Secretary of Labor v. Kopper Glo Mining, LLC

Plain-English summary

MSHA cited Kopper Glo Mining after an inspector found rib sloughage and unsupported brows in five working headings at the Double Mountain Mine. Judge Margaret A. Miller held that the mine's roof-control plan clearly treated sloughing as a sign of instability and required fencing, steel supports, bolting, or other specified controls rather than the unsecured timbers the operator used. She affirmed the violation, the significant-and-substantial designation, and high negligence because the obvious condition had been recorded for nine shifts and the required materials and controls were not in place. The Judge removed the unwarrantable-failure designation because the mine had pulled down some loose ribs, installed timbers, had a below-average roof-control citation rate, and reasonably showed some uncertainty about the plan's requirements. She reduced the proposed $35,500 penalty to $20,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220(a)(1)
• Outcome: The violation, S&S designation, and high negligence were affirmed, unwarrantable failure was rejected, and a $20,000 penalty was assessed.
• Key point: Rib sloughage can itself trigger an approved roof-control plan's support requirements even without visible cracking, but interpretive uncertainty and partial abatement may defeat unwarrantable failure.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

November 2, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION, (MSHA),

Petitioner,

v.

KOPPER GLO MINING, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. SE 2014-403

A.C. No. 40-03365-352685

Mine: Double Mountain Mine

DECISION

Appearances:               Jennifer Booth Thomas, United
States Department of Labor, Office of the Solicitor, Nashville, Tennessee, for
Petitioner;

Melanie J. Kilpatrick,
Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington, Kentucky, for
Respondent.

Before:                                    Judge Miller

This case is before me upon a petition
for assessment of a civil penalty filed by the Secretary of Labor in accordance
with section 105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 815(d). This docket involves one citation issued pursuant to section 104(d)(2)
of the Act with a proposed penalty of $35,500.00. The parties presented
testimony and evidence regarding the citation at a hearing held in Knoxville,
Tennessee, on September 1, 2015.

I.  FINDINGS OF FACT
AND CONCLUSIONS OF LAW

Double Mountain Mine is an underground
bituminous coal mine located in Claiborne County, Tennessee. The parties have
stipulated to the jurisdiction of the Federal Mine Safety and Health Act of
1977 and to the jurisdiction of the Commission. The parties also entered a
number of stipulations related to the penalty criteria which are discussed
below. Jt. Stip. ¶¶ 3-4.

Citation No. 8365728 was issued
by Inspector Jim Lundy on May 2, 2013, pursuant to section 104(d)(2) of the Act
for an alleged violation of 30 C.F.R. § 75.220(a)(1), a failure to follow the
roof control plan. The citation alleges that the operator failed to implement
the rib control measures in its approved roof control plan, including either
removing loose ribs or supporting them with fencing and steel posts. The
failure to follow the plan led to unaddressed sloughing and unsupported brows. Lundy
determined that the condition was highly likely to result in a permanently
disabling injury, was S&S, affected two people, and was a result of high
negligence and the mine’s unwarrantable failure to comply with the mandatory
standard. The Secretary proposed a civil penalty in the amount of $35,500.00
for this alleged violation. The

citation was terminated when MSHA determined that the
loose ribs had been scaled and chain link fencing with steel jacks had been
installed around all pillars to within forty feet of the working faces, and rib
bolts had been installed as required by the roof control plan.

Based upon the parties’
stipulations, my review of the entire record, my observation of the demeanor of
the witnesses, and consideration of the post-hearing briefs, I find that the
violation and S&S designation are appropriate and that the negligence is
high, as alleged. However, I do not find the violation to be the result of an
unwarrantable failure to comply.

A.    
 The Violation

Roof, face, and rib falls have historically
been one of the leading causes of injuries and death in underground coal mines.
Safety Standards for Roof, Face and Rib Support, 53 Fed. Reg. 2354, 2354, 2369
(Jan. 27, 1998). To combat these hazards, Congress directed that mine operators
develop and follow roof control plans “suitable to the roof conditions and
mining system of each coal mine.” 30 U.S.C. § 862(a). The Commission has stated
that the intent of the roof control provision is “to afford comprehensive
protection against roof collapse.” Elk Run Coal Co., 27 FMSHRC 899, 904
(Dec. 2005) (quoting UMWA v. Dole, 870 F.2d 662, 669 (D.C. Cir. 1989)).

