S & H Mining, Inc.

Plain-English summary

S & H Mining operated Mine No. 7 and was cited for two violations of its approved roof-control plan under 30 C.F.R. § 75.220. Judge Jerold Feldman reinstated the significant-and-substantial designation for the order involving a 20-foot pillar cut that exceeded the revised plan's 15-foot limit, because continued mining could expose miners to a serious roof-support hazard. He increased that order's penalty from $2,100 to $3,000. For the second order, he found that a cut into a pillar was accidental rather than intentional, declined to find unwarrantable failure, and retained the modified citation and $400 penalty. The decision also states that seven other alleged violations had previously been resolved by settlement.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220
• Outcome: The significant-and-substantial designation was reinstated for one order and its penalty increased to $3,000; the second order remained modified with a $400 penalty.
• Key point: On remand, the judge found that the excessive initial pillar cut supported an S&S finding, but the evidence did not prove intentional mining for the second roof-control allegation.

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

                       January 22, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 93-9
Petitioner : A.C. No. 40-03011-03534
v. :
: Docket No. SE 93-10
S & H MINING, INC., : A.C. No. 40-03011-03535
Respondent :
: Docket No. SE 93-98
: A.C. No. 40-03011-03540
:
: S & H Mine No. 7

                     DECISION ON REMAND

Before: Judge Feldman

 These civil penalty proceedings initially concerned

11 alleged violations of mandatory safety standards contained in
Part 75 of the Secretary’s regulations, 30 C.F.R. Part 75. These
matters were disposed of in a decision dated October 22, 1993,
wherein the parties’ settlement terms for seven of the alleged
violations were approved and the remaining four violations were
adjudicated on the record in a bench decision. 15 FMSHRC 2196.

 These cases were remanded by the Commission for further

analysis in light of the record evidence with respect to two
alleged violations of section 75.220, 30 C.F.R. § 75.220,
for failure to comply with the Mine Safety and Health
Administration’s (MSHA’s) approved roof control plan. 17 FMSHRC
1918 (November 1995). The Commission directed that I revisit my
conclusions that the first violation was not properly designated
as significant and substantial, and that the second violation was
not attributable to the respondent’s unwarrantable failure.

A. Order No. 3382962

 On July 22, 1992, MSHA Inspector Don McDaniel, accompanied

by Charles White, S&H’s Mine Superintendent, observed a coal
pillar that had not been mined in conformity with the provisions
of the approved roof control plan that limited initial pillar
cuts to 13 feet wide. The initial cut observed by McDaniel was

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20 feet wide.1 Tr. II 67-68.2 The uncontradicted evidence
reflected the initial pillar cut was enlarged, without MSHA’s
approval, because, given the dimension of the entry, the
continuous mining machine was too large to maneuver to cut the
pillar according to the plan’s sequence. Tr. I 187, 192-93.
Following the issuance of Order No. 3382962, S&H’s roof control
plan was revised to permit it to round off a corner of the pillar
and then make an initial pillar cut of 15 feet wide. Tr. II 77-
78.

 Regardless of the necessity for increasing the size of the

initial cut, I concluded that S&H’s unilateral decision to
disregard its roof control plan was inexcusable conduct
justifying the unwarrantable failure charge. However, I also
concluded that the violation was not significant and substantial
in that S&H’s action did not compromise structural support
because the roof control plan “was ultimately modified to
essentially conform to the respondent’s method of initial pillar
cut.” 15 FMSHRC at 2199.

 In its remand decision, the Commission noted that the

20 foot cut cited by McDaniel did not conform with the revised
plan permitting 15 foot cuts. Consequently, the Commission
concluded the record fails to support my initial decision that
the unauthorized 20 foot cut did not compromise roof support.

 A violation is properly characterized as significant and

substantial if there is a reasonable likelihood that the hazard
contributed to by the violation will result in serious injury.
Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (April 1981);
Mathies Coal Co., 6 FMSHRC 1 (January 1984). The likelihood of
injury must be evaluated in the context of continued mining
operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August
1985).

 Upon further reflection, it is clear that the respondent’s

20 foot initial cut significantly exceeded the 15 foot cut
permitted by the revised roof control plan. Although McDaniel
testified he did not observe anyone under unsupported roof
at the time he issued the order, when viewed in the context of
continued operations, McDaniel’s testimony that over cutting

   1
       The pillars are approximately 35 feet square.   Tr. I 182,

205.
2
The hearing was conducted on September 28 and 29, 1993.
“Tr. I” refers to the September 28 hearing and “Tr. II” refers to
the September 29 hearing.

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posed a continuing hazard to miners traversing the affected
travelway supports the significant and substantial designation in
Order No. 3382962.

