Paramont Coal Corporation
Paramont Coal Corporation (FMSHRC VA 86-46): High negligence affirmed and $850 penalty assessed
Apply this to your situation
This order from 1987 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Paramont Coal Corporation was assessed a civil penalty for loose overhanging coal and rock brows and fractured coal ribs at its Deep Mine No. 13. The parties stipulated that the violation of 30 C.F.R. § 75.202 occurred, leaving the level of negligence and the penalty for decision. Judge George A. Koutras affirmed the inspector's high-negligence finding and rejected the argument that the citation involved an unwarrantable failure. He ordered Paramont to pay an $850 civil penalty within 30 days, after which the proceeding would be dismissed.
Decision snapshot
- Cited standards: 30 U.S.C. § 820(a); 30 U.S.C. § 820(i); 30 C.F.R. § 75.202; 30 C.F.R. § 100.3(d).
- Outcome: The violation and high-negligence finding were affirmed, and an $850 civil penalty was ordered.
- Key point: The operator's failure to correct known loose ribs and overhanging brows supported a high-negligence finding.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. PARAMONT COAL
DDATE:
19871005
TTEXT:
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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. VA 86-46
PETITIONER A.C. No. 44-06112-03507
v. Deep Mine No. 13
PARAMONT COAL CORPORATION,
RESPONDENT
DECISION
Appearances: Page H. Jackson, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Petitioner; Karl K. Kindig,
Esq., The Pittston Company, Abingdon, Virginia,
for the Respondent.
Before: Judge Koutras
Statement of the Case
This proceeding concerns a proposal for assessment of civil
penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking a civil penalty assessment in
the amount of $850 for a violation of mandatory safety standard
30 C.F.R. 75.202, as stated in a section 104(d)(1) Citation No.
2752968, issued on February 14, 1986, at the respondent's mine.
The respondent filed a timely answer contesting the citation and
a hearing was held in Duffield, Virginia. The parties filed
posthearing briefs, and the arguments presented therein have been
considered by me in the course of my adjudication of this case. I
have also considered the oral arguments made by counsel during
the course of the hearing.
Issues
The parties have stipulated as to the fact of violation, and
they agree that a violation of section 75.202 occurred as stated
by the inspector in the citation. The parties agree
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that the only issue presented in this case is whether or not the
proposed civil penalty assessment based on the inspector's
finding of "high negligence" was correct (Tr. 5). The parties
also agreed that the validity of the section 104(d)(1) citation
insofar as it alleges an "unwarrantable failure" by the
respondent is not an issue in this civil penalty proceeding (Tr.
5).
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub.L.
95Ä164, 30 U.S.C. 801 et seq.
2. Section 110(i) of the 1977 Act, 30 U.S.C. 820(i).
3. Commission Rules, 20 C.F.R. 2700.1 et seq.
Stipulations
The parties stipulated to the following (Tr. 8Ä9):
1. The respondent is the owner and operator of the Deep
No. 13 Mine, and is subject to the jurisdiction of the
Act.
2. The presiding judge has jurisdiction to hear and
decide this matter.
3. The inspector who issued the citation in question
was acting in his capacity as an authorized
representative of the Secretary of Labor.
4. The citation in question was duly served on the
respondent, and all witnesses testifying in the hearing
are accepted generally as experts in coal mine health
and safety.
5. The imposition of a civil penalty for the violation
in question will not adversely affect the respondent's
ability to continue in business.
6. The respondent is a wholly owned subsidiary of Pyxis
Resources Company, a subsidiary of the Pittston Coal
Corporation. In 1985, the respondent was a wholly owned
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subsidiary of a partnership controlled by the Hanna Mining
Company and W.I. Grace Company.
7. In 1986, the respondent produced approximately
400,000 tons of coal, and it is a medium-size coal
company.
8. A violation of mandatory safety standard 30 C.F.R.
75.202, did in fact occur as stated and alleged in the
citation which was issued in this case.
9. MSHA's computer print-out concerning the
respondent's assessed history of prior violations as
reflected in exhibit GÄ1 may be used in determining an
appropriate civil penalty assessment.
10. The violation was abated by the respondent within
the time fixed by the inspector.
Section 104(d)(1) "S & S" Citation No. 2752968, issued on
February 14, 1986, cites a violation of mandatory safety standard
30 C.F.R. 75.202, and the cited conditions or practices are
described as follows:
Loose overhanging coal and rock brows and fractured
coal ribs were present in the Nos. 2, 3, 4, and 5
entries on the 001 No. 1 active working section
beginning at the section belt feeder and extending inby
for approximately 200 feet including the
interconnecting crosscuts left and right. The loose
overhanging brows and fractured ribs were located in
regularly traveled haulways and were readily visible.
The mining height is from 9 to 10 feet. The brows were
from 3 feet to 8 feet long from 2 feet to 4 ft. thick
and overhanging from 10 inches to 3 feet. Also, the
belt entry from the 3rd interconnecting crosscut outby
the No. 2 drive inby to the belt tailpiece.
The inspector fixed the abatement time as 8:00 a.m.,
February 18, 1986, and on that day another inspector extended the
abatement time to February 29, 1986, because "a roof fall at the
mine has stopped all work. Additional time is granted."
Thereafter, on March 3, 1986, a third inspector
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extended the abatement time to March 10, 1986, for the following
reason:
The operator is in the process of permanently
abandoning the mine. However, some of the ribs have
been taken down and as the mine is being pulled out the
rest of the areas involved will be timbered or taken
down. More time is granted to complete the work being
done to correct this citation.
The citation was terminated on March 7, 1986, and the
termination notice states that "The overhanging coal and rock
brows and fractured coal ribs referred to in Citation No. 2752968
were either taken down or supported."
Petitioner's Testimony and Evidence
MSHA Inspector Larry Coeburn confirmed that he issued the
citation during the course of a spot inspection conducted on
February 14, 1986, with his supervisor Ewing C. Rines. The
inspection was in conjunction with a fatal roof fall accident
investigation which began that same morning (Tr. 17). Mr. Coeburn
stated that he observed overhanging brows in at least 10
locations, and loose ribs at approximately four locations, and
that he recorded these in his notes, and later reproduced them on
a sketch or map of the area which he prepared for the hearing
(exhibit GÄ3; Tr. 20Ä22). He measured the brows by means a
carpenter's rule and recorded the results on the sketch, and
confirmed that none of them were supported (Tr. 24). Some of the
brows were pulled down with very little effort, but he did not
record these in his notes or on the sketch. He was not aware of
any brows where attempts were made to pull them down, and they
did not come down.
With regard to the loose and fractured ribs located on the
sketch, Mr. Coeburn stated that he observed visible vertical
fractures and separations of coal away from the main coal pillar,
and that some of the ribs had been rock dusted at places where
the pressure on the pillar "had caused it to sort of break
outward, ravel, slough" (Tr. 26).
Mr. Coeburn identified exhibits GÄ4 through GÄ8 as sketches
of the areas where he found he cited rib and brow conditions, and
he explained the conditions and locations as depicted on the
sketches (Tr. 26Ä36). He stated that miners would be working in
these areas at different times, and he observed signs of travel
by shuttle cars and scoops in the
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haulageways and entries (Tr. 39, 42). He confirmed that he
observed four loose, overhanging coal and rock brows on the
walkway clearance side of the belt haulageway outby the areas
depicted on the sketch, exhibit GÄ3, and confirmed that men would
normally walk along that walkway. However, he observed no loose
ribs in this walkway area (Tr. 45).
Mr. Coeburn confirmed that five people would normally be
working in the areas where he observed the loose brows and
fractured ribs, and they would be building stoppings and working
on the belt. Also, at any given time, one person would be present
on a piece of equipment along the travelways (Tr. 42Ä43). Mr.
Coeburn believed that it was highly likely that a roof fall would
occur, and that due to the mining height and the size of the
overhanging brows and the extent of the fractured ribs, if falls
occurred, fatal injuries would result. Under all of these
circumstances, he concluded that the cited conditions constituted
a significant and substantial violation (Tr. 47Ä48).