In promulgating the current
version of the roof control standard, the Secretary explained that roof control
plans are intended to offer flexibility in order to address each mine’s unique
conditions. Safety Standards for Roof, Face and Rib Support, 53 Fed. Reg. 2354,
2369 (Jan. 27, 1998). The rule requires that “[e]ach mine operator shall
develop and follow a roof control plan, approved by the District Manager, that
is suitable to the prevailing geological conditions, and the mining system to
be used at the mine. Additional measures shall be taken to protect persons if
unusual hazards are encountered.” 30 C.F.R. § 75.220(a)(1).

In order for the Secretary to
prove a violation of § 75.220(a)(1), he must establish, first, that the
provision allegedly violated is part of the approved and adopted plan, and,
second, that the condition cited actually did violate the plan provision. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1280 (Dec. 1998); JWR, 9 FMSHRC
at 907. “When a plan provision is ambiguous, the Secretary may establish the
meaning intended by the parties by presenting credible evidence as to the
history and purpose of the provision, or evidence of consistent enforcement.” Harlan,
20 FMSHRC at 1280.

In this case, the parties agree that pages 16
and 16a of the approved roof control plan for this mine are the provisions at
issue. Therefore, the focus must be on whether the conditions observed by the
MSHA inspector constituted a violation of those provisions.  

The provisions of the roof control
plan at issue relate to the support of ribs, specifically ribs that are inby. Sec’y
Ex. 2 at 16, 16a. The provisions on page 16 have been in effect since the plan
was adopted. When the mine received a citation involving rib control in August
2012, it discovered that its interpretation of page 16 was different than
MSHA’s and began the process to amend the plan. The focus of the plan
negotiations was on the provisions regarding control of the brows and ribs near
the face. At hearing, witnesses for the mine explained that their goal during
the negotiations was to clarify what conditions must be present to require extra
rib control measures. Shortly after the negotiations began, there was a roof
fall at the mine that resulted in a fatality, which caused MSHA to examine
other provisions of the plan, as well. As a result of the negotiations, page
16a was added to the plan. It included a clarification of the rib conditions requiring
additional control measures, a definition of the term “brow,” and several new
rib control requirements that would apply in certain situations. Sec’y Ex. 2 at
16a. The original page 16 of the plan was not removed, but it was amended in
some respects by the addition of page 16a.  

The central issue in this case
is what conditions trigger the rib control requirements on pages 16 and 16a. The
Secretary asserts that wire fencing and metal support must be installed when sloughing
occurs and brows as defined in 16a are created. Bolting must be done if the
height of the area is above 6.5 feet. Timbers may be used for support only in
outby areas. The mine asserts that support measures are only required if the
brows are cracked or there is some other indication of instability, and that sloughing
is not a sign of instability.

MSHA’s Inspection

Jim Lundy is a mine inspector who has been
with MSHA since May 2006. He is a health specialist and has worked in the coal
mining industry since 1973, including as an assistant manager of safety. He holds
a number of mine certifications and degrees as well as a nursing license. Lundy
went with a team to Kopper Glo’s Double Mountain mine on May 2, 2013, to
conduct a health inspection. Prior to conducting the inspection, Lundy reviewed
the mine’s roof and ventilation plans as well as the weekly and shift
examination books. The examination books revealed that there had been problems
with sloughing ribs in an area of the mine for nine shifts over the three
previous days, and that action had been taken to pull down some of the problem
ribs. During his underground inspection of the mine, Lundy observed the loose
ribs. A photo produced at hearing shows the roof, the ribs, and the support in
place. Ex 6. An overhanging brow can be seen in the top of the photos. There is
also sloughage—loose material that has come down from the sides—on the ground
between two wooden roof support posts.

