Mining Property Specialists, Inc.

Plain-English summary

Mining Property Specialists employees installed a survey station 20 inches beyond the last row of permanent roof supports at a coal mine. Judge T. Todd Hodgdon found a violation of the unsupported-roof standard, but concluded that the company's negligence could not be established through the employees' conduct and that the violation was not an unwarrantable failure. The judge modified the citation from a 104(d)(1) order to a 104(a) citation, reduced negligence from high to none, deleted the unwarrantable-failure designation, and assessed a $100 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.202(b)
• Outcome: Citation 7305588 was affirmed as modified, with the negligence level reduced to none, the unwarrantable-failure designation deleted, and a $100 penalty assessed.
• Key point: A serious unsupported-roof violation does not automatically establish operator negligence or unwarrantable failure when employee negligence cannot be imputed and the operator's supervision was not shown deficient.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                         OFFICE OF ADMINISTRATIVE LAW JUDGES
                                    2 Skyline, Suite 1000
                                     5203 Leesburg Pike
                                Falls Church, Virginia 22041


                                    February 5, 2002

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 2001-20
Petitioner : A. C. No. 44-01696-03501 4FT
v. :
: Mine No. 2
MINING PROPERTY SPECIALISTS, INC., :
Respondent :

                                      DECISION

Appearances: Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Harry W. Meador, III, President, Mining & Property Specialists, Inc., Big Sto ne
Gap, Virginia, pro se, for Respondent.

Before: Judge Hodgdon

   This case is before me on a Petition for Assessment of Civil Penalty brought by the

Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
Mining Property Specialists, Inc. (MAPS), under section 105 o f the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petition alleges a violation of the Secretary’s
mandatory health and safety standards and seeks a penalty of $500.00. A hearing was held in Big
Stone Gap, Virginia.1 For the reasons set forth below, I modify the citation and assess a penalty
of $100.00.

                                      Background

    MAPS is an engineering and environmental services firm located in Big Stone Gap,

Virginia. Among other things, it provides surveying services for various underground coal mines
in the area.

   1
      Subsequent to the hearing, the Respondent requested that the September 7, 2001,

deposition of MSHA Inspector John Godsey be admitted into evidence. There being no objection
by the Secretary, the deposition is admitted into evidence as Respondent’s Exhibit D.

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    On August 25, 2000, MAPS employees William Johnson, transit man, and Chad Huff, rod

man, went to the Fork Ridge No. 2 mine in Wise County, Virginia, to install a survey station
indicating the direction of an ent ry. On arriving at the mine, the surveyors checked in with mine
management and then proceeded to the No. 1 entry to install Survey Station 208. At the time they
entered the mine, and while they performed their duties, the mine was not producing coal because
there was a problem with the belt line. It took the surveyors 15 to 20 minut es to complete their
work.

   As the surveyors were leaving, sometime between 8:00 a.m. and 8:30 a.m., they

encountered MSHA Inspectors Gary Roberts and John Godsey, who were arriving to inspect the
mine. The inspectors went into the mine to conduct their inspection accompanied by Hagy
“Bear” Barnett, the Mine Superintendent. For most of the time they were underground, the mine
was down. Mining was resumed sometime between 10:00 a.m. and 11:00 a.m.

    At about 12:00 noon, Inspector Godsey went to inspect the face in the No. 1 entry. He

discerned that the last row of roof bolts in the entry did not appear to be within five feet of the
face, as required by the mine’s roof control plan. He also observed that a warning reflector, or
streamer, had been placed on the right hand side of the last row of bolts. He called Roberts and
Barnett, who were still in the No. 2 entry, to come and verify what he had seen.

    Although it was not as obvious to him, Roberts agreed that the last row of bolts appeared

to be farther than five feet from the face. When Godsey measured the distance, he found t hat the
last row was six feet, nine inches, from the face on the left side and six feet, one inch, on the right
side. Roberts and Barnett both saw the warning reflector on the right side.

   All three observed, after measurement, that Survey Station 208 was 20 inches inby the last

row of roof bolts. From this, Godsey and Roberts concluded that the surveyors had gone under
unsupported roof. Consequently, they issued Citation No. 7305588 to MAPS, under section

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104(d)(1) of the Act, 30 U.S.C. § 814(d)(1),2 alleging a violation of section 75.202(b) of the
Secretary’s regulations, 30 C.F.R. § 75.202(b), because:

            Based on evidence present in the face of the number 1 entry 001-0
            active section at survey station number 208, survey stations have
            been installed inby the last row of permanent roof supports.
            William Johnson, Supervisor [,] and Chad Huff, surveyor [,] were
            present at the mine site on August 25, 2000. A reflectorized
            warning device was installed on the last row of permanent roof
            supports.