Mr. Coeburn stated that the coal brows were "man-made" and
were created during the mining and removal of coal. They were
left by the continuous-mining machine that had mined the entries
up to the roof line. On the ribs and corners, the exposed brows
were left where the machine had not mined all the way up the
entry. The machine bit markings were evident on the brows (Tr.
43Ä44).
In response to a question as to why he made a finding of
"high negligence" on part II of the citation form, Mr. Coeburn
responded as follows:
Q. Now, you checkedÄunder negligence, Part II, you
checked high. Why do you believe the respondent,
Paramont Coal Corporation, demonstrated high negligence
in allowing this condition to exist?
A. The brows were man-made, made with the continuous
mining machine as mining progressed. The conditionsÄthe
overhanging brows and loose ribs were very obvious to
anyone who entered that area. They were very obvious.
This mining wasÄcoal was being mined on the section at
this time or immediately prior to this and had
beenÄthese conditions had existed -- in my opinion, the
brows had existed for some time prior to this taking
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place, with preshift examiners being required to travel these
haulways, on-shift examinations, qualified people making
examinations, and these conditions were very obvious.
Not only that, but the workmen, the continuous mining
machine operator, the roof bolters were in this area
installing roof support. The continuous mining machine
created these brows. It was very obvious. Therefore,
they should have known; they should have known
something about it.
Q. How about the rib conditions?
A. The rib conditions were very visible, obvious, very
obvious, very obvious.
Q. Now, on the 14th of February, 1986, when you first
observed each of the conditions cited in this citation,
did you observe any danger boards or warning signs?
A. No, sir.
On cross-examination, Mr. Coeburn confirmed that his
inspection on February 14, 1986, constituted his first visit to
the mine. He also confirmed that in issuing the citation, he
discussed the conditions with Mr. Rines and with Mr. Gary
Sweeney, the respondent's representative who accompanied them
during the inspection. Mr. Coeburn stated that he was not
familiar with the civil penalty assessment negligence criteria
found in 30 C.F.R. 100.3(d). He confirmed that when he made his
"high negligence" finding, he did so without specific reference
to that regulation (Tr. 53Ä54).
Mr. Coeburn believed that three prior mine inspections were
conducted by MSHA in January and February of 1986, and he was not
surprised to learn that seven inspections were actually conducted
during that time period (Tr. 54). When asked to explain the basis
for his testimony that the cited rib and brow conditions had
existed "for some time," he replied as follows at (Tr. 55):
A. The distance that had been mined from the tailpiece
to the face, and the brows, in particular, were
createdÄthey were made during mining. That is what I
base it on, that they had been there.
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Q. But you had never been in this mine before.
A. No, sir.
Q. When you say some time, how long is some time?
A. At least six to seven production shifts.
Mr. Coeburn stated that he issued the citation on his own
initiative, and that the roof fall accident which was being
investigated had no connection with the cited rib and brow
conditions (Tr. 56, 58). He confirmed that generally two mine
examiners per shift conduct the required preshift and onshift
examinations, but that he did not review the examination records
covering the prior six or seven shifts for the cited areas in
question. He also confirmed that he did not speak with any of the
mine examiners or with any of the equipment operators (Tr. 59).
Mr. Coeburn stated that he served the citation on mine
foreman Ron Orender, but did not believe that he discussed the
matter with him. However, Mr. Sweeney told him that similar brow
and rib conditions had existed in the past down the belt entry
and that the brows had been supported. However, Mr. Coeburn
confirmed that the cited brows were not supported (Tr. 60Ä61).
The parties agreed that the applicable mine roof-control
plan does not contain any specific requirements for taking down
loose ribs or brows, and petitioner's counsel stated that he was
relying on the regulatory requirement found in section 75.202,
which has general applicability to all mines, while the
roof-control plan provides "specific patterns for this mine" (Tr.
62Ä63).
Ewing C. Rines, MSHA Supervisory Inspector, agreed with
Inspector Coeburn's gravity findings, and confirmed that his
experience has shown that rib rolls and brows have consistently
contributed to fatality incidents year in and year out (Tr. 68).
Referring to exhibit GÄ3, a sketch prepared by Mr. Coeburn
with respect to the locations of the cited brows and ribs,
specifically the crosscut between the No. 3 and 4 entry just inby
the feeder and running to the right towards the No. 4 entry, Mr.
Rines stated that he observed the rib conditions for
approximately an hour and was "very perturbed
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about the situation" (Tr. 69). He stated that the ribs on the top
side of the "rock parting" were fractured from the No. 3 entry
all the way through to the No. 4 entry and had a very visible
separation. He described the separation as "you could see as far
as you could see back in there and it was sort of on a slip-like
plane. It got deeper as it penetrated into the coal fractures" in
the No. 3 entry going toward the No. 4 entry (Tr. 70Ä71).
Mr. Rines explained the circumstances and appearances of the
"rock parting" which would give one an indication that the rib
was beginning to become loose and fractured, including pressure
breaks which would cause "the coal raveling a little bit near the
roof line," sloughing of the face of the rib, or visible cracks
(Tr. 73Ä74). On the other hand, the rib may just "roll
immediately" (Tr. 74).
Mr. Rines was of the opinion that the rib conditions which
he observed "had been in the making for awhile," and that "there
had been some indicators as far back as a week," and his reason
for these conclusions were stated as follows at (Tr. 74Ä75):
A. I would say that there had been some indicators as
far back as a week. The reason I say that is the fact
that they didn't have a fractured rib problem or rib
problem over the entire section. Normally, if you've
got rib problems, it will start either from the left
side of the section and go all the way across or the
right side, all the way across, or go from the middle,
out to.
But that wasn't true in this situation here. This was
in this localized area for this particular section here
even though he did have a loose, fractured rib up here,
but it was nothing to the extent that this was down
here (indicating).
**********
A. These ribs did notÄfrom the day we seen them, on the
14thÄthis condition didn't occur just overnight or over
the past three or four days. I'm saying there should
have been some indicators or signs there as far back as
a week. And the reason I say that is if you
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had had this kind of relief occurring instantaneously, the ribs
would have rolled out and filled the entry up.
**********
Q. Now I want to turn your attentionÄwell, let me ask
you one more question about this loose rib condition or
all the loose rib conditions on the section. What would
Paramont have had to do to correct the condition if
they had noticed it, say, six days before the 14th?
A. They could have taken down that portion that was
fractured. * * * I would like to add, too, some
people don't like to cut ribs down because it exposes
more roof, which requires additional support. So that
is why sometimes they set timbers to support.
Referring again to the sketch, exhibit GÄ3, Mr. Rines
described the condition of the brows which existed at the
locations shown on the sketch, and he explained the existence of
the brows as follows at (Tr. 79Ä80):
A. These brows, since they didn't have any sloughing or
undercutting of the bottom portion of the coal seam
under the rock parting, these brows were left there
during the continuous mining cycle for whatever time
the cycle had been. For what reason, I don't know.
But the miner, when he was on his mining cycle, during
the making of these brows, he failed to cut that
portion, which originally was part of the coal face,
and he failed to cut that portion of it down.
**********
A. Since he didn't get it the first time, he
definitelyÄif they can't get it down no other way, you
know, they could support it temporarily till he gets
back on the second
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cycle, and he should definitely take it and cut it down.
**********
Q. What would, in your opinion, a reasonably prudent
section foreman do when he observed one of these brows
after the miner had pulled out of an entry, a
particular entry?
A. He would make arrangements to either have the brow
taken down or supported.
**********
Q. Based upon your experience in the thick tiller seam
and your knowledge of the conditions in the Deep Number
13 Mine, of the mining conditions, do you have any
idea, let's say, for example, how long the brows that
are immediately inby the belt feeder may have been in
existence?
