roof
support systemÄhydraulically powered shields, made by
GullickÄDobson Ltd., that advance with the face.

 3. Support is provided by a pressure arch from the main

canopy of the shield to the coal face. This causes pressure to be
exerted in the face area.

 4. As the continuous miner makes its cut along the face, the

individual shields on the headgate side of the panel are
partially advanced into the void created by the miner's cut. As
the shield is partially advanced, the forepole extension is
extended towards the face in the area where coal has been
removed. It takes approximately 2 hours for the miner to complete
a pass.

 5. The forepole pad component of the shield measures 48

inches wide by 28 inches long. The forepole pad is hydraulically
extended out from within the forward canopy of the shield towards
the face for a distance of approximately 5 feet. The forepole is
designed to support up to approximately 14 tons where it is
against the roof. If it is not against the roof, there is
uncertainty as to its support capacity if hit by material falling
from the roof.

 6. The function of the forepole extension is to reduce the

area of unsupported roof between the forward canopy tip and the
face. (Tr. 98, 437; Deposition Tr. pp. 19Ä20.) It is not a
critical area of a support (Tr. 440).

 7. After McClure observed that some of the forepole pads

were not touching the roof, Mick Lloyd, a representative of the
manufacturer, who was present, told him that the forepoles should
be in contact with the roof. I adopted this testimony as it was
corroborated by Robert G. Nelson, a supervising Coal Mine Safety
Health Inspector for MSHA, who testified for Petitioner. Also I
note that in a deposition taken on February 26, 1987, Charles S.
Battistoni, a MSHA Mine Health Safety Specialist on roof control,
in essence stated, that on February 5, 1986, at a meeting with
Respondent's staff, Lloyd agreed that the canopy tips should be

Page 5

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against the roof once the miner has cleared the shield.
(Deposition Tr. 20Ä21.) It is significant that this is reflected
in notes taken by Battistoni on the day of the meeting
(Deposition 9Ä12, 21).

 8. At the time of Inspector McClure's inspection, a void or

caved area existed above three to four shields in the headgate
entry where the operator had previously used cribbing and
additional roof bolts to provide roof support over these shields.
According to McClure this indicated to him that there was a "bad
roof" at the headpole entry and "approximately" into the coal
face (Tr. 104). The following day there were breaks and cracks
observed over the shields in the immediate face area. (Tr. 506.)

 9. Four of the 13 forepoles were not in contact with the

mine roof due to a cavity in the roof above the pad where the
roof had fractured and had fallen.

 10. The 13 forepole pads not in contact with the roof were

within 4 feet of the face. As a consequence of the cavity over
two of the shields whose pads did not touch the roof, the area of
the roof that was unsupported was approximately 8 feet by 3 feet.
The remaining nine forepole pads were not in contact with the
mine roof due to the fact that the continuous miner operator had
cut too high into the mine roof.

 11. The continuous miner was cutting too deeply into the

roof since January 7, 1986, the date of the installation of the
miner, 3 weeks prior to the issuance of order number 2696214.
This problem was due to poor mining practices and Respondent was
aware of this problem. Failure to correct the gap created by the
miner at the end of a pass led to a bigger gap during the next
pass by the miner.

 12. Of the 13 forepole pads not in contact with the roof,

four were adjacent.

 13. Eight to 10 feet of mine roof extending outby the face

was unsupported due to the lack of contact between the 13
forepole pads and the mine roof.

 14. During a shift, five or six workers may travel

underneath the forepole extensions to fulfill their work
assignments. This finding is based upon the uncontradicted
testimony of Roger Jordan, who works as a beltman for Respondent,
and who serves as the Union's Safety Committee Man. He testified
that every time he was at the face, at the shortwall section, he
saw miners walking under the forepole pads.

 15. In this section of the mine, pot outs occur on a daily

basis.

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16. Five or 6 of the 13 forepole pads not in contact with the
roof, were approximately 2 inches below the roof. Contact with
the roof could have been made by placing logging in the gap. This
can be done from under the adjacent support.

 17. There was approximately a 6 inch gap between the roof

and 3 or 4 of the forepole pads. Contact with the roof could have
been made by placing one crib block between the gap and the pad.