(Govt. Ex. 1.) Section 75.202(b) provides that: “No person shall work or travel under
unsupported roof unless in accordance with this subpart.”

                        Findings of Fact and Conclusions of Law

    MAPS asserts that at the time the surveyors installed the survey station they were not

under unsupported roof. The Secretary, of course, argues that they were. Because of the time
lapse between the installation of the survey station and the inspection of the area, both sides rely
on circumstantial evidence to sustain their positions. The preponderance of the evidence,
however, supports the Secretary.

     The surveyors testified that when they entered t he mine they were not advised of any

hazardous conditions in the mine. They maintained that when they arrived at the face of the No. 1
entry, they did not observe any warning reflector or streamer. Not seeing any warning, and not
having been informed of any hazardous conditions, and not observing any obviously hazardous
conditions, they assumed the area was safe and performed their work. They both admitted to
having been inby the last row of roof bolts at some time during the installation of the survey
station.

   2
       Section 104(d)1) provides, in pertinent part:

                     If, upon any inspection of a coal or other mine, an
            authorized representative of the Secretary finds that there has been
            a violation of any mandatory health or safety standard, and if he
            also finds that, while the conditions created by such violation do not
            cause imminent danger, such violation is of such nature as could
            significantly and subst antially contribute to the cause and effect of a
            coal or other mine safety or health hazard, and if he finds such
            violation to be caused by an unwarrantable failure of such operator
            to comply with such mandatory health or safety standards, he shall
            include such finding in any citation given to the operator under this
            Act.

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     Based on this testimony, it is the Respondent’s position that at the time the surveyors were

working, the last row of roof bolts was within five feet of the face and, therefore, the surveyors
were not under unsupported roof. This theory is premised on the fact that the roof control plan
requires a warning device at the last row of roof bolts if the area inby them is hazardous. 3 Hence,
if there was not a warning device the area inby was not hazardous.

    The company explains the fact that the area inby the last row measured more than five feet

at 12:00 by surmising that some time between when the surveyors were present and the
inspection, one foot, one inch, to one foot, nine inches, of coal was mined from the face.
Unfortunately, there is no evidence to support this argument.

    It is undisputed that no mining was performed, after the surveyors finished, until somet ime

between 10:00 a.m. and 11:00 a.m. There is no evidence that anyone observed mining in the No.
1 entry between that time and the inspection. Barnett testified that to the “best of [his]
knowledge” no mining was done in the No. 1 entry before the inspection. (Tr. 73.)

     The Respondent hypothesizes that a small amount of coal may have been mined to

facilitate t he mining of the bleeder to the left of the No. 1 entry. However, even the Respondent
admits that such a cut, if it were made, would be nine and one quarter feet deep, not six feet, nine
inches. (Resp. Br. at 13-14.) Thus, the depth of the entry does not support this theory.
Furthermore, there does not appear to be any reaso n, from a mining standpoint, to mine such a
small amount of coal.

    While it would have been nice to have evidence from someone who was actually present in

the mine during the time in question, e.g. the section foreman or the continuous miner operator,
the preponderance of the evidence in this case supports a finding that there was no change in the
No. 1 entry between the installation of the survey station and the inspection.

     Since the area inby the last row of roof bolts was unsupported roof both at the time the

surveyors were present and the time of the inspection, and the surveyors admit t hat they were inby
the last row of roof bolts, it follows that they worked under unsupported roof. The Act provides
that an operator is liable for the violative acts of its employees. Bulk Transportation Services,
Inc., 13 FMSHRC 1354, 1359-60 (September 1991). Accordingly, I conclude that MAPS
violated section 75.202(b) as alleged.

                                Significant and Substantial




   3
       Barnette testified that altho ugh the roof control plan only requires the placement of a

warning device at the last row of roof bolts if the area inby is more than five feet from the face,
and t hus unsupported, or to indicate some other hazardous condition, the company customarily
places such a device at the last row whether the condition inby is hazardous or not. (Tr. 85-86.)

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    The Inspector found this violation to be “significant and substantial.” A "significant and

substantial" (S&S) violation is described in Section 104(d)(1) of the 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." A violation is properly designated S&S "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 Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four

criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7t h Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-
04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is “significant and substantial” must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2007 (December 1987).

    In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying

violation o f a safety standard; (2) a distinct safety hazard, 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 will be of a reasonably serious
nature. Mathies, 6 FMSHRC at 3-4.