A. Looking from where the belt feeder is locatedÄand
you have an open crosscut immediately inby. That is one
(1), two (2), three (3)Äthere is four (4) crosscuts to
your most inby brow ribs.
And considering the height of their coal, they were
high producers, but they probably wouldn't have gotten
over eight (8) or nine (9), at the most, or ten (10)
cuts per shift, which would have probably averaged
about eighteen (18) feet per shift).
So you're talking about several days here to mine this
distance; that is, from the feeder up to a short
distance of those that are up there in the last line of
open crosscuts.
Q. When you say several days, are you talkingÄ
A. Well, at leastÄfrom what I'm looking here and
knowing, you know, the way they mine, I'm going to say
at least ten days, because this is very high coal.
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Mr. Rines was of the opinion that the brow conditions in the
crosscut immediately inby the belt feeder should have been
apparent to a preshift or onshift examiner at least 10Ädays prior
to the time the citation was issued, and that the brow that was
left during the mining cycle should have been noticed by the next
trip of the preshift examiner, as well as by the section foreman
on his shift (Tr. 82).
Mr. Rines confirmed that MSHA Inspector Ronald E. Adkins
works for him, and that he was at the mine on February 10 and 12,
1986. Mr. Adkins informed him that he had not observed the cited
rib and brow conditions (Tr. 93Ä94). The regularly assigned
inspector, Teddy Phillips, would not have observed the cited area
during his prior inspection visit on January 10, 1986, because
mining was going on in another area (Tr. 85, 94). Mr. Rines
stated that he has had occasion to visit a mine and found a
readily apparent violation that he had missed the day before (Tr.
95).
On cross-examination, Mr. Rines stated that he discussed the
cited conditions with Inspector Adkins at length because he was
concerned that one could be in the area and miss the conditions.
He confirmed that no disciplinary action was taken against Mr.
Adkins (Tr. 96).
In response to a question as to whether or not anyone
walking from inby the belt feeder toward the face in the No. 3
entry, past the crosscut which he discussed would have occasion
to see the cited rib conditions, Mr. Rines responded "not if he
didn't go in that particular area" and "if he hadn't went into
the crosscut he would not have seen" (Tr. 97Ä98). If one were
walking on the right side of the entry, he should have at least
observed the brow immediately at the feeder, unless it was hidden
by a line curtain. The walkway was on the left side of the entry
(Tr. 98Ä99).
Mr. Rines confirmed that he was present on February 14,
1986, during the accident investigation and heard Mr. Ron Hamrick
a Virginia State Mine Inspector, make the following statement
(Tr. 101):
I'll add something to that, E.C. I inspect that mine
regularly. During an inspection, takes me three or four
days, I go out on all shifts to do it, and they really
impress me. They watch the ribs.
But I can go in today and have every rib we find pulled
down, cut down, try to knock
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out with scoop or take bar and knock down. I go in tonight and
find more ribs that have loosened up just between one shift to
the next. I observed this myself.
Mr. Rines confirmed that he was in the mine on one prior
occasion several weeks before February 12, 1986, to look at some
diesel shuttle cars, and while he was in the section where the
rib and brow conditions were cited, that particular area had not
been mined. Although he did walk the air intake entry on that
occasion, he did not notice any loose ribs or overhanging brows
(Tr. 106).
Mr. Rines confirmed that if someone were walking on the left
side of the haulway in the No. 3 entry toward the face, they
could easily walk by the crosscut at the feeder and not notice
the ribs, but if they travelled into the crosscut, it would have
been obvious that the ribs were severely fractured (Tr. 107).
However, there were a minimum of seven people on this section
every day, including the section foreman. Mr. Rines stated that
while it was possible for an area where fractured and loose ribs
and brows were taken down to have the same problem the next day,
such an area would also have serious roof control problems.
Shifting roof weight and bottom coal sloughing out would result
in coal brows other than those which are left from mining (Tr.
111). However, he saw no such brows on February 14th. Mr. Rines
confirmed that the cited brow and rib conditions were prevalent
down the belt entry in question (Tr. 116). However, he disagreed
that they were prevalent in the working section, but agreed that
in the belt entry the respondent had set a lot of timbers and
cribs to try to control rib rolls, and that massive ribs rolls
existed in that entry (Tr. 117).
Respondent's Testimony and Evidence
Mine Foreman Ronald R. Orender described the system of
mining being used in January and February, 1986, and he confirmed
that the rib work and setting of cribs was done during the
midnight maintenance shift. He stated that the mine had some bad
bottom conditions and that the ribs were bad (Tr. 130). Due to a
bad and wet uneven mine bottom, the large 12Äfoot wide ram cars
would sometimes tear out the rib cribs. The ribs would be barred
or cut down. The brows in question which would be left by the
miner were difficult to bolt, and sometimes when the miner
returned to cut them down it could not reach the top, and some
brows would be left (Tr. 131).
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Mr. Orender described the procedures followed for providing
protection along the entry as the belt feeder was advanced during
the mining cycle. He explained that the belt was usually moved up
for two breaks, sometimes once a week, and sometimes it would
take 2 weeks to get up far enough to move. They would then go
back and do the cribbing work outby, especially in the belt line
which seemed to be the worst area. He explained the problems
encountered while attempting to timber, crib, or otherwise
support some of the rib rolls. Ribs were being pulled inby the
belt feeder, and all three shifts were instructed "to try to pull
what we could." Some of the brows that could be reached with the
miner were pulled, and others would stick to the roof and could
not be pulled. Attempts were made to bolt some of the brows, but
the bolter could not get close enough to the rib and "some we may
have missed." Mr. Orender stated further that ribs were
constantly being pulled in the face areas and that "sometimes you
would pull and it would leave a brow" (Tr. 132Ä134).
Mr. Orender stated that steps were taken to alert the work
force about the bad rib conditions and that morning safety talks
were conducted, and the miners were constantly told to watch the
ribs and to try to pull down any bad ribs. He stated that
"sometimes they would and sometimes they wouldn't" (Tr. 134). He
stated further that a lot of the ribs which were pulled down
would again develop cracks by the next day, and some would again
develop cracks within 24Ähours. However, he could not recall
pulling any ribs a day or two prior to the accident, but knew
that some were pulled "over that way" (Tr. 135).
Mr. Orender confirmed that the rib conditions inby the belt
feed area were particularly bad during January and February of
1986, and more problems were encountered within the last 300 to
400 feet of mining in that area, but steps were taken to protect
the miners by installing wire mesh around the shuttle cars which
were not designed for an enclosed canopy (Tr. 136).
Mr. Orender confirmed that he accompanied the inspectors at
the time the citation was issued, and they called his attention
to a rib that had sloughed off in the tailpiece area. The
crosscut was dangered off, and the next day two foremen went in
with a miner machine and knocked the ribs down and installed crib
blocks in the area. No coal was run after the accident and hourly
miners were not working the section. Another fall occurred outby
the area, and the conditions worsened. Four to 6 days later the
decision was made that coal could no longer be mined safely and
the mine was
Page 15
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closed because of the rib conditions and the outby top, and out
of concern for the safety of the miners (Tr. 138Ä139).
On cross-examination, Mr. Orender stated as follows at (Tr.
139Ä141):
Q. Now, I believe you testified on direct examination
in regard to the working places that existed on
February 14, the area inby the tailpiece, that you
didn't recall having anybody pull any ribs for a day or
two prior to the accident. Isn't that correct? You
don't recall any ribs being pulled for two days prior
to the accident?
A. Not myself personally, no.
Q. You don't have any knowledge of anybody doing it?
A. I didn't see them.
Q. Nobody told you they pulled any either, did they?
A. Well, it wasn't a practice to do that. I mean, if
you seen a bad rib, the worker or the foreman, they
would pull a rib, you know, without even, you knowÄ
Q. You also talked about you were always telling them
to watch the ribs and men were supposed to pull the
ribs if they saw a cracked or fractured rib.
A. We tried to, yes.
Q. You tried to. You said sometimes the men did not do
that?
