Cyprus Empire Corporation

Plain-English summary

MSHA found loose and broken roof in the tailgate entry of Cyprus Empire Corporation's Eagle No. 5 underground coal mine and issued an imminent-danger order and a citation. Judge John J. Morris found that the roof condition could cause serious injury or death, but the area had been dangered off and no miners entered it. He dismissed the operator's contests of the order and citation, affirmed the citation in the related civil-penalty case, and assessed a $200 penalty after finding low negligence. The later Commission decision in the official index reviewed this case.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 75.202(a) and § 75.202(b); 30 U.S.C. § 820(i).
• Outcome: The two contests were dismissed, the related citation was affirmed, and a $200 penalty was assessed.
• Key point: Danger tape and the absence of miner exposure reduced negligence, but did not eliminate the roof hazard or the penalty proceeding.

Full text (FMSHRC public release)

CCASE:
CYPRUS EMPIRE V. SOL (MSHA)
DDATE:
19890320
TTEXT:

~368
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

CYPRUS EMPIRE CORPORATION, CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEST 88-250-R
v. Order No. 3225480; 5/24/88

SECRETARY OF LABOR, Docket No. WEST 88-251-R
MINE SAFETY AND HEALTH Citation No. 3225501; 5/24/88
ADMINISTRATION (MSHA),
RESPONDENT Eagle No. 5 Mine
Mine ID 05-01370

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-331
PETITIONER A.C. No. 05-01370-03578

           v.                        Eagle No. 5 Mine

CYPRUS EMPIRE CORPORATION,
RESPONDENT

                          DECISION

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, Pennsylvania,
for Contestant/Respondent;
Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent/Petitioner.

Before: Judge Morris

 These consolidated cases are before me under Section 105(d)

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
801 et seq., (the "Act"), to challenge the issuance by the
Secretary of Labor of an order and a citation charging Cyprus
Empire Corporation ("Empire"), with a violation of the regulatory
standard published at 30 C.F.R. 75.202(a).(FOOTNOTE 1)

 After notice to the parties a hearing on the merits was held

on November 21, 1988, in Denver, Colorado. The parties filed
post-trial briefs.

~369
Summary of the Cases

 Order No. 3225480, contested in WEST 88-250-R, states as

follows:

      Loose, broken roof was present in the tailgate entry of
      the 16 East longwall working section. The loose, broken
      roof (coal roof) was 6 feet in length and 6 feet 10
      inches in width. The affected area was between two
      wooden cribs installed within 3 feet of the tailgate
      face shield (No. 126). A violation of 75.202(b).(FOOTNOTE 2)
      The operator had already dangered off the tailgate
      entry at the longwall face.

 Citation No. 3225501, contested in WEST 88-251, states as

follows:

      Loose, broken roof was present in the tailgate entry of
      the 16 East longwall section. The coal roof between two
      previously erected wooden cribs was broken and some
      roof had fallen to the mine floor. Two previously
      installed resin grouted rods with bearing plates were
      protruding downward about 16 inches. The roof coal had
      fallen from around the rods and the bearing plates. The
      affected area was 6 feet in length and 6 feet 10 inches
      in width.

~370
This condition was one of the factors that contributed to the
issuance of Imminent Danger Order No. 3225480 dated 05-24-88;
therefore, no abatement time was set.(FOOTNOTE 3)

                         Stipulation

   The parties have stipulated as follows:

 One: the Eagle No. 5 Mine is owned and operated by Cyprus

Empire Corporation.

 Two: the Administrative Law Judge has jurisdiction over

these proceedings; further, Cyprus Empire Corporation and the
Eagle No. 5 Mine are subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977.

 Three: the annual production of the Eagle No. 5 Mine is

approximately 1.7 million tons. The operator is properly
described as a large operator.

 Four: the authenticity of the exhibits offered in hearing is

stipulated, but no stipulation is made as to the facts asserted
in such exhibits.

 Five: the subject order and citations, modifications thereto

and terminations were properly served by a duly authorized
representative of the Secretary of Labor upon agents of Cyprus
Empire Corporation on the date or dates stated therein, and may
be admitted into evidence for the purposes of establishing their
issuance and not the truthfulness or relevancy of any statement
asserted therein.

 Six: the history of violations in the 24 months preceding

the subject order and citation was 74 violations in 320 inspector
days. The parties have agreed that this constitutes a good
history.

 Seven: the imposition of a penalty by the Administrative Law

Judge will not affect Cyprus Empire Corporation's ability to
continue in business. Cyprus Empire does not stipulate to the
appropriateness of the imposition of any penalty.