   MAPS asserts that the violation was not “significant and substantial” because the area of

unsupported roof varied from 13 inches on one side to 21 inches on the other, the mine was noted
as having “good top” and the surveyors were only 20 inches inby the last row of roof bolts.
(Resp. Br. at 17.) Therefore, the Respondent argues, the violation does not meet the second and
third Mathies criteria. I find to the cont rary.

    In Consolidation Coal Co., 6 FMSHRC 34 (January 1984), the Respondent made the

same type of argument. In that case, the company contended that spacing roof bolts farther apart
than permitted in the roof control plan contributed neither to a hazard nor a reasonable likelihood
that such a hazard would result in injury. In rejecting this contention, the Commission held that:
“Mine roofs are inherently dangerous and even good roof can fall without warning.” Id. at 37. It
went on to say that “despite the generally good conditions and the absence of reportable injuries
in the previous six months, these over-wide bolts created ‘a measure of danger to safety or
health.’” Id. at 38. Similarly, I find that working under unsupported roof created a measure of
danger, i.e. being struck by a roof fall, to safety or health.

   Turning to the third element, there is little evidence to support the Secretary’s position.

Inspector Roberts testified on this issue as follows:

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                    It’s dangerous to be under unsupported roof, especially inby
           the last row of permanent supports, at any time . . . [because] the
           roof is not supported and there is a good possibility that you could
           have a roof that’s not supported that could fall at any given time.

                   It’s highly likely that unsupported roof could fall. Perhaps,
           I guess, looking at the history of roof falls and being involved with
           roof – I gave a safety talk the other day of the fatalities that we’ve
           had this year.

                   I think almost half of the fatalities of people that have been
           killed with roof falls or falling pieces of rock have incurred [sic]
           inby the last row of permanent supports, so it’s very serious, what
           we consider no man’s land. It’s no place to be.

(Tr. 30-31.) No other evidence was offered by the Secretary on the issue.

    On the other hand, the company did not offer any evidence to rebut the inspector’s

assertions. The inspector’s judgment is an important element in an S&S determination. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278 (December 1998). Therefore, considering the
inspector’s testimony along with the understanding that mine roofs are inherently dangerous, I
find that it was reasonably likely that the unsupported roof would fall and result in an injury.

  I also find that a disabling injury or death would be the likely result a roof fall.

Accordingly, I conclude that the violation was “significant and substantial.”

                                   Unwarrantable Failure

    The Commission has held that unwarrantable failure is aggravated conduct constituting

more than ordinary negligence by a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2010 (December 1987). “Unwarrantable failure is characterized by such conduct
as ‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference’ or a ‘serious lack of reasonable
care.’ [Emery] at 2003-04; Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94
(February 1991).” Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994); see also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s
unwarrantable failure test).

    The Secretary’s argument that this violation involved an unwarrantable failure is based on

the theory that Johnson was “acting in a supervisory role when he went to” the mine. (Sec. Br. at
10.) The evidence, however, does not support this theory.

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    The Commission has long held that the negligence of a “rank-and-file” miner cannot be

imputed to the operator, in this case the contractor, for penalty assessment purposes. Fort Scot
Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Western Fuels-Utah,Inc., 10
FMSHRC 256, 260-61 (March 1988); Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August
1982) (SOCCO). To determine whether such a miner was an agent of the operator, whose
negligence can be imputed to the operator, “the Commission examines whether the miner was
exercising managerial or supervisory responsibilities at the time the negligent conduct occurred.
U.S. Coal, Inc., 17 FMSHRC 1684, 1688 (October 1995).” Whayne Supply Co., 19 FMSHRC
447, 451 (March 1997).

    It is the Secretary’s position that the following factors made Johnson a supervisor: (1) He

was the transit man; (2) The inspectors and, perhaps, the mine superintendent thought he was a
supervisor;4 (3) He testified that he was responsible for a project while at the mine site: (3) When
the mine superintendent had a problem he went to the transit man; (4) He told the mine
superintendent who needed hazard training; (5) He marked the mine maps, although the maps had
to be certified by the company president; and (6) He directed the activities of the rod man.

    In Whayne Supply, the Commission rejected a similar argument by the Secretary as

“lacking legal and evidentiary support” because “[a]lthough t he record evidence indicates that [the
miner] was a highly experienced repairperson who needed little supervision and helped less
experienced employees, this does not convert him into a supervisor, much less a manager.” Id.
The Commission further found that there was no evidence that he “exercised any of the traditional
indicia of supervisory responsibility such as the power to hire, discipline, transfer, or evaluate
employees. Nor was there any evidence that [the miner] ‘controlled’ the mine or a portion
thereof; rather he merely carried out routine duties involving the repair of Caterpillar machinery.”
Id.