A. I'm sure they did. I'm sure there was times they did
not pull ribs when they should have.
Q. What was the company's practice when the men did not
pull a rib they should pull?
A. We would usually ask them, "why did you go by
there?" Or something. And a lot of times
Page 16
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they would answer, "well, we didn't see it." You know, everybody
was aware those ribs were bad. And we had safety meetings and it
was put in the preshift books where we did have talks with the
men about these ribs, that they were to be pulled and so forth.
Q. Mr. Orender, isn't it true that if the men
themselves didn't pull the ribs, that management didn't
insist those ribs be pulled?
A. No, sir. You're wrong. No. No, that is not true.
Q. Then why in my prior question didn't you tell me
that management went and pulled the ribs themselves?
A. Management did pull. We pulled ribs ourself.
Everybody worked together in that mines to try to pull
what we could when we saw them. I'm sure we didn't see
all of them, you know.
Mr. Orender stated that the respondent's efforts to address
the rib and brow problems were not confined totally to the
maintenance shifts, and that attempts were made to take them down
during the day and evening production shifts (Tr. 152Ä153). Mr.
Orender agreed that the entries and crosscuts labeled "hw" on the
sketch, exhibit GÄ3, were the haulageways down the belt entry,
and that they were used for that purpose some of the time but not
necessarily all of the time. He also agreed that the battery
charging station is properly located on the sketch and that it
would be used to charge equipment from one shift to the next.
Access to these areas by walking was through several possible
routes which he described (Tr. 155Ä156). He agreed that none of
the brows which he observed on February 14, 1986, as marked on
the sketch, were supported. Some of the brows were taken down
before the mine was abandoned, and others were not (Tr. 157Ä158).
In response to a question as to how long the cited
conditions may have existed before they were found by the
inspector on February 14, 1986, Mr. Orender responded as follows
at (Tr. 158Ä159):
A. Your Honor, some of the brows could have possibly
been there for four or five days, but
Page 17
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the rib conditions, like I say, it's hard to say.
Q. Go ahead.
A. Sometimes you could walk by a corner and there
wouldn't be a crack and you go by there two hours after
and the pressure had made a crack in it. But some of
the brows were probably there, yes.
Q. And you say, the ribs, the conditions could exist
from day to day.
A. Yes, sir. They did, definitely, the ribs.
Q. How about loose ribs. I'm not talking about
fractured ribs, but what about some of the loose ribs.
Is there a distinction between a loose rib and a
fractured rib? Is there a difference between those two?
A. In my opinion, a cracked rib maybe is not as
dangerous as one that is real loose where it could
fall. But then sometimes you could put a bar on one
that you wouldn't think was very loose and you take two
men and try to pull on it and you couldn't pull it
down. And other times you would touch it and it would
come down.
Mr. Orender identified exhibit RÄ2, as an inspection report
he signed which indicates that Virginia State Mine Inspector Ron
Hamrick was in the mine on February 3, 1986, conducting an
inspection for 4 hours and that he issued no violations (Tr.
192Ä194).
MSHA Inspector Ronald E. Adkins confirmed that he was
familiar with the subject mine, had been in it five or six times,
and that the sketch depicting the working face areas (exhibit
GÄ3), which existed in February, 1986 appears basically accurate
(Tr. 161Ä163). Mr. Adkins confirmed that he was underground in
the mine on February 10, 1986, for 2 hours, and spent the
majority of his time in the working faces. He reached the working
faces by walking up the number three entry inby the belt feeder
as shown on the sketch, and while he was there he observed no
overhanging brows or cracked ribs that constituted violations of
any MSHA regulations. The purpose of his mine visit was a "walk
and talk inspection" for the
Page 18
~1734
purpose of alerting miners as to "what was going on in the
industry so far as accidents and try to get across to them how
critical their own initiative so far as their safety was, how
important it was" (Tr. 165Ä167).
On cross-examination, Mr. Adkins stated that the working
faces on February 10, 1986, were not as depicted on the sketch in
question, and that they were probably advanced a crosscut or
more. While he was there, line curtains were hung in all working
places (Tr. 168). Referring to his notes of his February 10,
visit, he confirmed several notations indicating that he examined
each of the six working places as depicted on the sketch, and
that the working practices he observed were good. Another
notation reflected that 5Äfoot resin roof bolts were being
installed in all entries and that the bolting pattern was good.
He confirmed that the work habits and procedures of the miners at
that time were adequate (Tr. 168Ä169).
When asked to explain his failure to observe the violative
rib and brow conditions in question, Mr. Adkins responded as
follows at (Tr. 170Ä171):
* * * Eighty percent (80%) of the fatalities occur
within fifty (50) feet of the face, of the working
faces and, basically, I would say I spend ninety
percent (90%) of my time there.
In this situation on the walk and talk inspections, we
are assigned a group of mines. We're given, more or
lessÄwe need to finish these in a certain length of
time to get back to our regular work. I'm sure by
looking at my time sheets, I was pushed for time on
this.
But it is my personal policy and MSHA's District 5
policy, too, when we enter a mine, we will make the
working faces and check for imminent dangers. I'm sure
I did that. As far as seeing these things outby, I just
didn't see them. I wasn't in the area.
Q. You say you weren't in the area.
A. It's possible I could have walked by one. It could
have been behind a curtain. I could have been talking
to someone or something like that and not noticed it.
Page 19
~1735
Q. Okay. Are you telling me on that day you didn't go in
specifically to check roof conditions or ribs and brows or
fractured ribs, that sort of thing?
Q. No, sir. That is always our number one priority, but
the inspection, the walk and talk inspection, is more
to make contact with the people, to get on a one-to-one
basis with them, talk to them. We talk to them in a
group, watch them work and discuss their work habits.
That is basically what I was there for that day.
Ronald Hamrick, State of Virginia Coal Mine Inspector,
stated that he has inspected the subject mine since it began
operating and that he has been in it five or six times. He
confirmed that he participated in the fatality investigation on
February 14, 1986, and he identified exhibit RÄ1 as a partial
transcript of a statement that he made during the course of a
conference held on that day with several MSHA inspectors in
connection with the investigation, and read parts of the
statement into the record (Tr. 175Ä177).
A. I'll add something to that, E.C. I inspect that mine
regularly. During an inspection, which takes me three
or four days, I go out on all shifts to do it, and they
really impress me. They watch the ribs.
But I can go in today and have every rib we find pulled
down, cut down, try to knock it out with a scoop or
take a bar and knock them down. I go back in tonight
and find more ribs have loosened up just between one
shift and the next.
I observed this myself. And while I'm running my big
mouth, I would like to add something to find a way of
preventing this accident, but let's not jump off the
deep end and come up with some rig that would cause
these miners to be exposed to more danger than what the
conditions we already have.
Ron and I have talked about trying to design a
protection for rib rolls, but we agree, as you said,
E.C., rib rolls are not a problem right at the
immediate face, but
Page 20
~1736
actually past them but in behind them, two crosscuts back is
where the ribs start loosening up and moves and so on.
But let's not come up with some half-cocked idea that
would expose people to more hazards.
Mr. Hamrick confirmed that he was familiar with the mine
layout as depicted in the sketch, exhibit GÄ3, and he confirmed
that the rib and brow conditions marked on the sketch "probably"
existed generally in the area two crosscuts back from the face.
Other than the rib conditions in the mine, he described the
general mine conditions as "as average type mining" (Tr. 180). He
stated that from his experience in the mine, everyone, including
employees and management, were aware of hazardous rib conditions,
which he believed were inherent in the Clintwood seam, and that
all personnel were constantly on the alert for these conditions,
pulling them down when they were discovered. He confirmed that he
constantly gave advice to management as to how to guard against
the rib conditions, and stated that he never previously discussed
these conditions with MSHA inspectors Rines, Coeburn, or
Phillips. Mr. Hamrick also stated as follows at (Tr. 181):
A. Well, as I say, this is an inherent condition with
the Clintwood seam. There isn't much you can do to
these ribs and brows other than watch them, take them
down as they're discovered and as they loosen up.