 18. There was approximately a 14 inch gap between the roof

and 3 or 4 of the forepole pads. This gap could have been bridged
by constructing cribbing. A worker constructing such cribbing
would be exposed to unsupported roof.

  19. Respondent's approved roof control plan does not

explicitly provide that the forepole pads be in contact with the
roof.

 20. Prior to the issuance of the subject order, Respondent

did not have any knowledge that a failure to maintain roof
contact with the forepole pad, at a point no greater than 4 feet
from the face, constituted a violation of the roof control plan.

                         Regulatory Provision

    30 C.F.R.   75.200 provides as follows:

         Each Operator shall undertake to carry out on a
         continuing 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, travel ways, and working places
         shall 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 on or before May 29, 1970. The plan
         shall show the type of support and spacing approved by
         the Secretary. Such plan shall be reviewed
         periodically, at least every 6 months by the Secretary,
         taking into consideration any falls of roof or ribs or
         inadequacy of support of roof or ribs. No person shall
         proceed beyond the last permanent support unless
         adequate temporary support is provided or unless such
         temporary support is not required under the approved
         roof control plan and the absence of such support will
         not pose a hazard to the miners. A copy of the plan
         shall be furnished to the Secretary or his authorized
         representative and shall be available to the miners and
         their representatives.

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Approved Roof Control Plan

    Drawing No. 16(b) states as follows:


         3. The space in between the shield canopy extensions
         and the coal face shall not exceed 4 feet. Where this
         spacing is exceeded, roof supports shall be installed
         not to exceed 4 foot spacing before any work or travel
         is permitted in this unsupported area, except for the
         purpose of installing supports.

                                Issues

    1. Whether the Respondent violated the approved roof control

plan.

  2. Whether the approved roof control plan provided that the

forepole pads of the GulickÄDobson shield be in contact with the
roof.

 3. If the Respondent did not violate the roof control plan,

whether it violated 30 C.F.R. 75.200.

 4. If a violation of a regulatory provision or the approved

roof control plan occurred, was it of such a nature as could have
significantly and substantially contributed to the cause and
affect of a safety hazard.

 5. If a violation of a regulatory provision or the approved

roof control plan occurred, whether such violation was caused by
Respondent's unwarrantable failure.

                  Discussion and Conclusions of Law

 Based upon the Parties' stipulations, I conclude that the

Helen Mining Company is subject to the jurisdiction of the
Federal Coal Mine Safety and Health Act of 1977, and that I have
jurisdiction over this proceeding.

                                  I

 On January 28, 1986, when Federal Mine Inspector William

McClure inspected the shortwall section of Respondent's Homer
City Mine, 13 of 53 forepole pad extensions of the GulickÄDobson
shields, which were positioned within 4 feet of the face, were
not in contact with the roof. McClure issued a 104(d)(2) order
predicated upon the language of paragraph 3 of Drawing Number
16(b) of the approved roof control plan. However, a plain reading

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~1101
of paragraph 3, supra, reveals that it does not specifically
require the forepole pads to be in contact with the roof at a
point no more than 4 feet from the face. Furthermore, the second
sentence of paragraph 3, supra, requires roof supports before any
travel is permitted in the area "where this spacing is exceeded."
The spacing that is referred to, clearly relates back to the
first sentence of paragraph 3, which sets forth a maximum of 4
feet between the shield's canopy extensions, (the forepole pads)
and the coal face. Inasmuch as all the forepole extension pads in
question were not more than 4 feet from the face, it would appear
that the installation of roof supports, pursuant to the second
sentence of paragraph 3, supra, is not required.

  Petitioner argues, in essence, that contact with the roof is

the "requisite element of roof support." Although the record, in
general, appears to support this proposition, it must be
concluded, due to the language of paragraph 3, supra, that the
roof control plan did not specifically require the forepole pads
to be in contract with the roof no more than 4 feet from the
face.