~371
Eight: the longwall retreated 16 and one half feet between the
time the area was dangered off on May 20th and May 24th, the date
the inspector issued his order.

 Nine: Various dates are involved in these cases. The

pertinent week days are as follows:

           May 20, a Friday
           May 21, a Saturday
           May 22, a Sunday
           May 23, a Monday
           May 24, a Tuesday

                 Summary of the Evidence

 This litigation arose when Phillip R. Gibson, an MSHA

inspector experienced in mining, inspected Empire's Eagle No. 5
coal mine. At the tailgate end of the 16 East longwall section he
observed a yellow ribbon in place as a danger sign. As he closely
observed the nearby roof he saw the condition he later described
in the order and citation.

 He saw the roof was broken and unstable. Coal had fallen

from it around two previously installed resin-grouted roof bolts.
The bearing plates were about 16" below the roof line.

 There were two wooden cribs along the longwall face. The

space between the two wooden cribs measured 6' x 6' 10" .
The cribs had been placed about 3' from the last face shield
(Shield No. 126) (Tr. 30, 31).

 The travelway along the face of the 16 East longwall would

exit into this exposed area (Tr. 30-32; Joint Ex. 1).

 Even though the operator had placed a danger tape across the

walkway, the inspector nevertheless felt the condition involved
imminent danger and a violation of the regulation.

 The roof appeared to be so unstable that it could fall at

any time. If it fell it could cause serious physical harm, or
even death (Tr. 30-32; Ex. G-9).

 The area cited by the inspector is an area where miners

would normally work or travel. But no miner was observed entering
the dangered off area (Tr. 33).

~372
The inspector went to the surface, called his superior and
discussed what action should be taken. They concurred that the
best approach would be to allow mining to continue. He then
modified the citation so as to permit the mining cycle to resume.
The mining progressed beyond the loose broken roof to where
wooden cribs contained the roof (Ex. G-2, G-3).

 Empire's witnesses Pobirk, Moss and Cario testified for the

operator.

 ROBERT POBIRK, in charge of the shift, is experienced in

mining and longwall equipment (Tr. 80-87).

 On May 20th the foreman learned the mine roof had

deteriorated. Upon observing the condition he was not worried
about a roof fall; rather, he was concerned about heaving in the
area. He considered his options and added two cribs, a roof jack
and two timbers. However, he did not support the 6' x
6' 10" area in the roof because it was heaving and rolling. He
felt it was too dangerous to support the 6' x 6' 10" area.
He would only support that area "as a last resort" (Tr. 88, 99).

 Pobirk also instructed that the area be dangered off between

the walkway and the bad top. In addition, the fire boss put
danger tape considerably outby the hazard.

 The bad top extended on the tailgate side and it was within

eight to ten feet of the shield.

 On the 24th (Tuesday) the roof and 6'   x 6' 10"    area

was not in immediate danger of collapsing. On the 25th
(Wednesday) the supplemental supports were adequate.

 CHARLES J. MOSS, section foreman and a person experienced in

mining, was responsible for installing the cribbing.

 On May 20th Moss observed the cracks and squeezing and also

saw that extra supports were necessary. He did not support the
6' x 6' 10" area because it would expose a miner to the
hazardous condition of the roof. Moss put up the yellow ribbon
from rail to rail on the walkway.

 In the longwall section over Monday (May 23) and Tuesday

(May 24) the roof got worse but Moss didn't recall any roof
falling down. On Tuesday night Moss scaled down the area.

~373
In Moss' view the best way to handle the 6' x 6' 10" area
was to mine past it. This was done.

 SAMUEL L. CARIO, Empire's longwall coordinator, inspected

the longwall on the 20th and concurred in the views of Pobirk and
Moss. Further, the operator's roof supports in this area exceeded
the requirements of its roof control plan (Tr. 119-123).

                       Discussion

 These cases involve longwall mining issues with a focus on

the 107(a) withdrawal order and the roof control regulations.
Specifically, the issues concern whether the withdrawal order was
appropriate; further, was the order based on a condition of
imminent danger and, finally, did the Secretary establish a
violation of 30 C.F.R. 75.202(a).

