Lion Mining Company

Plain-English summary

Lion Mining Company was cited after it mined a notch from a coal pillar without first installing roadway posts required by its roof control plan. On remand from the Commission, Judge T. Todd Hodgdon found that the violation was significant and substantial and resulted from unwarrantable failure. The judge considered the mine's history of roof falls and violations, the unsupported roof condition, and the conduct of mine supervisors. Citation No. 3711869 was affirmed as written.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.220(a)(1), 30 U.S.C. § 814(d)(1)
• Outcome: Citation No. 3711869 was affirmed as written after remand.
• Key point: A mine's history of roof falls and violations, combined with management knowledge and delayed corrective action, supported significant-and-substantial and unwarrantable-failure findings.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES
                  2 SKYLINE, 10th FLOOR
                   5203 LEESBURG PIKE
              FALLS CHURCH, VIRGINIA  22041


                      July 26, 1996

LION MINING COMPANY, : CONTEST PROCEEDING
Contestant :
: Docket No. PENN 94-71-R
v. : Citation No. 3711869;11/17/93
:
SECRETARY OF LABOR, : Grove No. 1 Mine
SAFETY AND HEALTH : Mine ID 36-02398
ADMINISTRATION (MSHA), :
Respondent :

                    DECISION ON REMAND

Before: Judge Hodgdon

 On May 23, 1996, the Commission vacated my determinations[1]

that the violation in this case was not"significant and
substantial" and did not result from the operator's
"unwarrantable failure" to comply with the Regulations, and
remanded the case for further analysis consistent with its
decision. Lion Mining Company, 18 FMSHRC 695 (May 1996).The parties
have filed briefs concerning the remand. For the reasons set forth
below, I conclude that the violation was S&S and the result
of Lion Mining's unwarrantable failure.

 The facts,  which  are  set  out  more fully in the previous

decisions in this matter, can be briefly summarized. Lion
Mining was cited for violating its roof control plan by failing to
install roadway posts prior to mining a notch out of pillar block

37. Note 7 to Drawing A of the plan provided that: "Roadway posts
    shall be installed on either side to limit roadway to 16' in pillar
    splits. Roadway posts installed in roof boltedentries, rooms,
    and crosscuts shall be installed to limit roadway width to 18 feet."

               Significant and Substantial
    

    In this case, it is undisputed that the first two Mathies
    S&S criteria[2] are present, i.e. that there was an underlying
    violation of a mandatory safety standard and that the violation
    contributed to a discrete safety hazard - a possible roof fall.
    In connection with the third criterion, a reasonable likelihood that
    the hazard contributed to would result in an injury, the Commission
    stated that "the judge erred in placing undue weight on the
    operator's compliance with applicable roof bolting, breaker,
    and radius post requirements" and "in failing to consider the history
    of roof falls in the section." Id. at 698-99.

    The inspector testified as follows concerning his basis for
    concluding that this third criterion was met:

Q. Okay. Now, in your opinion, did the company's
failure to erect posts, roadway posts at the crosscut,
significantly or [sic] substantially contribute to the
hazard of a roof fall?

A. Yes, it would.

Q. Did you observe any particular conditions in this
area on November 17th that would lead you to the
conclusion that the company's failure to erect posts
would significantly contribute to the danger of a roof
fall?

A. Yes, it would.

Q. What particular conditions did you observe?

A. The rib was rolling off on number 38 and 39, which
indicates there's pressure above the strata coming off
the pillar line.

Q. Okay. Now, was this in the same area where Mr.
Jones and Mr. Marines were standing?

A. Yes, it is.

Q. And is this the same area where the roadway posts
were to be erected?

A. Yes, it is.

. . . .

Q. Did it indicate to you anything -- does the history
of roof falls that you've read into the record and the
roof fall that you observed on the day before, did that
indicate to you anything about the likelihood of a roof
fall on November 17th?

A. Yes, it did.

Q. What is that?

A. Well, with these conditions it's reasonably likely
that a roof fall would occur and which could be a
serious injury to someone.

(Tr. 38-39, 51-52.)

 The  Respondent  argues  in  its  brief that "given the roof

support measures in place, the short period of time the condition
existed and the roof support provided by the remainder of the
pillar block, the absence of the roadway posts, even though they
are a roof support device, did not create a hazard that was
reasonably likely to result in a serious injury." (Resp. Br. at
6-7.) This is essentially the same argument that the Commission
has already rejected. Id.

Additionally, the Respondent argues that the mine's history
of roof falls should be accorded little weight because in
the particular area where the notch was made the roof
appeared to be good. The company further argues that the
inspector based part of his finding that the violation was
S&S on his belief that half of block 37 had already been
extracted, when in fact it had not.

In another mine, the Respondent's arguments might be
persuasive. However, this particular mine had had five roof
falls in the previous two years, one of which had occurred
the day before in an area two pillar blocks away from block

37. In addition, the rib was already rolling between pillar
    blocks 38 and 39, the precise area where the roadway posts
    should have been installed, prior to the notch being cut.
    Finally, it has long been recognized that mine roofs "are
    inherently dangerous and even good roof can fall without
    warning." Consolidation Coal Co., 6 FMSHRC 34, 37 (January
    1984).