Lundy observed rib sloughage and overhanging
brows in the five inby headings he inspected, all of which were within 40 feet
of the face. In three areas, Lundy measured that the height of the brows was more
than six and a half feet from the floor. In most areas, the brows exceeded the
minimum dimensions given in the definition of a brow on page 16a of the roof
control plan. While it is unclear whether Lundy observed cracks on the brows,
he believed that the sloughage and overhanging brows were indicative of
instability and constituted adverse rib conditions triggering additional
support requirements under the roof control plan. No steel posts, plates,
fencing, bolts, or brackets had been installed in any of these areas, nor had
the ribs been pulled down. Instead, wooden timbers had been set between the
brows and the mine floor or bottom rock ledge. Additionally, Lundy observed
that the mine did not have a supply of steel pipes or fencing in the area, as
was required by the roof control plan. See Sec’y Ex. 2 at 2. He thus
issued Order No. 8365728 for a violation of 30 C.F.R. § 75.220(a)(1) for failure
to implement the rib control measures in the mine’s approved roof control plan.

MSHA and Kopper Glo offered
differing interpretations of the rib conditions at the mine, particularly the
sloughage. Inspector Lundy explained that sloughage occurs when pressure from
the overlying rock in a mine increases as coal is removed. Because the coal is
a softer material than the rock, it is compressed outward. Since the coal is
not elastic enough to absorb the pressure, the edges of the rib crumble under
the pressure. The rock left above the sloughing coal is known as a brow. Inspector
Lundy testified that when a rib starts to slough, the area is compromised, because
the brow is left without support. Additionally, sloughing decreases the size of
the coal pillar leaving less to support the roof, which can cause the roof to
sag. These conditions could lead the rib to crack, which would be a sign of
instability. In Lundy’s opinion, though, instability could also exist where
there was sloughing but no visible cracking. A witness for the mine, Patrick
Slone, who assisted the mine in developing its roof control plan, disagreed. He
testified that while sloughing results from excess pressure, it does not
necessarily mean the ribs are unstable. Slone also testified that brows are
sometimes created not from sloughing but rather through intentional mining
activity when more height is needed in the mine. Slone seemed to indicate that
instability was unlikely to occur in the Double Mountain Mine because the coal
seam was only thirty-six inches high, and he testified that the sloughage
observed by Lundy at the mine was not a sign of instability.

The Roof Control Plan

The roof control plan for Double
Mountain Mine creates requirements for rib control for “all areas on the
working section (MMU) where rib conditions warrant.” Ex. 2 at 16. The
supplement on page 16a expands on when the rib control methods are required: it
explains that an “adverse rib/brow … will be pulled down or adequately
supported,” and explains that an adverse rib or brow is one with “visible
cracks or signs of instability.” Ex. 2 at 16a.

When adverse ribs or brows are
present, the mine is given options for how to address them. First, miners may
pull or remove the loose rib. Ex. 2 at 16, 16a. But because sometimes the rib
cannot be pulled down or continues to slough after it is pulled down, the plan
offers alternatives. Page 16 provides that the mine may install steel pipe and
wire fencing. Ex. 2 at 16 ¶¶ 2, 3. In “short” areas, where only a portion of
the pillar is affected by sloughing, the mine is directed to install the pipe
“after the normal roof bolting cycle.” Ex. 2 at 16 ¶ 2. In areas where the
entire pillar is sloughing, the mine is to install the pipe “as soon as
practicable.” Ex. 2 at 16 ¶ 3. The supplement creates additional requirements for
rib support in certain areas. For adverse ribs and brows in the face area, the
mine is to install angle brackets and cable lashing. Ex. 2 at 16a. For outby
areas, the mine is given the option to install timbers. Id. The
supplement also provides a definition of a brow: a brow is “an area that is
created from sloughing of coal ribs. This area is 12 inches wide, 24 inches
long and 4 inches in height and thickness (minimum).” Id.  It goes on to
require that brows “shall be supported.” Id. Finally, the supplement
requires that if there are adverse ribs or brows “above 6.5 feet in height,
bolting will be done to secure the affected ribs/brows.” Id. The
requirement that sloughing pillars must have additional support was not removed
from page 16, and remained in effect even with the addition of page 16a. If the
brow is cracked or shows other signs of instability, then further support,
beyond the pipe required for sloughage, must be installed. The only additional
support observed by Lundy was timbers, most often used for roof support and not
approved for additional rib and brow support inby.