In past experience, I've tried bolting ribs. I've tried
putting steel bands around ribs to hold them together.
I've tried numerous things. In some thirty-seven (37)
years' experience, I never did find anything that was
actually a way of handling unsafe ribs other than
watching them, stay away from them as much as possible.
Mr. Hamrick stated that he went over the entire section of
the mine on February 14, 1986, and with respect to the brow
conditions noted on the sketch, exhibit GÄ3, he confirmed that he
observed unsupported brows, but could not recollect how many he
observed and could not remember counting them (Tr. 184). He
confirmed that he did observe the ribs between the number 3 and 4
entries shown on the sketch, and that he issued a citation for
those conditions (Tr. 185). He also confirmed that the cited rib
conditions were also in the area between
Page 21
~1737
the belt feeder and the battery charger (Tr. 188). However, he
could not state how long the conditions had existed, and stated
that such rib conditions "occurred unexpectedly, and often, quite
frequently" (Tr. 188). He also stated that the brow conditions
which are outby the face areas were probably caused by the coal
rolling out from under them, and he doubted that they were caused
by a continuous miner leaving them on a prior shift because "the
men at the mine were so particular and so self-conscious of the
fact that these were hazardous they would not leave one" (Tr.
190). However, he could not explain why the cited brow conditions
were not taken care of prior to February 14th when the MSHA
inspectors found them (Tr. 190). He also stated that it was
entirely possible that the brow conditions came about over a
short period and possibly a day, but confirmed that he was not
with the inspectors when they viewed the cited brow conditions
and issued the citation (Tr. 191). He confirmed that his citation
may have been for the same or similar conditions cited by the
MSHA inspectors and that he required the ribs or brows to be
removed or supported (Tr. 191).
Mr. Hamrick stated that under state regulations, he does not
make any negligence findings as part of any citations he issues.
He confirmed that while he had no idea how long the conditions
cited by the MSHA inspectors may have existed, they may have been
there "for hours or days." He further explained that "I have
observed by going in on one shift and following immediately, the
next shift, brows have loosened up between shifts" (Tr. 192).
Petitioner's Negligence Arguments
During oral argument at the close of its case in response to
the respondent's motion for a summary dismissal of this case
(which was denied), petitioner's counsel asserted that the
testimony of the inspectors makes it clear that the cited rib and
brow conditions were readily observable for as much as a week
prior to the February 14, 1986 inspection, and that the
conditions existed in areas which were regularly travelled and
required to be examined by onshift and preshift examiners. Given
these facts, counsel concluded that there is a clear inference
that the respondent's personnel knew or should have known of the
conditions for a week or 10Ädays prior to the inspection. Under
the circumstances, counsel took the position that the respondent
was "very negligent-if not grossly negligent" (Tr. 121Ä122).
Petitioner's counsel asserted that in addition to the
testimony of the inspectors, Mine Foreman Orender confirmed
Page 22
~1738
that he was aware of brows which were not taken down or supported
because it was impractical to do so due to the use of oversized
ram cars which were knocking down the cribs. Counsel further
asserted that the evidence establishes that the brows had been in
existence since they were created by the continuous-mining
machine during the normal mining cycle, and that Mr. Orender
specifically admitted that no ribs had been taken down on the
section for at least 2Ädays prior to the inspection. Counsel
concluded from this that no brows were created by rib rolls for
at least 2Ädays prior to the inspection, and that they were in
fact created by the mining machine (Tr. 196Ä198).
Petitioner's counsel took the position that mine management
had knowledge of the cited conditions, knew what should have been
done to correct the conditions, but did not take the appropriate
action mandated by the Act. Counsel asserted that "the standard
is not what is reasonably practical in the operator's mind, but
whether the operator's conduct is reasonable in view of the
standard mandated by the Act" (Tr. 196). Counsel suggested that
section 75.202, mandates that loose ribs and overhanging brows be
immediately taken down or supported. He cited Westmoreland Coal
Company, 7 FMSHRC 1338 (September 1985), as an example of a case
where a mine operator's negligence was lowered because of
evidence that he had immediately tried to support or take down
overhanging ribs. In the instant case, however, counsel asserts
that the respondent did not give immediate attention to the cited
conditions, and that the brows, at least, had been in existence
since they were created by the continuous miner (Tr. 98).
Conceding that the respondent may have taken appropriate action
in other mine areas, counsel concluded that this was not done in
the areas which were cited by the inspector (Tr. 210).
Responding to the respondent's suggestion that the cited
brow conditions were left after the rib had rolled, counsel
stated that if this were the case, the respondent should have put
on some direct evidence to support such a conclusion. Counsel
took the position that any inferences that the brows were left by
rib rolls is directly contradicted by the inspectors'
observations of teeth marks made by the continuous-mining machine
at each of the brow locations, and that "those teeth marks
obviously would not be there if the brow was created by a rib
roll" (Tr. 208).
Petitioner's counsel filed a written posthearing brief, and
the arguments advanced are essentially the same as those made
during the course of the hearing. With regard to the
Page 23
~1739
cited conditions, counsel relies on the testimony of Inspectors
Coeburn and Rines that all of the brows they observed were
created by the continuous miner, and Mine Foreman Orender's
testimony that many of the brows were created by the miner.
Counsel also relies on the inspectors' testimony that the brows
may have existed for 6 to 10Ädays prior to the inspection, and
Mr. Orender's admission that they may have been present for 4 or
5 days.
With regard to the cited rib conditions, counsel points out
that Inspector Rines observed a visible separation between the
loose ribs and the remaining block of coal, and was of the
opinion that the separation had been apparent for about a week,
and Mr. Orender's statement that it was hard to say how long the
ribs had been in that condition. Counsel concludes that the
violation resulted from the respondent's unwarrantable failure to
comply with the cited standard.
Respondent's Negligence Arguments
Respondent's negligence argument is based on mitigating
circumstances, and counsel points out that the petitioner had
people at its disposal who could have testified as to the
respondent's past practices and mine history, but chose only to
call people who had no real experience with the mine (Tr. 124).
Counsel states that the respondent was well aware of the existing
mine conditions, but instructed its employees to watch out for
the conditions and that it was doing everything that was
reasonably practical to control the conditions. When the
respondent concluded that the worsened conditions could not be
safely controlled, the mine was shut down (Tr. 195).
Taking issue with the petitioner's characterization of Mine
Foreman Orender's testimony, respondent's counsel asserts that
Mr. Orender simply stated that he was personally unaware of any
ribs being taken down for 2Ädays prior to the inspection. Counsel
points out that Mr. Orender also testified that because of the
instructions given to the miners, they would, on their own
initiative, routinely take down any loose ribs they encountered.
Since it was such a common occurrence, they would not necessarily
report it to the mine foreman (Tr. 205). Counsel also points out
that in addition to the testimony of Mr. Orender, a man with long
experience in the mine, the respondent also presented the
testimony of state mine inspector Hamrick, the only disinterested
witness in this case, and the testimony of an MSHA inspector who
was in the mine 2 to 4Ädays prior to the inspection on February
14, 1986, whereas
Page 24
~1740
the petitioner has presented testimony from two inspectors who
were in the mine for a total of 1 or 2 days (Tr. 205Ä206).
Referring to the negligence criteria found in Part 100 of
MSHA's civil penalty assessment regulations, 30 C.F.R.
100.3(d), counsel points out that three of the negligence
categories, "low," "moderate," and "high," are all based on one
common factor, namely whether the operator "knew or should have
known of the violative condition or practice." What distinguishes
the three levels is the existence of "considerable mitigating
circumstances," "mitigating circumstances," and "no mitigating
circumstances" (Tr. 206).