 Furthermore, Petitioner has failed to establish that it was

the clear intent of the parties, for the approved roof control
plan to require that the forepole pads be in contact with the
roof. On the other hand, in this connection, it is significant
that Lynn Harding, who had served as Respondent's assistant
safety director and safety director since 1976, has indicated, in
essence, that the approved roof control plan for the shortwall
operation using shields similar to those involved in the instant
case, has been in effect for over 10 years and that MSHA never
issued a citation or a safe-guard or an order pertaining to gaps
between the forepole pads and the roof. This would tend to have
some probative value with regard to the intent of MSHA when the
language contained in paragraph 3, supra, was drafted. Joseph
Dunn, Respondent's general mine foreman, indicated that he wrote
the shortwall roof control plan 10 years ago, and that it was not
his intent, in preparing the plan, that the forepole had to be in
contact with the roof.

 Inasmuch as a roof control plan, once approved, must be

followed in the same fashion as a mandatory regulatory standard,
it is of critical importance that the plan be unambiguous as to
the requirements imposed upon the mine operator. I thus find that
inasmuch as paragraph 3, supra, does not specifically mandate
roof supports where the forepole pad extension is not in contact
with the roof, the order issued herein cannot be predicated upon
a violation of the approved roof control plan.

                               II

 At the hearing, Counsel were asked to brief the issue as to

whether, assuming a finding that the roof control plan was not
violated, there still could be found a violation of a mandatory

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regulatory standard. The Respondent, in essence, argues that
because the inspector relied on the requirements of the roof
control plan, this case must be decided upon a consideration of
the requirements of that plan. In essence, Respondent argues that
if it be found that it has not violated its roof control plan,
then there should not be any consideration of whether a violation
of the regulatory standard, section 75.200, supra, has occurred.
In support of its position, Respondent relies upon the
Commission's decision of Secretary v. U.S. Steel Mining Company,
7 FMSHRC 1125 (August 1985). In its decision, the Commission, in
7 FMSHRC, supra, at 1133, vacated the conclusion of the Judge,
who originally heard the case, that section 75.200, supra, was
violated even though the roof control plan was not. The
Commission's action in this regard was based upon its remand to
the Judge to make further specific findings with regard to the
requirements of the roof control plan in question. As such, the
Commission did not find, as a matter of law, that once it has
been determined that a roof control plan has not been violated,
that an inquiry may not be made as to whether section 75.200,
supra, was violated. The Commission's usual practice, upon
annunciating a rule of law, is to present a thorough discussion
of the legal issues involved along with citations to pertinent
authorities. In contrast, in U.S. Steel Mining Co., supra, the
Commission limited its decision to a discussion of the need to
ascertain the requirements of the roof control plan in question.
It did not present any discussion as to whether, as a matter of
law, a violation of section 75.200, supra, can occur absent a
violation of a specific roof control plan.

 In contrast, in cases before the Interior Board of Mine

Operations Appeals, the Board had held that it is not necessary
to provide a violation of a roof control plan to sustain the
violation where the roof is not adequately supported. (See North
American Coal Corp., IBMA Docket No. 73Ä42, 3 IBMA 93 (April 17,
1979); Ziegler Coal Co., Docket No. 73Ä29, 2 IBMA 216 (September
18, 1973).) It is significant to note that in Rushton Mining
Company, IBMA Docket No. 77Ä19, 8 IBMA 14 (June 23, 1977), the
Board held that the roof control plan is the minimum and it does
not absolve the operator of the responsibility for additional
supports. These cases have been followed by Commission Judges in
cases cited by the Petitioner (See, Secretary v. CF & I Steel
Corporation, 3 FMSHRC 1870 (July 1981); Secretary v. Leslie Coal
Mining Company, 3 FMSHRC 1648 (June 1981).

 Furthermore, the Federal Mine Safety and Health Act of 1977,

supra, is a manifestation of the Congressional concern to enact
legislation that would have the effect of protecting miners from
the hazards of roof falls (see Secretary of Labor v.
Consolidation Coal Company, 6 FMSHRC 34, 37 n. 4 (January 1984)).
Thus to preclude an inquiry as to whether the statuary standard,
section 75.200, supra, has been violated strictly on the basis
that the Inspector's order was predicated upon a violation of the
roof

Page 10

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control plan alone, would appear thwart Congressional intent to
have miners protected from the hazards of roof falls.
Accordingly, even though the Respondent herein did not violate
the roof control plan, an inquiry must be had as to whether the
regulatory provision, section 75.200, supra, has been violated.

