Roger Deel, employed by Blackfoot Coal Company, Inc.

Plain-English summary

MSHA charged Roger Deel, a section foreman at Blackfoot Coal Company's No. 1 Mine, with knowingly violating the mine's roof-control requirements. The judge found that Deel followed a management practice of mining from left to right even though the roof-control plan required mining from right to left, and that the practice contributed to a roof fall that permanently injured another miner. Judge William Fauver found a violation of 30 C.F.R. § 75.220 but reduced the proposed $700 penalty to $50 because the government had not shown evenhanded enforcement against mine management and other foremen following the same practice. The order required Deel to pay $50 within 30 days.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220
• Outcome: The violation was found, and the proposed $700 penalty was reduced to $50.
• Key point: The ALJ found knowing conduct but substantially reduced the penalty based on unequal enforcement.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ROGER DEEL
DDATE:
19900919
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. VA 90-14
PETITIONER A.C. No. 44-05415-03558-A

       v.                              No. 1 Mine

ROGER DEEL, EMPLOYED BY
BLACKFOOT COAL COMPANY, INC.,
RESPONDENT

                        DECISION

Appearances: J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Mr. Roger Deal, McClure, Virginia, pro se, for the
Respondent.

Before: Judge Fauver

 The Secretary brought this civil penalty action against a

mine foreman, charging that he knowingly violated a safety
standard, under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq.

 After a hearing on the merits, a bench decision was issued

on August 16, 1990. This decision supplements and confirms the
bench decision.

                    FINDINGS OF FACT

 1. At all relevant times, Respondent, Roger Deel, was

employed as a section foreman, on the second shift, at the No. 1
Mine of Blackfoot Coal Company, Inc., in Dickenson County,
Virginia.

 2. Despite a requirement of the roof-control plan to mine

from right to left in retreat mining, mine management had a
policy of mining from left to right. This practice saved

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production time, by avoiding the tramming of the continuousmining
machine back to the right side of the line of cuts when the left
end was reached. However, it was a dangerous practice and
violated the roof-control plan.

 3. Mr. Deel and other foreman followed this violative

practice knowing that it violated the roof-control plan. On
November 14, 1988, the continuous-miner operator, Richard Turner,
was acting foreman on the first shift. He followed the same
practice of mining from left to right, in extracting pillars,
instead of complying with the roof-control plan. He had prior
experience as a full-time foreman, and knew that the plan
required him to mine from right to left. While he was operating
the continuous miner, at about 11:00 a.m., a roof fall began in
the gob area and moved to his immediate site, covering his mining
machine with fallen rock. He was trapped in the machine until
rescuers could reach him, about 3:25 p.m. Mr. Turner suffered
permanent back injuries.

 4. Respondent Deel had followed the same violative practice

on the production day previous to Mr. Turner's accident. Another
foreman, Brock, also had followed the same violative practice
previous to Mr. Turner's accident.

             DISCUSSION WITH FURTHER FINDINGS

 Mine management had a policy or practice of ignoring the

roof-control plan requirement to mine from right to left in
extracting pillars. The foremen and acting foreman Turner
followed this practice, including the Respondent, Roger Deel.

 Mr. Deel "knowingly" violated the roof-control standard (and

therefore 30 C.F.R. 75.220) within the meaning of section
110(c) of the Act, which provides:

      (c) Whenever a corporate operator violates a mandatory
      health or safety standard or knowingly violates or
      fails or refuses to comply with any order issued under
      this Act or any order incorporated in a final decision
      issued under this Act, except an order incorporated in
      a decision issued under subsection (a) or section
      105(c), any director, officer, or agent of such
      corporation who knowingly authorized, ordered, or
      carried out such violation, failure, or refusal shall
      be subject to the same civil penalties, fines, and
      imprisonment that may be imposed upon a person under
      subsections (a) and (d).

 It is no defense that Mr. Deel was following management

policy or orders in violating the roof-control plan. The Act, in
section 105(c), protects a miner, including supervisors, who
refuse to carry out a work assignment or practice that is in

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violation of a safety standard or is reasonably believed to be
hazardous. The violation was serious, because it compromised roof
control and increased the risk of a roof fall.

 However, the government has singled out Mr. Deel, without

charging other foremen who were following the same violative
practice, and without charging mine management who were
responsible for this violative practice and had a clear duty to
prevent it. This approach to law enforcement does not meet the
standard of fair and evenhanded justice that the public is
entitled to expect from a government agency.

 I find that Mr. Deel knowingly violated the cited safety

standard, but that his penalty should be substantially reduced
from the amount proposed by the Secretary ($700), because the
government has not shown evenhanded enforcement toward mine
management and the other foremen.

 Considering this factor and the criteria for civil penalties

in section 110(i) of the Act, I find that a civil penalty of $50
is appropriate for this violation.

                   CONCLUSION OF LAW

 1. The judge has jurisdiction over this proceeding.

 2. Respondent, Roger Deel, violated 30 C.F.R.   75.220 as

charged in the Petition for Proposed Assessment of Civil Penalty.

                           ORDER

 WHEREFORE, IT IS ORDERED that Respondent, Roger Deel, shall

pay a civil penalty of $50 within 30 days of the date of this
decision.

                              William Fauver
                              Administrative Law Judge