     Likewise, in this case there is no evidence that Johnson exercised any of the traditional

indicia of supervisory responsibility. Indeed, the evidence is that he did not have such authority,
did not think he had such authority and did not exercise such authority. The two man crew
performed routine surveying work which was “pretty much the same every time when you go in.”
(Tr. 96.) Directing the activities of the rod man, i.e. telling him where to stand with the rod, and
marking the mine map are part of the normal, routine surveying duties. Such actions do not make
him a supervisor anymore than do the actions of the continuous miner operator directing the
activities of the miner helper make him a supervisor.

   Further, Johnson did not determine who needed hazard training, direct him to get it or tell

the mine superintendent who needed hazard training; rather if a new employee was with him he
“would take them to get their hazard training if they didn’t know to get it.” (Tr. 97, emphasis
added.) In addition, Barnett stated: “I know when it’s a touchy situation you’ve got to know for

   4
        Barnett said: “As far as just ever thinking about it, I’d really never give it a thought.”

(Tr. 78.)

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sure, you know, Bill [Huff] is usually the one that comes to the problem.” (Tr. 79.) Bill Huff was
the person in MAPS office who sent the surveyors on their missions. Thus, mine personnel did
not go to the transit man for consequential problems.

    Consequently, I conclude that Johnson was not a supervisor whose conduct, if it was

aggravated, can be imput ed to MAPS. However, that does not end the inquiry because the
Commission has further held that: “[W]here a rank-and-file employee has violated the Act, the
operator’s supervision, training and disciplining of its employees must be examined to determine
if the operator has taken reasonable steps to prevent the rank-and-file miner’s violative conduct.”
SOCCO at 1464. While this standard is normally applied in determining the operator’s negligence
for penalty purposes, the Commission has also confirmed that it applies in determining whether an
operator can be held responsible for an “unwarrantable failure.” Whayne Supply at 452-453.

    Nonetheless, the Secretary did not present any evidence concerning MAPS supervision,

training and disciplining of its employees. Nor is there sufficient evidence in the record to make
such a determination. Since the Secretary has failed to show that the Respondent’s supervision,
training and discipline of its employees was deficient, it must be concluded that the company had
taken reasonable steps to prevent the violative conduct.

    Finally, it is uncontroverted that no MAPS supervisor was present when the violation was

committed. Cf. Midwest Material Co., 19 FMSHRC 30, 35 (January 1997). Accordingly,
inasmuch as neither Johnson’s nor Chad Huff’s negligence can be imputed to MAPS and there is
no evidence that the company engaged in aggravated conduct, I conclude that the violation was
not the result of an “unwarrantable failure.” The citation will be modified appropriately.

                                Civil Penalty Assessment

   The Secretary has proposed a penalty of $500.00 for this violation. However, it is the

judge’s independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section 110(i) of the Act, 30 U.S.C. § 820(i). Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).

   With regard to the penalty criteria, the parties have stipulated, and I so find, that the

penalty will not adversely affect MAPS’ ability to continue in business. (Tr. 9.) I also find that
MAPS is a very small company and that, since its Assessed Violation Histo ry Report shows that it
had no previous violations within the two years preceding this violation, it has an excellent history
of previous violations. (Govt. Exs. 5 and 6.) I further find that the Respondent demonstrated
good faith in attempting to achieve rapid compliance after notification of the violation.

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    Turning to the question of gravity, I find this to be a serious violation. Working or

traveling under unsupported roof is one of the more dangerous activities that can occur in a coal
mine. On the other hand, as discussed in the section on “unwarrantable failure” there is no
negligence that can be imputed to the Respondent.

   Therefore, taking all of these criteria into consideration, I assess a penalty of $100.00.


                                           Order

    Citation No. 7305588 is MODIFIED by reducing the level of negligence from “high” to

“none,” by deleting the “unwarrantable failure” designation and by making it a 104(a) citation, 30
U.S.C. § 814(a), instead of a 104(d)(1) citation. The citation is AFFIRMED as modified.
Mining Property Specialists, Inc., is ORDERED TO PAY a civil penalty of $100.00 within 30
days of the date of this decision.

                                          T. Todd Hodgdon
                                          Administrative Law Judge

Distribution: (Certified Mail)

Karen Barefield, Esq., U.S. Department of Labor, Office of the Solicitor, 4015 Wilson
Boulevard, Room 516, Arlington, VA 22203

Harry W. Meador, III, President, Mining & Property Specialists, Inc., 1912 Wildcat Road, Big
Stone Gap, VA 24219

nt

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