In his inspection, Lundy
observed rib sloughage and overhanging brows in five inby headings. The
Secretary argues that these were “adverse ribs/brows” that required rib control
measures under the plan, including bolting in areas over 6.5 feet high and angle
brackets and steel posts and fencing in all of the areas. The mine had not
implemented any of those measures, but rather was using timbers as roof
support. Kopper Glo argues that because there were no visible cracks in the
ribs and brows, there were no “adverse ribs/brows,” and that therefore no rib
control methods were required under the plan. The question, then, is whether
sloughage and overhanging brows with no visible cracking must be supported as
stated on page 16, and whether they constitute “adverse ribs/brows” requiring
the support listed on page 16a of the plan. 

The Commission has explained
that plan provisions are enforceable as mandatory standards. Martin Cty.
Coal Corp., 28 FMSHRC 247, 254 (Mar. 2011) (ALJ); Energy W. Mining Co.,
17 FMSHRC 1313, 1317 (Aug. 1995); Jim Walter Res., Inc., 9 FMSHRC 903,
907 (May 1987) (“JWR”); see also UMWA v. Dole, 870 F.2d
662, 671 (D.C. Cir. 1989). When interpreting a plan provision, a judge should thus
apply the principles governing the interpretation of regulatory standards. Martin
Cty. Coal, 28 FMSHRC at 255 (citing Energy West, 17 FMSHRC at 1317).
Accordingly, when the language of the plan provision is clear, the provision
should be enforced as written “unless the regulator clearly intended the words
to have a different meaning or unless such a meaning would lead to absurd
results.” Id. As a part of the inquiry, “in ascertaining the plain
meaning of the statute, the court must look at the particular statutory
language at issue, as well as the language and design of the statute as a
whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)
(citations omitted). Traditional tools of construction, including examination
of a provision’s text and legislative history, may be employed to determine
whether the drafters “had an intention on the precise question at issue.” Coal
Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989) (citations
omitted).

Here, I find that the plan was clear, and
that sloughing of the ribs required fencing under page 16 of the plan. I also
hold that sloughing of the ribs constituted an “adverse” condition requiring additional
support under page 16a. “In the absence of a statutory or regulatory definition
of a term, the Commission applies the ordinary meaning of that term.” Twentymile
Coal Co., 30 FMSHRC 736, 750 (Aug. 2008). The plan indicates that ribs and
brows are “adverse” when there are “visible cracks or signs of instability.” Ex.
2 at 16a. “Instability” in ordinary usage is “the state of being likely to
change.” Merriam-Webster Dictionary (2015). The Dictionary of Mining, Mineral,
and Related Terms defines “slough” as “fragmentary rock material that has
crumbled and fallen away from the sides of a borehole or mine working.” Am.
Geological Inst., Dictionary of Mining, Mineral, and Related Terms 515 (2d ed.
1997). It defines “sloughing” as “minor face and rib falls.” Id. These
descriptions are suggestive of changing conditions in the mine and thus instability.
The descriptions of sloughing provided by Lundy and Slone are also characteristic
of instability: they explain that sloughing is caused by the pressure of rock on
the soft coal. Lundy describes sloughing as “the loose material coming down
from the coal rib from its natural state.” Tr. at 30. In other words, the coal
is changing from its natural state in reaction to the pressure created by
mining.