 As pertinent, section 75.200, supra, provides that "

the roof of all working places shall be supported
or otherwise controlled adequately to protect persons from falls
of the roof or ribs." In Secretary v. Canon Coal Company, 9
FMSHRC 667 (April 1987), the Commission set forth the test to be
used in determining whether section 75.200, supra, has been
violated. The Commission, Secretary of Labor v. Canon Coal
Company, supra, at 668 stated as follows:

      Questions of liability for alleged violations of this
      broad aspect of this standard are to be resolved by
      reference to whether a reasonably prudent person,
      familiar with the mining industry and the protective
      purpose of the standard, would have recognized the
      hazardous condition that the standard seeks to prevent.
      c.f. OzarkÄMahoning Co., 8 FMSHRC 190, 191Ä92 (February
      1986); Great Western Electric Co., 5 FMSHRC 840, 841Ä42
      (May 1983); U.S. Steel Corp., 5 FMSHRC 35 (January
      1983); Alabama ByÄProducts Corp., 4 FMSHRC 2128, 2129
      (December 1982). Specifically, the adequacy of
      particular roof support or other control must be
      measured against the test of whether the support or
      control is what a reasonably prudent person, familiar
      with the mining industry and protective purpose of the
      standard, would have provided in order to meet the
      protection intended by the standard. We emphasize that
      the reasonably prudent person test contemplates an
      objectiveÄnot subjectiveÄanalysis of all the
      surrounding circumstances, factors, and considerations
      bearing on the inquiry in issue. See, e.g., Great
      Western, supra, 5 FMSHRC at 842Ä43; U.S. Steel, supra,
      5 FMSHRC at 5Ä6.

  Respondent's position, in essence, is that the manufacturer

of the GulickÄDobson shield never advised it that the forepole
pad has to be in contact with the roof, that MSHA had never cited
it in the past for not having forepole pads in contact with the
roof, and that MSHA had never required it in the past to have the
pads in contact with the roof. Respondent also relies upon
testimony from Victor Tagliati; its shortwall coordinator, as
well as from Dunn and Harding to the effect that the forepole pad
does not have any support function and just serves as overhead
protection from falling material. Also relied upon is Dunn's
testimony that the forepole pads provide equivalent support
whether they are in contact with the roof or 14 inches below the
roof.

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~1104
I do not find Respondent's arguments to be persuasive. Dunn and
Tagliati testified, in essence, that from July 1985, when the
GulickÄDobson shields were installed until January 28, 1986, when
the citation was issued, representatives from the manufacturer of
the shields were at the mine on a daily basis. They each
testified that they were never told by the manufacturer's
representatives that it was not proper not to have the forepole
pads in contact with the roof. However, I accepted the testimony
of McClure, as corroborated by Nelson, that after he observed, on
January 28, 1986, that some of the forepole pads were not
touching the roof, the manufacturer's representative, Mick Lloyd
told him the forepole pads should be in contact with the roof. I
therefore, conclude that in fact Lloyd made this statement to
McClure. It thus might be inferred that since Lloyd told McClure
that the forepole pads should be in contact with the roof, it is
likely that Lloyd made the same statement on other occasions to
Respondent's employees.

 Tagliati, Dunn, and Harding, all testified, in essence, that

the forepole pad does not have any support function and its
purpose is for overhead protection from rocks. While the record
is clear that in creating a pressure arch the main support comes
from the canopy portion of the shield, the forepole pads are,
nonetheless, designed to support 13.9 tons. Dunn testified that
the forepole pad does not have to come in contact with the roof
and that it provides equivalent support if it is in contact with
the roof or if it is 14 inches below. On the other hand, George
Hazuzza, who presently reviews roof control plans on behalf of
MSHA, testified, in essence, that although the forepole pad can
support, in a static situation, approximately 13.9 tons, it is
uncertain how much weight the forepole pad can support if it is
not in contact with the roof, as it would depend upon the size
and weight of material falling from the roof and the amount of
distance it would fall from the roof to the forepole pad. I find
this testimony of Hazuzza to be well reasoned, and I adopt it.
Hence, it is clear that a reasonably prudent person familiar with
the mining industry would have recognized the hazard created in
not having the forepole pad placed up against the roof. This is
especially true in the case of the four adjacent shields, whose
forepole pads were not in contact with the roof, leaving a
unsupported area of approximately 160 square feet.