 The withdrawal order in contest here was issued by virtue of

Section 107(a), 30 U.S.C. 817(a), which provides as follows:

      If, upon any inspection or investigation of a coal or
      other mine, which is subject to this Act, an authorized
      representative of the Secretary finds that an imminent
      danger exists, such representative shall determine the
      extent of the area of such mine throughout which the
      danger exists, and issue an order requiring the
      operator of such mine to cause all persons, except
      those referred to in section 104(c), to be withdrawn
      from, and to be prohibited from entering, such area
      until an authorized representative of the Secretary
      determines that such imminent danger and the conditions
      or practices which caused such imminent danger no
      longer exist. The issuance of an order under this
      subsection shall not preclude the issuance of a
      citation under section 104 or the proposing of a
      penalty under section 110.

 The term "imminent danger" is found in the Federal Coal Mine

Health and Safety Act of 1969 and amendments to the 1977 Act. The
term means:

~374
(T)he existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated. 30
U.S.C. 802(j).

 Historically, the first tests for determining whether an

imminent danger exists were set forth in Freeman Coal Mining
Corp., 2 IBMA 197, 212 (1973), and Eastern Associated Coal Corp.,
2 IBMA 128, 80 I.D. 400 (1973), aff'd, Eastern Associated Coal
Corp. v. Interior Board of Mine Operations Appeals et al, 491
F.2d 277 (4th Cir. 1974). In Eastern the Board of Mine Operations
Appeals, formerly a division of the Interior Department's Office
of Hearings and Appeals, herein "BMOA", held that:

      . . . an imminent danger exists when the condition or
      practice observed could reasonably be expected to cause
      death or serious physical harm to a miner if normal
      mining operations were permitted to proceed in the
      affected area before the dangerous condition is
      eliminated; thus, the dangerous condition cannot be
      divorced from the normal work activity. 2 IBMA at 129.

 In Freeman the BMOA elaborated on its decision in Eastern

and held that the word "reasonably" as used in the definition of
imminent danger necessarily means that the test of imminence is
objective and that the inspector's subjective opinion is not
necessarily to be taken at face value. The Board also gave this
test of "imminent danger":

      . . . would a reasonable man, given a qualified
      inspector's education and experience, conclude that the
      facts indicate an impending accident or disaster,
      threatening to kill or to cause serious physical harm,
      likely to occur at any moment, but not necessarily
      immediately? The uncertainty must be of a nature that
      would induce a reasonable man to estimate that, if
      normal operations designed to extract coal in the
      disputed area proceeded, it is at least just as
      probable as not that the feared accident or disaster
      would occur before elimination of the danger. (Emphasis
      added) 2 IBMA at 212.

~375
The United States Court of Appeals for the 7th Circuit in Freeman
Coal Mining Company v. Interior Board of Mine Operations Appeals,
et al., 504 F.2d 741 (1974), while quoting BMOA's definition of
"imminent danger," went on to add its own:

      An imminent threat is one which does not necessarily
      come to fruition but the reasonable likelihood that it
      may, particularly when the result could well be
      disastrous, is sufficient to make the impending threat
      virtually an immediate one. (Emphasis added) 504 F.2d
      at 745.

 The Commission, in Pittsburg & Midway Coal Mining Company v.

Secretary of Labor, 2 FMSHRC 787 (1980), also set a course for
approaching imminent danger questions:

      . . . we note that whether the question of imminent
      danger is decided with the "as probable as not" gloss
      upon the language of section 3(j), or with the language
      of section 3(j) alone, the outcome here would be the
      same. We therefore need not, and do not, adopt or in
      any way approve the "as probable as not" standard that
      the judge applied. With respect to cases that arise
      under the Federal Mine Safety and Health Act of 1977,
      30 U.S.C.   801, et seq., we will examine anew the
      question of what conditions or practices constitute an
      imminent danger. (Emphasis added) 2 FMSHRC at 788.

 In the enactment of the 1977 Act, the Senate Committee on

Human Resources stated as follows:

      The Committee disavows any notion that imminent danger
      can be defined in terms of a percentage of probability
      that an accident will happen; rather the concept of
      imminent danger requires an examination of the
      potential of the risk to cause serious physical harm at
      any time.

~376
It is the Committee's view that the authority under this section
is essential to the protection of miners and should be construed
expansively by inspectors and the Commission. S. Rep. No. 95-181,
95th Cong., 1st Sess. _ (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 626 (1978).

 The facts in this case establish MSHA Inspector Gibson

observed that a 6' x 6' 10" area of the roof was broken
and unstable; coal had fallen from two roof bolts (Tr. 30). The
roof in this area was slanted downward and fractured. Any size
piece of coal could fall out of the area.(FOOTNOTE 4) The bad roof was
between two ribs and two roof bolts (Tr. 45).

 The inspector expressed the credible opinion that the roof

condition was imminently dangerous if a miner was exposed to it
(Tr. 31).