This interpretation is
consistent with language used elsewhere in the plan. Page 12, which involves
refuge chambers, lists sloughing as a possible defect in roof and rib
conditions. Ex. 2 at 12. Additionally, this interpretation is consistent with
Judge Maurer’s decision in Harlan Cumberland Coal, in which he held that
“heavy rib sloughage” along with other conditions created an “adverse roof
condition” triggering a provision of a mine’s extended cut plan. 17 FMSHRC
1342, 1351-52 (Aug. 1995) (ALJ).

Kopper Glo argues that the
mine’s intent in negotiating the supplement to page 16 was for the rib control
measures to be required only where there were visible cracks in the ribs or
brows. Resp. Br. at 2-3. The operator argues that there was sloughage
throughout the mine, and it would not have agreed to the additional measures if
they were required wherever there was sloughage. However, I do not find that
the testimony at hearing clearly established that intent, nor do I find that it
was expressed in the final language of the plan amendment. Thus I find this
argument unpersuasive.

Kopper Glo also asserts that
because its interpretation differed from Lundy’s, it was not provided fair
notice of the standard to be applied under the plan. Resp. Br. at 9-10. However,
I find that the plan was clear and that there is not sufficient evidence to
support an argument that the mine did not have fair notice of the requirements
of the plan. When evaluating a party’s fair notice argument, the court should
first look to see if the language of the standard “provides clear and
unambiguous notice of its coverage and requirements[.]” DQ Fire &
Explosion Consultants, Inc., 36 FMSHRC 3083, 3087 (Dec. 2014). If the
language is clear and unambiguous, then “no further notice is necessary.” Id.
If the standard is ambiguous, the court generally will defer to the Secretary’s
reasonable interpretation of the standard. See e.g. Energy West Mining Co.
v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994)). As discussed above, the roof
control plan provides clear notice to a reasonably prudent person familiar with
the mining industry and the protective purposes of the plan. After negotiating
the plan, the mine should have recognized the specific prohibitions and
requirements of the plan. See Ideal Cement Co., 12 FMSHRC 2409,
2416 (Nov. 1990).

For these reasons, I find that the
sloughing observed by Lundy was a “sign of instability” in the ribs under page
16a of the plan. The plan is clear that adverse conditions exist when there are
“visible cracks or signs of instability.” Ex. 2 at 16a (emphasis added).
I therefore find Kopper Glo’s argument that the requirements were only
triggered by cracking to be without merit. I also find that sloughing is a rib
condition “warrant[ing]” the rib control measures required under page 16. Consequently,
the mine was required to install the additional support described in the plan. Ex.
2 at 16.  Kopper Glo argues that it had not yet completed roof bolting in some
of the inspected areas and so was not required to have begun the rib control
measures. Resp. Br. at 7-8. However, the evidence shows that at least some of
the areas had been roof bolted. The mine was required to begin rib control
measures in those areas. Because the operator had not implemented the rib
control measures required by the plan, it violated the plan. The Secretary has
established a violation of 30 C.F.R. § 75.220(a)(1).

B.    
Gravity and S&S

The Secretary asserts that Kopper Glo’s violation was
highly likely to cause a permanently disabling injury and that it was
significant and substantial (“S&S”). A “significant and substantial”
violation is described in section 104(d)(1) of the Mine Act as a violation “of
such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §
814(d)(l). A violation is properly designated significant and substantial “if
based upon the particular 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.” Cement Div., Nat’l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984), the Commission explained its interpretation of the term “significant and
substantial”:

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 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 difficulty with finding a violation S&S
normally comes with the third element of the Mathies formula, in which
the Secretary must establish that there is a reasonable likelihood that the
hazard will result in an injury. The Commission has explained that the third
element of the 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., Inc., 6 FMSHRC 1834, 1836
(Aug. 1984). The Commission discussed the third element of the Mathies
test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257
(Oct. 2010) (affirming an S&S violation for using an inaccurate mine map). The
Commission clarified that the “Secretary need not prove a reasonable likelihood
that the violation itself will cause injury,” but rather that the hazard
created would cause an injury. Id. at 1280-81. The Commission reaffirmed
its position in Cumberland River Coal, 33 FMSHRC 2357, 2365 (Oct. 2011).