 I have taken in to account the testimony of Tagliati that a

14 inch gap, which existed between 3 or 4 of the forepole pads
and the roof, could be bridged by constructing cribbing.
Respondent argues that the individual constructing such cribbing
would be exposed to an unsupported roof. Inspector McClure was of
the opinion that a unsupported roof is a greater hazard than the
exposure to an individual to an unsupported roof while
constructing cribbing to support the roof. I adopt the opinion of
McClure. I find

Page 12

~1105
that a substantial hazard to exist as the gap between the roof
and the forepole pad, can lead to unsupported roof being exposed
for the duration of a pass by the miner which can take up to 2
hours.

 Based on all the above, I conclude that Respondent violated

section 75.200, supra.

                              III

 Petitioner has, in essence, alleged that the nature of

Respondent's violations of section 75.200, supra, fall within the
purview of section 104(d)(1) of the Act, as they "could
significantly and substantially contribute to the cause and
effect of a coal mine safety or health hazard"
(section 104(d), supra) In Mathies Coal Co., 6 FMSHRC 1 (January
1984), the Commission set forth the elements of a "significant
and substantial" violation as follows:

      In order to establish that a violation of a mandatory
      safety standard is significant and substantial under
      National Gypsum the Secretary of Labor must prove: (1)
      the underlying violation of a mandatory safety
      standard; (2) a discrete safety hazardÄthat is, a
      measure of danger to safetyÄcontributed 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, supra, at
      3Ä4.)

 As discussed above, infra, I have already found that a

mandatory safety standard, i.e., 30 C.F.R. 75.200, has been
violated. Accordingly, the first element of Mathies, supra, has
been satisfied.

 The evidence establishes that in the Respondent's shortwall

section the GulickÄDobson shields create a pressure arch which
causes pressure on the face. According to the uncontradicted
testimony of McClure, at the date of inspection, there was a
caved-in area above three or four shields in the headgate entry
which indicated to him that there was "bad roof" at that point
and also "approximately" into the face (Tr. 104). Dunn and
Tagliati testified that the roof condition, on the section in
question on the date the citation was issued, was "good."
However, it is noted that Tagliati indicated in the area in which
the citation occurred there are pot outs on a daily basis and
there could have been pot outs on the day of the order. Indeed,
it was the uncontradicted testimony of Shirley Rine, a MSHA Coal
Mine Inspector assigned to roof control duties, that the day
after the citation was issued, he observed "cracks and breaks
over top (sic.) shield right into the immediate face area." (Tr.
506.) Further, it is significant to note that four adjacent

Page 13

~1106
shields had forepole pads not in contact with the roof, thus
leaving an area of approximately 160 feet unsupported. Moreover,
this area could have remained unsupported for the duration of a
pass which takes approximately 2 hours. In addition, I noted the
fact that 3 or 4 forepole pads were 14 inches below the roof,
thus creating uncertainty as to the weight the pad would support
if hit by falling rock. Taking all these factors into account, I
conclude that a discrete safety hazard was created with a
reasonable likelihood that this hazard will result in injury. It
further is clear, as established by all witnesses to whom the
question was posed, that rock falling from an unsupported roof
could seriously injure or kill a person below. In this
connection, I conclude, based upon the credible testimony of
Jordan and McClure, that as many as five or six workers during
the shift may travel underneath the forepole extensions to
fulfill their work assignments (see finding 14). I therefore
conclude that the violation 30 C.F.R. 75.200 was such a nature
as could significantly and substantially contribute to the cause
and affect of a coal mine safety hazard.