 Empire's witnesses did not fully embrace the inspector's

opinion concerning imminent danger but their actions do. When
Pobirk, the foreman, observed the roof on the 20th (four days
before the inspector)(FOOTNOTE 5) he was concerned about the heaving. He
then installed two cribs together with roof jacks and two timbers
(Tr. 88-90). He also had the area between the walkway and the bad
top dangered off with tape (Tr. 92). Pobirk also concluded no
additional support should be put in the 6' x 6' 10" area
because that area was heaving. It was too hazardous to support
the area (Tr. 94, 99).

~377
As provided by the Mine Act and the case law, the expectancy of
death or serious injury to a miner is necessary to support a
condition of imminent danger. Such an expectancy existed here:
Inspector Gibson testified the longwall was operating normally
(Tr. 33). In addition, under normal circumstances, the tailgate
end of the longwall would allow a miner to come directly off of
the longwall into the return entry. In addition, as Inspector
Gibson testified, the danger ribbon neither supports the roof nor
takes it down (Tr. 35).

 The Solicitor admits that no miner walked under the area of

the bad roof and no one went through the area while it was
dangered off (Tr. 11, 12). However, actual exposure to a miner to
the hazardous condition is not required to find that a condition
of imminent danger exists.

 Empire contends that   75.202(a) limits its scope to "areas

where persons work or travel." Therefore, the order must be
vacated because entry into the area was prohibited by the
installation of the danger tape. I disagree. The purpose of a
107(a) order is not only to cause the withdrawal of miners, but
to insure that they remain out of the affected area until the
condition is corrected. Further, it is clear that there were
miners in the vicinity of the defective roof. The Valley Camp
Coal Company, 1 IBMA 243, 248 (1972); Rio Algom Corporation, 2
FMSHRC 187 (1980).

 Empire further argues its interpretation of the regulation

is correct, otherwise a violation of the standard would exist
every time roof is exposed and not immediately supported.
Specifically, Empire cites 30 C.F.R. 75.208 and 30 C.F.R.
75.222(e) to support its position that the regulations
contemplate the existence of unsupported roof.

 I concur the regulations contemplate the existence of

unsupported roof. However, such unsupported roof cannot be
located where a miner could come directly off the longwall into
the return entry which is the situation here.

 In support of its view Empire cites Beth Energy, Inc., 10

FMSHRC 804, 808 (1988) (Melick, J); Cambridge Mining Corporation,
1 FMSHRC 987 (1979) (Commission), and Helen Mining Co., 6 FMSHRC
529 (1984) (Koutras, J).

 The cases relied on by Empire are not inapposite the views

expressed herein. In Beth Energy Judge Melick found that a mine
examiner traveled a weaving course between three entries to avoid
the bad roof.

~378
In Cambridge the Commission affirmed a violation of 30 C.F.R.
75.200. Cambridge does not control the factual situation here. As
the Commission noted the operator "had made the decision to have
the men work in another entry until this [roof support] was
done", 1 FMSHRC at 987.

 Helen Mining is not controlling. Judge Koutras observed the

pertinent prohibition of the regulation was that "no person shall
proceed beyond the last permanent support unless adequate
temporary support is provided," 6 FMSHRC at 567. In short, Judge
Koutras' decision involved a regulation that was similar to the
present 75.202(b). The Secretary's evidence in the instant case
does not support a violation of 75.202(b). In short, subpart
(a) is broader in scope than (b) as it encompasses hazardous
areas which might endanger miners in the immediate vicinity.

 The final principal issue concerns whether Empire violated

the roof control regulation, 30 C.F.R. 75.202(a).

 The present regulation was adopted January 27, 1988. The

regulation, in its relevant part, provides that where hazards
exist the "roof . . . shall be supported or otherwise controlled
. . . . "

 Historically, it appears that taking down loose roof by

barring it down constitutes a form of control as contemplated by
the current regulation. In this case section foreman Charles Moss
scaled down the area on Tuesday night. His scaling down efforts
were done from the end of the walkway (Tr. 112). However, I am
unable to conclude that Moss' efforts at scaling down the roof
constituted compliance with the regulations. Specifically, Moss'
attempt was on Tuesday night and it is not established if his
activities were before or after the MSHA order was issued.
Further, there is no evidence in the record as to what, if
anything, the scaling down effort accomplished. Scaling down
could not constitute compliance unless it was effective. The key
ingredient of effectiveness is not shown in this case.

 Finally, in construing   75.202(a), what interpretation

should be placed on the words that the roof must be "supported or
otherwise controlled."