The Commission has acknowledged the high degree of
danger posed by roof control plan violations. See Cyprus Plateau Mining
Corp., 16 FMSHRC 1610, 1616 (Aug. 1994). In Harlan Cumberland Coal,
17 FMSHRC 1342, 1352 (Aug. 1995) (ALJ), Judge Maurer upheld an S&S
designation for a roof control plan violation involving rib sloughing.

In designating the violation S&S, Inspector Lundy
explained that given the sloughage and unstable conditions he observed, it was
likely that rock would fall from the brow or the ribs. He noted that numerous miners
worked on foot and operated mobile equipment in the areas he observed, and thus
a falling rock could hit a miner and cause a permanently disabling injury.

Kopper Glo argues that the violation was not S&S
because there were timbers in place in the areas cited to help support the roof
and brows. Resp. Br. at 15. The Secretary argues that the timbers would have
been ineffective to prevent an injury because they did not provide lateral
support. Sec’y Br. at 5. Kopper Glo counters that the primary danger was not
from a lateral rock burst because of the narrow height of the coal seam. Resp.
Br. at 15. Rather the primary danger was of a falling rock from the roof, which
the timbers would address adequately. Id. However, Lundy observed that
the operator had not fastened the timbers to the roof, so they could easily
come dislodged and would fail to protect against a rock falling from the roof. Additionally,
the falling timber itself would present a hazard. I find that the amount of
sloughing indicates that a lateral force dislodging a timber was likely to
occur and therefore the timbers did not adequately address the hazard.

Applying the elements of the Mathies test, I have
found that there was a violation of the roof control plan, and hence a
violation of a mandatory standard. This violation contributed to the hazard of
inadequately supported brows and sloughing ribs, which could lead to a fall of
the ribs or an outburst of coal. The hazard of falling ribs or coal from the
brow would be reasonably likely to lead to a miner in the area being hit by the
falling material, resulting in serious injury or death. Therefore, I find the
violation to be S&S.

C.    
Negligence

Each mandatory standard carries
with it a duty of care to avoid violations of that standard and, if a standard
is violated, a finding of negligence is made. A. H. Smith Stone Co, 5
FMSHRC 13, 15 (Jan. 1983). In this case, MSHA determined that the negligence
was high. The Secretary, by regulation, defines negligence under the Act as
“conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of
harm. Under the Mine Act, an operator is held to a high standard of care.” 30
C.F.R. § 100.3(d). High negligence, according to the Secretary’s regulations,
occurs when the operator knew or should have known of the violative condition
and there are no mitigating circumstances. Id.

In Consolidation Coal Co., 36
FMSHRC 615, 637-38 (Feb. 2014) (ALJ), Judge Barbour upheld a finding of
reckless disregard of 30 C.F.R. § 75.202 involving sloughing ribs in a lunch
area. The judge relied on the facts that the sloughage was visibly obvious and
ongoing, that the area was heavily used, and that the mine had had recent fall-related
accidents. Id.

Here, Inspector Lundy cited the
operator for high negligence. He noted that the rib sloughage had been listed
in the mine books as a hazard to be corrected for nine shifts, and that while some
of the ribs had been pulled down and timbers had been set, the operator had
taken none of the measures required by the roof control plan to further support
the ribs. In addition to these factors, the sloughage was obvious, especially
given that it was occurring in numerous locations in the working areas where
miners and management were continuously present. Further, the mine had a
responsibility to understand the requirements of the roof control plan and to
have the materials necessary to comply with the plan readily available. I thus
do not find the operator’s misunderstanding of the plan requirements to be a
mitigating factor. Finally, in the twenty-four months preceding the citation,
the mine had five violations of the roof control plan as well as a fatality
involving a roof fall. For these reasons, I find that the high negligence
assessment was appropriate for this violation.