Taking all of this into consideration, I conclude that the
failure to install roadway posts prior to cutting the notch
made a roof fall which would result in an injury reasonably
likely to happen.[3] It follows that such an injury would
be reasonably serious, thus meeting the fourth Mathies
criterion.

The Commission has emphasized that in determining whether a
violation is S&S the particular facts surrounding the
violation and continued normal mining operations must be
taken into consideration. 18 FMSHRC at 699; Texasgulf,
Inc., 10 FMSHRC 498, 500-01 (April 1988). Accordingly,
taking into consideration the particular facts in this case
and continued normal mining operations, I conclude that the
violation in this case was "significant and substantial."

Unwarrantable Failure

With respect to whether the violation resulted from Lion
Mining's "unwarrantable failure," the Commission found that
Lion's "history of roof violations and roof falls should
have placed [it] on notice that greater efforts were
necessary for compliance." 18 FMSHRC at 700 (citations
omitted). In addition, it directed the judge to reconsider
the testimony of Superintendent Jones and Foreman Marines
and to consider what effect the inspector's presence may
have had on the installation of roadway posts. Id. at 701.

The inspector testified that he found this violation to
result from an unwarrantable failure because of "the
previous citations and orders that were issued on this four
and a half section for pillaring on the roof control plan
and the number of roof falls that have occurred." (Tr. 57.)
He testified as follows concerning his presence while the
violation was being committed:

Q. And after you spoke with Mr. Bittner can you
describe what happened?

A. As I talked to him I looked over there and I seen
the two management people [Jones and Marines] standing
there looking towards the miner watching it load the
shuttle car. And at that time Russ Lambert, the mine
foreman, came up along number 44 block to where Mike
and I were standing and Mike went to the side of Russ
Lambert and whispered in his ear. And Russ --

Q. Did you hear anything?

A. I couldn't hear what he was saying. And Russ
Lambert looked up towards this area in the crosscut,
between 38 and 39, and he started to come towards me.
And I asked him, I said, isn't it about time you get
your roadway posts set? And by that time he kept on
going, walking. And then he went up there and started
measuring the height from the roof to the floor.

. . . .

Q. Okay. What happened after that?

A. After that then Mike Bittner and I walked over to
this crosscut between 38 and 39. And as I observed,
the shuttle car got loaded and Art Jones there and Ted
Marines, and I was talking to Mike Bittner, the safety
director, and I said, this isn't going to look too good
on the violation Mike. I said, Art Jones, the
superintendent and Ted Marine's names on these
violations -- the violation. And Mike just laughed and
he, you know, gave a smile, you know, and he didn't
make no comment.

(Tr. 35-36.)

 Mr. Jones testified that he had 21 years experience  in  the

mining industry and had been superintendent at the Grove Mine for
eight months. He stated that while he was generally familiar
with the roof control plan, he was not aware of all of its
specifics and he was not aware of the requirements of Note 7.
With regard to the mining of the notch, Mr. Jones testified as
follows:

Q. Okay. Now, neither you nor Mr. Marines at anytime
instructed the operator of the continuous miner to
cease extracting coal from pillar 37 during the time in
question, is that correct?

A. I did not. I didn't know that there was anything wrong.

Q. Mr. Marines did not either, did he?

A. Mr. Marines ordered posts and I told him to bring
back posts.

Q. My question is, did he ever instruct a miner to
stop extracting coal from the 37 pillar before the
posts were erected?

A. No.

(Tr. 128.) Finally, he testified that usually it would make
sense to erect roadway posts before the extraction of coal
begins.

Mr. Marines testified that he was at the face while the
miner operator was cleaning up "gob," that he left the area
for about fifteen minutes to take care of another matter and
then he returned to the face. He described his return as
follows:

Q. And what were they doing when you got to the face?

A. He was finishing up a buggy and I told the shuttle
car operator to bring timber up.

Q. Why did you tell the shuttle car operator to bring
timber up?

A. Because he had just started to notch out the 37
stump.

Q. Had any time elapsed between the time you became
aware he was mining the stump and the time you ordered
the timber?

A. No.

Q. Who did you tell or who did you ask to bring the
timber into the area?

A. Tim Lambert.

Q. And what is his particular position?

A. Shuttle car operator.

Q. Did anyone indicate to you that you needed timber
in the area?

A. No.

Q. Did Mr. Lambert or Mr. Bittner tell you that you
needed timber in the area?

A. No.

Q. Did the inspector tell you that you needed timber
in the area?

A. No.

. . . .

Q. Now, he was taking coal from the pillar when you
arrived in this area?

A. Uh-uh (yes).

Q. He was extracting coal from the pillar; was he not?

A. Right.

Q. Did you tell him to cease extracting coal from the
pillar at that time?

A. Not till he finished that shuttle car.

(Tr. 133-34, 137.)