 Accordingly, the significant and substantial designation

deleted in my initial decision is hereby reinstated. I initially
assessed a civil penalty of $2,100 for Order No. 3382962. Given
the civil penalty criteria in section 110(i)of the Mine Act,
30 U.S.C. § 820(i), that contemplates higher penalties for
violations involving increased gravity, the assessed civil
penalty in this matter shall be increased to $3,000.

B. Order No. 3382964

 On the second day of the inspection, on July 23, 1992,

McDaniel, again accompanied by White, was standing two crosscuts
from section foreman Steve Phillips who was operating a
continuous miner to clean up loose waste material (gob) in an
entry. Tr. I 199. McDaniel conceded that S&H’s continuous miner
was too big to maneuver and operate in compliance with its roof
control plan given the configuration of the crosscuts, the
location of the pillars and the size of the entries. Tr. II 11-

13. McDaniel observed Phillips load a shuttle car with gob and,
    as another shuttle car arrived, positioned the miner against the
    side of the pillar, penetrating the pillar,3 without having first
    installed roof support timbers as required by the roof control
    plan. Tr I 199-200. McDaniel, with White, approached Phillips
    after he had made a 12-foot-wide, 38-inch-deep wedged shaped cut
    in the pillar.4 Tr. I 200. Phillips told McDaniel that he was
    still cleaning up gob and had cut the pillar unintentionally.
    Tr. I 205-06.

    Although I concluded this violation was significant and
    substantial, I declined to credit the Secretary’s unwarrantable
    failure assertion because the evidence did not establish that
    Phillips’ alleged mining was intentional given the angle of the

    3
    As discussed infra, McDaniel repeatedly referred to
    Phillip’s penetration of the pillar as “mining.” Counsel for the
    Secretary correctly acknowledged that “cutting” into the pillar
    was the appropriate term as the question of “mining” is the
    dispositive issue to be resolved. Tr. I 200.
    4
    As discussed infra, the dimensions of this wedged shape
    cut are crucial. McDaniel repeatedly gave the impression that
    the cut was essentially 12 feet wide by 38 inches deep, when in
    fact, it was a wedge shaped cut penetrating the pillar at
    approximately 15 degrees. Tr. I 200, 204, 205, 207.

                           3
    

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cut and the other evidence of record. 15 FMSHRC at 2198. The
Commission’s remand noted that I did not adequately indicate why
I rejected McDaniel’s conclusion that Phillip’s action could not
have been accidental given the 12 foot distance cut into the
pillar. 17 FMSHRC at 1923.

 McDaniel issued the subject Order No. 3382964 for an alleged

roof control plan violation of section 75.220 for S&H’s failure
to set timbers before mining a pillar. Order No. 3382964 stated:

The approved roof control plan was not being complied
with on the working section where pillars was (sic)
being mined. The first cut out of the pillar was
started and the A Timbers in the outby crosscut had not
been installed. The miner cut started on a angle for
12 feet and penetrated the coal bed 38" inches deep
(emphasis added).

 In my initial decision I rejected the unwarrantable failure

charge because the Secretary had failed to establish that this
violation was “a willful rather than a negligent act.” 17 FMSHRC
at 1922. The Secretary argues that I erred when I concluded that
this violation can be found to be unwarrantable only if it is
“intentional.” The corollary is that the Secretary can prevail
even if Phillips’ act was unintentional. However, here S&H has
been charged for its failure to set timbers before mining a
pillar. Try as I might, I do not understand the Secretary’s
assertion that Phillips’ actions constituted mining even if his
contact with the pillar was inadvertent.

 Of course, a willful act is not ordinarily a prerequisite to

an unwarrantable failure. Significantly, S&H was not charged
with aggravated carelessness, reckless disregard or other
unintentional unjustifiable conduct. On the contrary, Phillips’
maneuvering of a large continuous miner, in entries too small to
permit compliance with its roof control plan, mitigates
negligence if the pillar was penetrated accidentally. Thus, the
negligence associated with an accidental penetration is
inadequate to support an unwarrantable failure in this case.
Moreover, it would require extremely aggravated, unintentional
conduct under these circumstances to warrant unwarrantable
failure as an operator is under no obligation to set timbers
prior to an unanticipated encounter with a pillar.