D.   
Unwarrantable Failure

The Secretary argues that the
violation was the result of the operator’s unwarrantable failure to comply with
safety standards. The unwarrantable failure terminology is taken from section
104(d) of the Act, 30 U.S.C. § 814(d). The Commission has explained that
unwarrantable failure is “aggravated conduct constituting more than ordinary
negligence. Unwarrantable failure is characterized by conduct described as ‘reckless
disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of
reasonable care.’” Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar.
2007) (citing Emery Mining Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987))
(citations omitted). The Commission has held that in determining whether a violation
is an unwarrantable failure, the judge should consider all of the relevant
facts and circumstances in the case and determine whether there are any
aggravating or mitigating factors. Id. Based upon the following analysis
of the factors enumerated by the Commission, I find that there is not adequate
evidence to support a finding of unwarrantable failure in this case.

Extent of the violative
condition. In IO Coal Co., 31 FMSHRC 1346, 1352 (Dec. 2009), the
Commission explained that the “extent of the violative condition is an
important element in the unwarrantable failure analysis.” The purpose of considering
this factor is to “account for the magnitude or scope of the violation.” Dawes
Rigging & Crane Rental, 36 FMSHRC 3075, 3079 (Dec. 2014) (citing E.
Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010)). Relevant facts the
judge may consider include “the extent of the affected area as it existed at
the time the citation was issued[,]” the number of persons affected, and the
time and resources required to correct the condition.  Dawes Rigging, 36
FMSHRC at 3079-80; Consolidation Coal Co., 35 FMSHRC 2326, 2331 (Aug.
2013). Here, the violative condition existed in all five of the inby headings
Lundy inspected, a significant portion of the mine. At hearing, the inspector
acknowledged that some of the crosscuts did not have brows of the dimension
requiring support under page 16a of the plan. However, the inspector observed
brows and sloughing in many of the areas he observed. However, he indicated
that only two persons were affected by the violation. I find that the violation
was extensive in the amount of area affected.

Length of time that the
violation has existed. In IO Coal, the Commission
emphasized that the duration of time that the violative condition exists is a
“necessary element” of the unwarrantable failure analysis. 31 FMSHRC at 1352. Here,
the pre-shift examination books indicated that the condition had existed for at
least nine shifts prior to the citation being issued. The operator had
attempted to address the issue by setting timbers and pulling down some of the
ribs. I find that the length of time is significant in this case.

Whether the operator was
placed on notice that greater efforts were necessary for compliance.
The Commission has explained that repeated, similar violations and past
discussions with MSHA about a problem may serve to heighten the awareness of
the operator that increased efforts to comply are necessary. IO Coal, 31
FMSHRC at 1353. Prior violations may establish notice even though they did not
involve precisely the same activity, cited standard, or area of the mine and
were not the result of unwarrantable failure. Id. at 1353-54; Black
Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012). In this
case, there were five substantiated violations of the roof control plan at the
mine in the two years preceding the citation at issue. One of the five violations
involved a fatality caused by an unsupported roof. However, the mine’s citation
record for roof control violations was below the national average. While the
operator should have been familiar with the requirements of its roof control
plan, I cannot find that the mine was placed on notice that greater efforts
were needed.  

Operator’s efforts in
abating the violative condition. The Commission has explained that the
abatement efforts relevant to the unwarrantable failure analysis are those that
were made prior to the issuance of the citation or order. Consol. Coal,
35 FMSHRC at 2342. Here, the examination books indicated that the mine had
attempted to pull down the sloughing ribs. The witnesses agree that the first
step in controlling ribs is to take them down. The mine had also installed
timbers to support the brows, though they had not installed them in compliance
with the roof control plan. I find that the mine had taken efforts to abate the
condition.

Whether the violation posed
a high degree of danger. The Commission has found the high degree of
danger posed by a violation to be an aggravating factor supportive of an
unwarrantable failure finding. IO Coal, 31 FMSHRC at 1355-1356. In some
cases, the degree of danger may be “so severe that, by itself, it warrants a
finding of unwarrantable failure.” Manalapan Mining Co., 35 FMSHRC 289,
294 (Feb. 2013). A fatal accident occurring as a result of the cited condition
or practice is compelling evidence of a high degree of danger. Midwest
Material Co., 19 FMSHRC 30, 34 (Jan. 1997). Kopper Glo argues that the
sloughing ribs are not unusual in this mine and do not pose a high degree of
danger. While the violation is S&S and could lead to a rib fall and
subsequent injury, the Secretary has not shown that the degree of danger
supports an unwarrantable failure finding.