 The Secretary argues that "otherwise controlled" is

alternative language to "supported" and must constitute some form
of physical restraint of the roof (Brief 11, 12). On the other
hand Empire argues that barring down, the installation of yellow
danger tape and continued mining beyond the defective roof
constituted "control" within the meaning of 75.202(a).

~379
In considering these issues I conclude that compliance with
75.202(a) can be accomplished in several ways. Initially, as the
regulation provides, the area can be supported. In the
alternative, the area may be barred down. The alternative of
barring down a defective area is contained in the statute and it
has been a control historically used. If support and barring down
are not effective (the situation here) then the regulation
requires effective control. I agree with the Secretary's view
that some form of physical restraint of the defective area is
required.

 There is no evidence in the instant case whether the

longwall equipment itself constituted an effective form of
physical restraint of the defective roof and thus was a "control"
within the meaning of 75.202(a).

 Empire further objects to the Secretary's amendment of her

order and citation so as to allege a violation of 75.202(a) in
lieu of 75.202(b). Empire observes that the citation was issued
on May 24, 1988. A month before the hearing the Solicitor
verbally advised Empire's counsel he was considering asking leave
to allege a violation of Section 75.202(a) (Tr. 12, 13). The
modification was accomplished the morning of the hearing (Tr. 10,
11).

 Empire's objections are without merit. Only the legal theory

was changed, not the facts as alleged by the Secretary. Further,
I agree with Empire that it cannot readily argue that the
modification resulted in surprise (Tr. 13). In the absence of
surprise, I reaffirm the ruling made at the hearing.

 The cases cited by Empire in opposing the Secretary's

amendment are not inapposite the views expressed herein. A ruling
concerning amendments to the pleadings is largely discretionary.
See Rule 15(a), Fed. R. Civ. P.

 For the foregoing reasons the imminent danger order and the

citation should be affirmed.

                      Civil Penalty

 The statutory criteria to assess civil penalties is

contained in Section 110(i) of the Act, 30 U.S.C. 820(i).

~380
The stipulation indicates the operator has a favorable history of
prior violations; further, the proposed penalty is appropriate
since it will not affect the ability of this large operator to
continue in business. The gravity of the violation is high since
death or serious injury could occur if a miner was struck by the
defective roof. The Secretary overestimated the operator's
negligence but I conclude it was low since the area was dangered
off and no miners entered the area. The operator is to be
credited with statutory good faith in abating the order even
though it was by continuing the mining cycle. On balance, a civil
penalty of $200 is appropriate.

   For the foregoing reasons, I enter the following:

                           ORDER

 1. In WEST 88-250-R: the contest of Order No. 3225480 is

dismissed.

 2. In WEST 88-251-R: the contest of Citation No. 3225501 is

dismissed.

 3. In WEST 88-331 Citation No. 3225501 is affirmed and a

civil penalty of $200 is assessed.

                              John J. Morris
                              Administrative Law Judge

FOOTNOTES START HERE
~FOOTNOTE_ONE
1. WEST 88-250-R is the contest of Order No. 3225480; WEST
88-151-R is the contest of the subsequent Citation No. 3225501;
WEST 88-331 is the civil penalty proceeding.

~FOOTNOTE_TWO
2. At the commencement of the hearing, on the Secretary's
motion, the order and citation were amended to allege a violation
of 30 C.F.R. 75.202(a).

        Subparts (a) and (b) of   75.202 provide as follows:
          75.202 Protection from falls of roof, face and ribs.
        (a) The roof, face and ribs of areas where persons work

or travel shall be supported or otherwise controlled to protect
persons from hazards related to falls of the roof, face or ribs
and coal or rock bursts.

      (b) No person shall work or travel under unsupported

roof unless in accordance with this subpart.

~FOOTNOTE_THREE
3. Order No. 3225480 and Citation No. 3225501 recite
slightly different facts but it is agreed that both refer to the
identical area.

~FOOTNOTE_FOUR

 4. On Friday, May 20th, a different portion of the roof

collapsed and the tailgate of the longwall was impassible (Tr.
37, 46, 47; Ex. G-6, G-7). However, the Solicitor disavows that
these cases involve a blocked tailgate as prohibited in 75.215
(Tr. 24, 25).

~FOOTNOTE_FIVE
5. The inspector at one time indicated the 6' x
6' 10" area of the roof could have been supported on the 20th
but not when he issued his order four days later. However, no
evidence supports that contention and I reject it. On the 20th I
conclude the roof was as described by witness Pobirk.