 Rather, the Secretary’s unwarrantable failure case is only

sustainable if Phillips was (intentionally) mining. There are
several reasons why the Secretary has not met his burden of
proving Phillips was mining. As noted in my initial decision,
the shape of the wedge fails to convince me that Phillips’ act

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was intentional. McDaniel’s testimony and the exhibits reflect
Phillips cut into the pillar at a 15 degree angle removing a
wedge in the shape of a right triangle. See Gov. Ex. 12-C,
Resp. Ex. 17; Tr. I 208-10, Tr. II 49, 53-54. One side of the
wedge (triangle) is 144 inches (12 feet) long. At the end of
this side is a side 38 inches deep. These two sides constitute
the right angle. The remaining side (the hypotenuse) is
approximately 149 inches long. The remaining angles of the
removed wedge, depicted in Gov. Ex. 12-C and Resp. Ex. 17, are
15 degrees and 75 degrees.5

 Thus, it is inappropriate to consider the maximum

penetration of 38 inches to have occurred along the entire
12 foot length of the cut. Rather, the first few feet of the cut
constituted a 15 degree glancing blow only inches in depth.
Moreover, the Secretary failed to present any evidence concerning
how long it took to make this cut or whether the continuous miner
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was clearly positioned by Phillips to cut into the coal seam.
Therefore, on balance, the weight of the evidence concerning the
dimensions and circumstances of the cut does not support the
Secretary’s position that Phillips was mining.

 There are additional facts that do not support the

Secretary’s assertion that Phillips’ act was intentional.
McDaniel has admitted that the entry was narrow, and, the
continuous miner was comparatively large which made maneuvering
difficult. Moreover, Phillips’ asserted operation of the
continuous miner for non-mining purposes is supported by
McDaniel’s observations of Phillips loading gob in shuttle cars.

 While exculpatory statements must be viewed cautiously, such

statements are entitled to greater weight when they are made
spontaneously. For example, Phillips’ assertion to McDaniel at
the time of the inspection, during a period when he had been
cleaning gob, that his contact with the pillar was inadvertent is

5
  I take judicial notice of the Pythagorean Theorem and

trigonometric functions that calculate the length of the
remaining side of the wedge and the remaining two angles of the
right triangle formed by the wedge.
6
McDaniel’s testimony that the miner head could cut into
the pillar a few feet, “but you couldn’t travel 12 feet and say
it was an accident,” reflects the position of the continuous
miner could have been accidental. Tr. I 207. As noted, it is
misleading to say the miner head traveled 12 feet given the angle
of entry into the pillar.

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of more evidentiary value than if such a position was initially
taken at trial.

 Additionally, it is uncontroverted that Phillips knew

McDaniel, who was accompanied by superintendent White for a
second day, was in the vicinity inspecting the mine. Such
knowledge, while not alone dispositive, supports Phillips’
spontaneous, albeit exculpatory, statement to McDaniel that his
penetration into the crib was accidental. I place no evidentiary
value on the fact that there is no evidence that Phillips knew
McDaniel was watching him at the time he committed the violation.
As one who travels to work on streets where a 30 mile per hour
speed limit is frequently enforced by radar “speed traps,” my
conduct is not dictated by whether I am certain the police are
actually watching me as I crawl along the street on my way to the
office. On the contrary, the mere possibility that a radar unit
may be in the area is an extremely effective deterrent that
governs my behavior. Similarly, Phillips’ assertion that his act
was unintentional is consistent with his knowledge of McDaniels’
presence in the mine.

 Finally, the Commission, citing Youghiogheny & Ohio,

9 FMSHRC at 2011 (in overseeing compliance with the roof control
plan, the section foreman is held to a demanding standard of
care) notes that a higher standard of care is required of mine
management such as superintendent White and foreman Phillips.
17 FMSHRC at 1923. However, surely Youghiogheny does not support
the proposition that accidents (as distinguished from cases
involving supervisory responsibility) by mine management through
ordinary negligence are attributable to an unwarrantable failure.

 The Secretary has the burden of proving every element of a

citation. While Phillips’ conduct may have evidenced mining if
he had not been quickly interrupted by McDaniel, based on the
record before me, the Secretary has failed to rebut S&H’s
affirmative defense that Phillips’ action was inadvertent rather
than intentional. Having concluded that Phillips’ action was
accidental, there is insufficient evidence to attribute Phillips’
actions to more than moderate negligence given the narrow entries
and large mining machine. Consequently, I adhere to my initial
decision that modified Order No. 3382964 to a 104(a) citation and
assessed a civil penalty of $400.

                         ORDER

 In view of the above, IT IS ORDERED that the significant and

substantial designation for Order No. 3382962 IS REINSTATED. The
civil penalty for Order No. 3382962 is increased from $2,100 to

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$3,000. Payment of this additional $900 penalty is to be made
within 30 days of the date of this decision.

                         Jerold Feldman
                         Administrative Law Judge

Distribution:

Susan E. Long, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

Imogene A. King, Esq., Frantz, McConnell & Seymour, P.O. Box 39,
Knoxville, TN 37901 (Certified Mail)

/ma

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