I find Mr. Jones' testimony irrelevant to the issue of
unwarrantable failure. At the time that the violation was
being committed, he did not know what the roof control plan
required. Consequently, whether or not the plan explicitly
required the installation of roadway posts prior to
extracting any coal had no bearing on his actions. Whether
his failure to know what the plan required, in view of his
position at the mine, amounted to negligence sufficient to
support an unwarrantable failure finding is a question that
need not be answered in this case because there were two
other management officials present who did know the
requirements of the roof control plan.

Clearly, Mr. Russ Lambert, mine foreman, and Mr. Marines,
section foreman, were the management officials making
decisions on the scene. Nowhere in his testimony did Mr.
Marines claim that the roof control plan did not require
installation of roadway posts prior to the mining of the
notch. Nor, apparently, did Mr. Lambert, who did not
testify, raise such an objection when confronted by
Inspector Fetsko.

The logical conclusion to be drawn from this, is that they
understood the plan to require that the posts be erected
before any mining was performed. This is consistent with
the admission of the violation by the Respondent throughout
these proceedings.[4] Therefore, I conclude that the roof
control plan, as understood by company management officials,
required the installation of roadway posts before the notch
was mined.

With regard to whether the inspector's presence served as an
impetus for ordering the posts, the entire testimony
concerning the inspector's presence is set out above.
Neither Mr. Lambert nor Mr. Bittner testified. Jones and
Marines were not asked on direct or cross whether they knew
that the inspector was present and, if so, whether it had
any effect on their actions. Only the inspector testified
concerning the actions of Lambert. The only mention made of
Lambert by any of the Respondent's witnesses was Marines'
denial that Lambert told him to get the posts.[5] Marines
also denied that the inspector told him to get the posts.

On the other hand, it is hard to imagine that the presence
of the inspector would not have had an effect. One would
hope that the normal reaction of someone when in the
presence of an enforcement official would be to insure that
the rules are being followed. Consequently, based on the
testimony of the inspector concerning his presence during
the violation, the presence of both Jones and Marines, and
the actions of Lambert in taking measurements after the
inspector spoke to him, I infer that Marines' decision to
install the posts was at least partially triggered by the
inspector's presence.

I also find the following testimony of the miner operator
significant on the unwarrantable failure issue:

Q. Were you, in fact, beginning to mine the pillar
block when that notch was taken out?

A. I was finishing loading the gob and was loading the
buggy, yes. I loaded some out of that block.

. . . .

Q. Now, you intended to continue extracting coal from
the pillar 37 at the time in question, is that correct?
Aside from the notch that was actually indicated here
on Joint Exhibit One you intended to continue
extracting coal --

A. Yes.

Q. -- from pillar 37?

A. Uh-huh (yes).

(Tr. 106, 112.)

In sum, then, the miner operator mined a notch out of block
37 with no apparent intent of stopping after the notch was
removed; no one told him to stop mining;[6] Jones, Marines
and Lambert were all present while this occurred; at a
minimum both Marines and Lambert knew what the roof control
plan required, yet no action was taken to install the
roadway posts until after the notch was mined, and the
reason for installing them then was at least partially the
result of the inspector being present. Further, as the
Commission has already held, the company's previous roof
control violations and roof falls should have put it on
notice that greater efforts were necessary for compliance.

Taking all of this into consideration, I find that the
failure to install the roadway posts prior to mining the
notch resulted from "indifference" or a "serious lack of
reasonable care" and, thus amounted to aggravated conduct
constituting more than ordinary negligence. Emery Mining
Corp., 9 FMSHRC 1997, 2001, 2003-04 (December 1987).
Accordingly, I conclude that Lion Mining's commission of
this violation resulted from an unwarrantable failure to
comply with the Regulations.

                          ORDER

Citation No. 3711869 is AFFIRMED as written.

                          T. Todd Hodgdon
                          Administrative Law Judge

Distribution:

Joseph A. Yuhas, Esq., P.O. Box 25, Barnesboro, PA 15704
(Certified Mail)

Richard T. Buchanan, Esq., Office of the Solicitor, U.S.
Department of Labor, 3535 Market St., Room 14480,
Philadelphia, PA 19104 (Certified Mail)

/lt

FOOTNOTES

[1]: Lion Mining Company, 16 FMSHRC 641 (March 1994).

[2]: Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).

[3]: In reaching this conclusion, I have considered the
Respondent's argument that the inspector testified that he
thought that one half of block 37 had already been removed.
However, he also testified that even if the block were whole
he still would have found the violation to be S&S. (Tr.
101.)

[4]: In view of the Respondent's interpretation of its own
requirement, the Secretary's concession in its brief before
the Commission that the plan did not explicitly require the
installation of posts before commencement of pillar
extraction, while correct, is not relevant.

[5]: Two Lamberts worked for the company, the question to
Marines did not specify which Lambert was being referred to.
However, do to the nature of the question and the
inspector's testimony, I am assuming it referred to Russ
Lambert.

[6]: According to his testimony, he only stopped because he
always stopped between shuttle cars, he did not testify that
anyone told him to stop, and Jones testified that neither he
nor Marines told him to stop. Therefore, I conclude that he
was not told to stop.