Whether the violation
was obvious. The obviousness of the violative condition is an important
factor in the unwarrantable failure analysis. IO Coal, 31 FMSHRC at 1356.
This factor is discussed in the negligence analysis above. I find that the
condition was obvious.  

Operator’s knowledge of
the existence of the violation. The Commission has held that an
operator’s knowledge of the existence of a violation may be established where
the operator “reasonably should have known of the violative condition.” IO
Coal, 31 FMSHRC at 1356-57. In this case, the operator’s actual knowledge
is difficult to discern. While the evidence shows that the operator knew that
the sloughing ribs and overhanging brows were a problem, it is not clear that
they knew they were violating the roof control plan. While I find that the plan
was clear and that the mine operator should have known what its plans required,
I nevertheless credit the testimony of the mine’s witnesses that they did not
understand that they were violating the plan. The safety personnel, the
consultant, and certainly the general manager should have known what the plan
required and I do not find that their misunderstanding negates the violation. However,
I find it relevant that Inspector Lundy himself was not entirely confident
about the requirements of the plan at first. When the mine informed Lundy they
were using timbers as brow support, he suspected that was inadequate, but went
to the surface to check the plan and speak to a roof control specialist before
making his final decision whether to issue a citation. Given that there was
some uncertainty regarding the plan, I do not find that the operator’s knowledge
was an aggravating factor here.

While the analysis is very close
in this case, I am not persuaded that the violation was the result of an
unwarrantable failure to comply. A finding of unwarrantable failure does not
require that all of the factors be present. However, in light of the evidence
presented here, I do not find that there were sufficient aggravating factors to
demonstrate an unwarrantable failure.

II.  PENALTY

The principles governing the
authority of Commission administrative law judges to assess civil penalties de
novo for violations of the Mine Act are well established. Section 110(i) of the
Mine Act delegates to the Commission and its judges “authority to assess all
civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The duty of
proposing penalties is delegated to the Secretary. 30 U.S.C. §§ 815(a), 820(a).
Thus, when an operator notifies the Secretary that it intends to challenge a
penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R.
§ 2700.28. The Act requires that in assessing civil monetary penalties, the ALJ
must consider six statutory penalty criteria: the operator’s history of
violations, its size, whether the operator was negligent, the effect on the
operator’s ability to continue in business, the gravity of the violation, and
whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping
with this statutory requirement, the Commission has held that judges must make findings
of fact on the statutory penalty criteria. Sellersburg Stone Co., 5
FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147, 1152 (7th Cir. 1984).
Once these findings have been made, a judge’s penalty assessment for a particular
violation is an exercise of discretion “bounded by proper consideration of the statutory
criteria and the deterrent purposes underlying the Act’s penalty scheme.” Id.
at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000).

The history of assessed violations
was admitted into evidence and shows a reasonable history for this mine. The
mine is a medium-sized operator. The parties have stipulated that the penalties
as proposed will not affect the operator’s ability to continue in business, and
that Respondent demonstrated good faith in abating the citation. The gravity
and negligence are discussed above. Given all of the evidence in this case, and
particularly the finding of high negligence, I find that a penalty of $20,000.00
is appropriate.

III.  ORDER

Based on the criteria in section
110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess a penalty of $20,000.00 for
Citation No. 8365728. Kopper Glo Mining, LLC, is ORDERED to pay the Secretary
of Labor the sum of $20,000.00 within 30 days of the date of this decision.

/s/ Margaret A. Miller

Margaret
A. Miller

Administrative
Law Judge

Distribution:

Jennifer Booth Thomas, U.S. Department of Labor,
Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219

Melanie J. Kilpatrick, Rajkovich, Williams,
Kipatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington,
KY 40513