                               IV

 It is the Secretary's position that the violation herein

constitutes a "unwarrantable failure" to comply to the provisions
of 30 C.F.R 75.200. The Commission, in United States Steel
Corporation v. Secretary of Labor, 6 FMSHRC 1423 (June 1984),
held that:

      an unwarrantable failure to comply may be
      proved by a showing that the violative condition or
      practice was not corrected or remedied prior to the
      issuance of a citation order because of indifference,
      willful intent, or a serious lack of reasonable care.
      (United States Steel Corporation v. Secretary of Labor,
      6 FMSHRC, supra, at 1437).

 Petitioner argues, in essence, that the gap between the

forepole pad and the roof was caused by the Respondent's poor
mining practices in not handling the remote control continuous
miner properly. Petitioner also argues that in preshift
inspections it should have been observed that 13 forepole pads
were not in contact with the roof. Although the violative
condition was caused by Respondent's poor mining practices and
was readily observable at the date the citation was issued, I
find that the Petitioner has not established that the reason for
the Respondent not remedying the violative condition was due
either indifference, willful intent, or serious lack of
reasonable care. The critical issue is not what caused the
violative condition, but rather the operator's motive in not
correcting the violative condition. It is noted, in this
connection, that the roof control plan did not

Page 14

~1107
explicitly require the forepole pads to be in contact with the
roof. Further, according to the uncontradicted testimony of Dunn,
Tagliati, and Harding, for 10 years prior to the date the
citation was issued, MSHA had never written a citation for
forepole pads not being in contact with the roof, in spite of,
according to the uncontradicted testimony of Tagliati, the
inspectors being present when such conditions have existed. Based
upon these factors it must be concluded that operator's failure
to have forepole pads in contact with the roof was neither as a
result indifference or willful intent. Further, although I have
held infra, that a reasonably prudent person familiar with the
mining industry would have recognized the hazardous condition of
an unsupported roof caused by the forepole pads not being in
contact with the roof, I am not deciding that this established a
serious lack of reasonable care. (c.f. U.S. Steel Corporation,
supra.) The operator's lack of reasonable care did not reach this
high degree as it was based upon its reasonable interpretation of
its roof plan, the long history of not being cited for similar
conditions, and its reasonable belief that a serious hazard was
entailed in placing supports in the gap between the pads and the
roof. Accordingly it is concluded that violation herein of 30
C.F.R 75.200 does not constitute an unwarrantable failure to
comply with the Act.

                               V

 I have considered all the criteria in section 110(i) of the

Act. The Parties has stipulated as the size of the operator's
business which I interpret as being large. I find that there is
no evidence that the civil penalty proposed by the Secretary will
have any detrimental affect on the operator's ability to continue
in business. I also find that the operator did demonstrate good
faith in abating the violation in a timely fashion. I further
find that the operator, in violating 30 C.F.R 75.200, was
negligent to a moderate degree, but that its action did not
indicate a serious lack of reasonable care. I further find that
the gravity of the violation was serious with regard to the 3 or
4 of forepole pads that were approximately 14 inches lower than
the roof. I also find that the gravity of violation was serious
with regard to the four adjacent forepole pads not in contact
with the roof. However, I find that the gravity was only slight
with regard to the 5 or 6 of the 13 forepole pads that were only
approximately 2 inches below the roof. Based upon all these
factors I find that a penalty of $600 is appropriate.

 Concerning order number 2696200, issued on February 3, 1986,

Petitioner has filed a motion to approve a settlement agreement
and to dismiss the case. A reduction in penalty from $700 to $150
is proposed. I have considered the representations and

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documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in Section 110(i) of the Act. I further conclude that the
modifications of the order to a section 104(a) citation is
proper.

                             ORDER

 It is ORDERED that the operator pay the sum of $750, within

30 days of this decision, as a civil penalty for the violations
found herein.

 It is further ORDERED that order number 26926220 be modified

to a Section 104(a) Citation. As modified the citation is
affirmed. The contest is thus GRANTED in PART and DENIED in PART.

                               Avram Weisberger
                               Administrative Law Judge