Counsel asserts that the circumstances relied on by the
respondent to mitigate its negligence consists of its history in
dealing with adverse rib and brow conditions, the testimony of
state mine inspector Hamrick, who inspected the mine on a regular
basis and believed that the cited conditions could have existed
for less than a few hours, and the particular circumstances with
the particular coal seam where rib rolls occurred either
instantaneously or over a very short period of time, leaving
loose ribs and brows (Tr. 207). Counsel maintains that the
respondent took significant steps to protect its employees from
the roof and rib conditions present in the mine, including the
designing and installation of personnel protective devices beyond
those mandated by MSHA, and the constant reminding of its
employees to watch the rib conditions (Tr. 134, 136).
Counsel states that Inspector Coeburn, by his own admission,
had no knowledge of the history of the mine, that the petitioner
did not produce Inspector Phillips, the regular MSHA inspector,
and that the petitioner's perception of this mine is on a very
narrow time frame. On the other hand, counsel points out that the
respondent has relied on the testimony of its experienced mine
foreman, an MSHA roof control specialist (Adkins) who was in the
mine 2 to 4Ädays prior to the inspection and who did not observe
the cited conditions, and the state inspector who knew the
history of the mine and who testified that the respondent was
actively concerned about the cited conditions and was taking all
appropriate steps to deal with them (Tr. 207).
Respondent's counsel filed a written posthearing brief and
essentially advanced the same arguments made orally during the
course of the hearing. Counsel cites a decision by Commission
Judge Melick in MSHA v. Rushton Mining Company, 5 FMSHRC 2081
(December 1983), in support of his argument
Page 25
~1741
that the failure of MSHA Inspector Adkins to observe the
conditions when he was in the mine, coupled with the testimony of
State Inspector Hamrick, belies the petitioner's assertion that
the cited rib and brow conditions had existed for at least 4Ädays
prior to the date of the citation. Counsel cites Judge Melick's
observation at 5 FMSHRC 2083Ä2084:
It is not disputed that Klemick was indeed present in
the same mine section two days before, as alleged, but
he claims not to have noticed the rib conditions
because he was concentrating on another violation. I
find it difficult to believe, however, that an
experienced miner and mine safety inspector would be so
oblivious to conditions he characterized as "an
imminent danger" if they were as obvious and dangerous
as he alleges. Thus while there is no doubt that
overhanging rib conditions did exist with detectable
fractures, I do not find that the conditions were as
obvious as now alleged by MSHA. Accordingly, while I
find the operator to have been negligent in allowing
the cited conditions to exist, I do not find it to have
been grossly negligent.
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. 75.202, which requires in pertinent
part that "Loose roof and overhanging or loose faces and ribs
shall be taken down or supported." Although the standard does not
specifically refer to "brows," the parties are in agreement that
a "brow" is akin to an overhanging rib and is located in area
where the rib ends and the roof starts (Tr. 197). In any event,
the respondent has conceded that the cited rib and brow
conditions were present, that they were not taken down or
supported, and that the cited conditions constituted a violation
of section 75.202. Accordingly, the violation IS AFFIRMED.
History of Prior Violations
Exhibit GÄ1 is an MSHA computer print-out summarizing the
respondent's compliance record for the period August 1, 1984
through August 13, 1986. That record reflects that the respondent
was issued nine section 104(a) citations, and one combination
section 104(a) Ä 107(a) citation-order, for which
Page 26
~1742
it paid civil penalty assessments totalling $386. Two prior
section 75.202 roof control violations issued in 1984 were
assessed a total of $161, and two section 75.200 violations
issued in 1985 were assessed at a total of $70. For an operation
of its size, I conclude and find that the respondent has a good
compliance record, and I find no basis for otherwise increasing
the civil penalty assessment for the violation which has been
affirmed in this case.
Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business
The parties have stipulated that the respondent is a
medium-size coal operator and that a civil penalty assessment for
the violation in question will not affect its ability to continue
in business. I adopt this stipulation as my finding and
conclusion on this issue.
Good Faith Compliance
The parties have stipulated that the violation was timely
abated by the respondent. Inspector Coeburn confirmed that after
the citation was issued, the respondent dangered off the cited
area by placing boards and a sign across the entry and marked off
the affected areas with spray paint (Tr. 46Ä47). Under these
circumstances, I conclude and find that the respondent exercised
good faith compliance in timely correcting the violative
conditions.
Gravity
The record in this case establishes that at the time the
citation issued, the mine was idle due to a fatality which had
occurred, and that it was subsequently closed when the roof
conditions worsened. There is no evidence that any normal mining
activities, other than abatement work, took place subsequent to
the issuance of the citation. However, the fact remains that the
existing loose ribs and overhanging brows, which were
unsupported, and present on the working section, did present a
potential hazard to those miners expected to travel and work in
the affected areas immediately prior to the inspection. As a
matter of fact, the unrebutted testimony of Inspector Coeburn
reflects that some of the brow conditions were present along a
belt walkway normally used for travel by miners and that the
loose ribs which he cited were readily barred down with little or
no effort. Inspector Coeburn also confirmed that the cited rib
and brow conditions were present along haulageways and entries
where miners and equipment would be present during normal mining
activities, and that given the
Page 27
~1743
conditions of the ribs, a scoop or anything coming in contact
with the ribs could have easily caused them to roll. Further, the
testimony of Mine Foreman Orender confirms that the rib and brow
conditions were bad in the affected area in question and that
oversized mining machines often tore down the cribs used to
support the ribs. Mr. Orender also confirmed that brows which
were difficult to bolt or which were inaccessible because of
their high locations were sometimes left in place. Given all of
these circumstances, I conclude and find that the cited violative
rib and brow conditions were serious.
Significant and Substantial Violation
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
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the 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, 3Ä4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety
standard; (2) a discrete safety hazardÄthat is, a
measure of danger to 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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in
Page 28
~1744
an event in which there is an injury." U.S. Steel Mining Co., 6
FMSHRC 1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(1), it is the
contribution of a violation to the cause and effect of a hazard
that must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel
Mining Company, Inc., 6 FMSHRC 1573, 1574Ä75 (July 1984).
Incorporating by reference my gravity findings, and applying
the principles of a "significant and substantial" violation as
articulated by the Commission in the aforementioned decisions, I
conclude and find that the cited rib and brow conditions
constituted a significant and substantial violation of section
75.202. Although it may be true that no coal was being mined at
the time the violative conditions were observed and cited, and
the mine was later closed because of adverse roof conditions, in
terms of continued normal mining operations, the adverse rib and
brow conditions which were present on the working section
presented a real hazard and potential for rib rolls and falling
brows, and I conclude and find that there was a reasonable
likelihood that the loose overhanging coal and rock brows and
fractured ribs could contribute to the hazards resulting from the
violative conditions in question. I further conclude and find
that had the unsupported ribs or brows rolled or fallen, and
struck miners on foot or in equipment passing by the areas where
they were located, injuries of a reasonably serious nature would
have resulted. Accordingly, the inspector's "significant and
substantial" finding IS AFFIRMED.
Negligence
In support of Inspector Coeburn's "high negligence" finding,
petitioner relies on his testimony, as well as the testimony of
Inspector Rines, who was with Mr. Coeburn. Both inspectors
personally viewed and examined the cited rib and brow conditions,
and Mr. Coeburn took measurements and counted the overhanging
brows. Both inspectors were of the opinion that the unsupported
brows had been created by the continuous miner during prior
mining cycles. Based on their observations of the miner cutting
bit marks left in the coal ribs, and the advanced mining cuts
which had been taken, they believed that the brows had existed
for at least six to seven production shifts, and possibly as long
as 10 days. As for the loose and fractured rib conditions, both
inspectors testified that they were readily visible, and that
visible separations were
Page 29
~1745
readily observable between the loose rib areas and the block of
coal. Inspector Rines was of the opinion that the separation had
been apparent for at least a week, and he discounted any notion
that the separation had occurred quickly. In his view, had the
separation occurred quickly, there would have been a massive rib
roll into the entry.
Petitioner also relies on the testimony of Mine Foreman
Orender, and points out that Mr. Orender conceded that many of
the brows were created by the continuous miner and were possibly
present for 4 to 5Ädays prior to the issuance of the citation.
Petitioner also points out that Mr. Orender admitted that
sometimes brows were left by the miners, that he had no knowledge
of any rib rolls, or any ribs being pulled, for a day or two
prior to the day the citation issued, and his admission that it
was difficult to say how long the ribs had been in a loose and
fractured condition. Finally, petitioner points out that while
respondent's representative Gary Sweeney accompanied the
inspectors and viewed the cited conditions, the respondent did
not call him to testify in this case.
In support of its argument for a finding of "low negligence
with considerable mitigating circumstances," respondent maintains
that the violative conditions were constantly being created
because of the inherrent nature of the mine strata, and that it
had effective procedures to deal with such conditions as they
occurred. Respondent maintains that it took a number of steps to
protect its work force and that this should be considered as
mitigating circumstances in determining the appropriate
negligence level.
With regard to the issue of the length of time that the
cited conditions actually existed, respondent relies on the
testimony of State Inspector Hamrick who testified that the
nature of the mine was such that the cited brow and rib
conditions could occur overnight or even between shifts.
Respondent also relies on the testimony of MSHA Inspector Adkins,
who was in the mine on two occasions, within 4 days of the
issuance of the citation, and confirmed that he did not see the
cited conditions and issued no citations.
Inspector Hamrick could not recall the date of his last
visit to the mine prior to the date of the issuance of the
citation on February 14, 1986. Although a copy of one of his
inspection reports, exhibit RÄ2, reflects that he was in the mine
on February 3, 1986, Mr. Hamrick had no independent recollection
of that visit. With regard to the rib and brow conditions cited
by Inspector Coeburn, and detailed in the sketch made by Mr.
Coeburn from his notes, Mr. Hamrick agreed
Page 30
~1746
that the conditions probably existed generally one or two
crosscuts outby the face area. Mr. Hamrick confirmed that he
issued a citation on February 14, 1986, for a violation of state
law for brows and ribs which were not removed or supported.
However, he was not sure whether his citation covered the same
rib and brow conditions cited by Mr. Coeburn, and he explained
that he was not with the Federal inspectors when Mr. Coeburn
issued his citation and did not discuss the conditions with them.
Respondent relies on Mr. Hamrick's testimony concerning its
practices and efforts at controlling and addressing its inherrent
adverse rib and brow conditions to mitigate its negligence. Mr.
Hamrick's unrebutted testimony is that respondent's management
and employees are constantly on the alert for hazardous rib
conditions "pulling them down when they are discovered." Mr.
Hamrick indicated that anytime he was in the mine, overhanging
brows at the face area were always taken down. When asked about
the cited areas outby the face, Mr. Hamrick surmised that the
overhanging brows could have been caused by rib rolls. Conceding
that the brows could have been left by a continuous miner during
a prior mining cycle, Mr. Hamrick nonetheless believed that
respondent's responsible miners would not leave them in that
condition. However, he had no explanation as to why the brow and
rib conditions which he and the MSHA inspector cited were
undetected and left unattended other than his speculation that
they were possibly caused by unexpected rib rolls over a short
period of time.
With regard to the question as to how long the particular
cited brow and rib conditions may have existed prior to the date
of the issuance of the citation, Mr. Hamrick testified that it
was entirely possible that they came about over a short period of
time, even one day. However, he was not sure if he observed all
of the cited conditions, and he conceded that he was not with the
MSHA inspectors when they viewed the conditions and confirmed
that he did not discuss them with the inspectors. He also
conceded that while he observed unsupported brows on the section,
he had no recollection as to how many he may have observed and
confirmed that he did not count them. With regard to the rib and
brow conditions which he cited, Mr. Hamrick had no knowledge as
to how long they may have existed prior to the issuance of the
citation and indicated that they may have been there "hours or
days."
Although I find Mr. Hamrick's testimony with respect to the
respondent's general efforts at addressing and controlling
Page 31
~1747
adverse rib and brow conditions to be credible, and have
considered this as a general mitigating factor, I find it of
little value in determining respondent's negligence level with
respect to the specific cited rib and brow conditions which
formed the basis for the citation issued by Inspector Coeburn on
February 14, 1986. I take note of the fact that while Mr. Hamrick
also issued a citation for possibly the same or similar rib and
brow conditions cited by Mr. Coeburn, Mr. Hamrick made no
negligence findings with respect to his citation, and he
apparently is not required to do so under state law.
With regard to the failure by Inspector Adkins to cite any
violations during his prior mine visits, although petitioner
finds his failure to do so to be inexplicable, it points out that
the issue here is whether the respondent was negligent, not MSHA.
Petitioner takes the position that any failure by Mr. Adkins to
act may not excuse or mitigate the respondent's negligence (Tr.
12). Respondent's counsel took the position that while Mr.
Adkins' prior visits may mitigate its negligence, his prior
presence in the mine, as a factual matter, simply indicates that
had the cited conditions existed when he was there, he would have
issued a citation. Counsel concluded that the reason Mr. Adkins
did not issue a violation during his mine visits is that he did
not observe the conditions, and that his failure to observe them
reflects that they did not exist at that time (Tr. 14).
It is clear that the fact that Inspector Adkins did not cite
any violative conditions during his prior visit to the mine did
not preclude Inspector Coeburn from citing violative conditions
which he personally observed. Midwest Minerals, Inc., 3 FMSHRC
251 (January 1981); Missouri Gravel Co., 3 FMSHRC 1465 (June
1981); Servtex Materials Company, 5 FMSHRC 1359 (July 1983);
BrubakerÄMann Incorporated, 8 FMSHRC 1487 (September 1986). In
other words, the failure by one inspector to issue a citation for
mine conditions which may be later viewed as a violation by
another inspector may not serve as a per se defense to the
violation. However, the failure by Mr. Adkins to issue a
violation when he was in the same section several days earlier
may be considered as an evidentiary factor in any determination
as to whether or not the conditions cited by Mr. Coeburn may have
existed or were left unattended prior to the time Mr. Coeburn
issued his citation on February 14, 1986.
Inspector Adkins testified that he was in the section on
February 10 and 12, 1986, pursuant to an MSHA roof evaluation and
accident prevention program, and he characterized his
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visit as a "walk and talk inspection" with mine personnel for the
purpose discussing safety and accident prevention. His duties
included the observation of miner work habits and work
procedures. He confirmed that he was on the section for
approximately 2 hours on February 10, and that ventilation
curtains were hung throughout the section. He confirmed that he
walked up the No. 3 belt entry, past the belt feeder, went
directly to the working faces by walking up the belt entry, and
spent the majority of his time at the faces. He was sure that on
February 10, the working faces were not as depicted on the map,
exhibit GÄ3, because mining had advanced one or more crosscuts by
February 14th. Although he was certain that he checked the faces
for imminent dangers, he did not observe any of the cited rib or
brow conditions outby the faces because he was not in that area.
However, he conceded that it was possible that he may have walked
by some of the ribs or brows that could have been behind a
curtain, and may not have noticed them while talking to someone.
Mr. Adkins testified further that during his prior visits on
February 10 and 12, 1986, he conducted "safety talks" at the
dinner hole by the power center in the No. 4 entry as shown on
exhibit GÄ3. He was not certain how he would have travelled to
that location, and indicated that it was possible that he walked
up the No. 3 entry and across the crosscut beyond the feeder in
the No. 3 entry and then over to the No. 4 entry. From that
point, he would have proceeded directly to the face area by
walking directly up the No. 4 entry. I take note of the fact that
Inspector Coeburn found no violative rib or brow conditions in
the No. 4 entry near the power center, or in the connecting
crosscut between the No. 3 and No. 4 entries.
After careful review of the testimony of Inspector Adkins, I
am not convinced that he actually travelled all of the areas
where the cited brow and rib conditions were observed by
Inspectors Coeburn and Rines. Mr. Adkins' travels apparently took
him directly to the faces along the No. 3 entry, and along the
No. 4 entry and a crosscut where no brow or rib conditions were
cited. Further, his testimony that line curtains were hung
throughout the section, thereby possibly obstructing his view,
and that he was preoccupied with safety talks and his "walk and
talk" inspection, and the fact that the mining cycle when he was
there did not appear as advanced as it was on the day the
citation was issued, raise doubts in my mind that the then
prevailing mining conditions were the same when Mr. Adkins was in
the section several days prior to the issuance of the citation. I
also doubt that he actually travelled all of the same areas where
the cited rib
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~1749
and brow conditions existed. Under the circumstances, I reject
any notion that the testimony by Mr. Adkins reasonably supports
any conclusion that the cited rib and brow conditions did not
exist during his prior visits to the mine.
With regard to the Rushton decision cited by the respondent,
I take note of the fact that the inspector who Judge Melick
referred to actually issued the violation which was affirmed.
Judge Melick simply found that the failure by the inspector to
previously observe conditions which he characterized as an
"imminent danger" did not support MSHA's proposed finding of
"gross negligence." However, Judge Melick did find that the
operator was negligent for allowing the cited conditions to
exist.
I conclude and find that the cited rib and brow conditions
did not occur overnight, as suggested by the respondent, or
immediately before the issuance of the citation on February 14,
1986. To the contrary, I believe that the testimony of Inspectors
Coeburn and Rines, and Mine Foreman Orender, which I find
credible, supports a conclusion that the cited conditions had
been created by the continuous-mining machine during prior mining
shifts and had existed for at least 2 days, and possibly longer.
I further find and conclude that the failure by the respondent to
observe the loose ribs and overhanging brows and to take
appropriate action to either take them down or support them
resulted from its negligent failure to exercise reasonable care.
I have taken into consideration as general mitigating
circumstances the respondent's past 2Äyear good compliance
record, which includes only four prior violations of the roof
control requirements of section 75.200, and no prior violations
of section 75.202. I have also favorably considered the
respondent's generally good attitude towards safety, and the
steps taken to control the apparent inherent adverse roof
conditions in the mine. However, the fact remains that while the
respondent may have generally given timely attention to hazardous
brow and rib conditions in the mine, I find no credible evidence
to suggest that it did so with respect to the particular brow and
rib conditions observed and cited by the MSHA inspectors. As a
matter of fact, the record here shows that State Inspector
Hamrick issued a citation the same day in the same section for
hazardous rib and brow conditions, and Mine Foreman Orender
admitted that brows were sometimes left unattended in high
locations, that management sometimes would not see all of the
brows, and that at times miners would not pull down loose ribs.
Under all of these circumstances, I find no mitigating
circumstances warranting a finding that the
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~1750
cited conditions resulted from a low or moderate degree of
negligence.
I believe that a reasonable interpretation of section 75.202
would require mine management to insure that loose ribs and
overhanging brows be taken down or supported during the same
working shift if miners are expected to work in those areas, or
at least during the next working or maintenance shift when miners
may be expected to work and may be exposed to the hazardous
conditions. Since I have found that the cited conditions existed
during prior mining cycles in areas where miners would be working
and travelling, it follows that the respondent's failure to
timely address and correct the conditions before they were found
by the inspectors supports Inspector Coeburn's finding of "high
negligence." Accordingly, that finding IS AFFIRMED.
Petitioner's posthearing assertion that the violation
resulted from the respondent's "unwarrantable failure" to comply
with the requirements of the cited standard IS REJECTED. This is
not a viable issue in a civil penalty proceeding. See MSHA v.
Black Diamond Coal Mining Company, 7 FMSHRC 1117 (August 1985);
MSHA v. Brown Brothers Sand Company, 9 FMSHRC 636 (March 1987).
In any event, I find no credible testimony or evidence to support
a finding of willful intent or reckless disregard for the
requirements of the cited safety standard.
Civil Penalty Assessment
During his opening remarks at the hearing, with respect to
his suggested $2,000 civil penalty assessment in this case,
petitioner's counsel asserted that MSHA's Office of Assessments
was not aware "of the significance and the dangers and the number
of violations that actually were written up in the one violation.
I believe the violations were more serious and more negligent
than the assessment office apparently believed" (Tr. 13). During
closing arguments, and in further support of his request for a
$2,000 civil penalty assessment, counsel cited three decisions
concerning rib and brow violations in which substantial penalties
were levied by Commission judges, Westmoreland Coal Company, 7
FMSHRC 1338 (September 1985); Valley Camp Coal Company, 7 FMSHRC
138 (January 1985), Jim Walter Resources, Inc., 7 FMSHRC 263
(February 1985) (Tr. 208Ä210).
Westmoreland Coal involved an overhanging rib condition
which resulted in fatal injuries to a scoop operator. The
presiding judge found that the violation was the result of an
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~1751
"unwarrantable failure" to comply with section 75.202, because of
a section foreman's knowledge of the violative condition and his
failure to take corrective action through indifference or lack of
reasonable care. The Commission reversed, and found that the
overwhelming weight of the evidence established that repeated
efforts to remove the overhanging rib, coupled with the good
faith belief on the part of miners and others during their
attempts to bar down the rib and that no hazard existed, could
not support a finding that the foreman's action in allowing work
to proceed represented the degree of aggravated conduct intended
to constitute an unwarrantable failure under the Act.
Valley Camp involved an overhanging rock brow that fell and
killed a roof bolter. The judge found a violation of section
75.202, and affirmed a section 104(d)(2) unwarrantable failure
withdrawal order, and he did so on the basis of evidence which
established that a section foreman was aware that the roof had
fallen in the accident area immediately prior to the brow fall
which killed the bolter, but did not take the time to thoroughly
evaluate the residual roof conditions, and allowed production to
resume without first examining the work place to determine
whether any hazards remained. Further, mine management had a
policy which allowed overhanging brows to remain in work areas as
long as they were no more than 2 feet thick. Given these
circumstances, the judge found that the violation resulted from
"gross negligence," an "unwarrantable failure" constituting
indifference, willful intent, or a serious lack of reasonable
care.
Jim Walter Resources involved a violation of section 75.202,
because of loose hanging roof conditions, broken roof bolt plates
which allowed loose roof to fall out between the broken roof
bolts, roof stress requiring additional roof bolting which was
not done, and cracks between roof bolts in various places. The
judge found that the conditions had existed for a "substantial
period" before the inspection, but his decision contains no
discussion of the fact used to support that conclusion. The judge
found that the violation was "unwarrantable" because the operator
"knew, or with the exercise of reasonable care should have known,
of the hazardous roof conditions."
Aside from the fact that I am not bound by the prior judge's
decisions cited by counsel, I take particular note of the fact
that those decisions were based on the facts there presented. In
each instance, the judge made his factual findings on the basis
of credible evidence indicating egregious situations where the
mine operator's failure to act was the
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~1752
result of either gross negligence, indifference, or willful
intent which directly resulted in fatalities in two of the cases.
I find no such circumstances present in the case at hand.
With regard to counsel's conclusions concerning MSHA's
assessment office evaluation of the negligence and gravity
connected with the violation, my review of the "Narrative
Findings" supporting the "special" civil penalty assessment of
$850, which is a part of the pleadings, reflects a detailed
analysis as to the cited conditions, their locations, the
particular hazards presented by the conditions, and the
respondent's negligence. Under the circumstances, I disagree with
counsel's unsupported conclusions, and find that the assessment
office adequately evaluated the facts and circumstances presented
by the violation. Under the circumstances, I conclude and find
that the proposed civil penalty assessment of $850 is reasonable
and appropriate for the violation which has been affirmed.
ORDER
Respondent IS ORDERED to pay a civil penalty assessment in
the amount of $850 for the violation in question, and payment is
to be made to MSHA within thirty (30) days of the date of this
decision. Upon receipt of payment, this proceeding is dismissed.
George A. Koutras
Administrative Law Judge
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