Secretary of Labor v. C.W. Mining Company

Plain-English summary

C.W. Mining operated the Bear Canyon No. 1 underground coal mine in Utah. MSHA cited the company for operating without an approved roof control plan after revoking an older plan that allowed longer roof-bolting intervals and a different pillar-extraction sequence. The Commission held that MSHA properly required a plan suited to the mine's changing adverse roof conditions, that the consultation process was conducted in good faith, and that the revised 20-foot bolting cycle and pillar-extraction provisions were suitable. The Commission affirmed the ALJ's decision and the citation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.220(a)(1), 75.202(a), 75.222(a), 75.207, 75.223(a)(1), and 75.223(d); 30 U.S.C. § 862(a)
• Outcome: The Commission affirmed the ALJ's decision and the citation for operating without an approved roof control plan.
• Key point: MSHA may require plan provisions addressing specific changing mine conditions, even when those conditions are not unique to one mine, after good-faith consultation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

                                        October 7, 1996

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEST 92-204
:
C.W. MINING COMPANY :

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1

                                           DECISION

BY THE COMMISSION:

    This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977,

30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”). At issue is a citation issued by the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) alleging that C.W.
Mining Company (“CW”) violated 30 C.F.R. § 75.220(a)(1) by operating its mine without an
approved roof control plan.2 Concluding that CW’s old roof control plan was no longer suitable
for the mine and that the plan proposed by MSHA was suitable, Administrative Law Judge
August Cetti affirmed the citation. 15 FMSHRC 1559 (June 1993) (ALJ). The Commission
granted CW’s petition for discretionary review (“PDR”). For the reasons that follow, we affirm
the judge.

   1
     Commissioner Holen participated in the consideration of this matter, but her term

expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2
Section 75.220(a)(1) states:

            Each mine operator shall develop and follow a roof control plan,
            approved by the District Manager, that is suitable to the prevailing
            geological conditions, and the mining system to be used at the mine.
            Additional measures shall be taken to protect persons if unusual
            hazards are encountered.

Page 2

                                                  I.

                               Factual and Procedural Background

    A.       The Old and New Roof Control Plan Provisions

   CW operates the Bear Canyon No. 1 Mine, an underground coal mine in Huntington,

Utah. 15 FMSHRC at 1561. MSHA’s District 9 Office revoked CW’s “old” roof control plan
because CW refused to adopt changes in provisions addressing (1) the distance CW could mine
before permanent roof bolts were to be installed (“roof bolting development cycle”) and (2) the
manner and sequence of pillar extraction. See PDR at 3-4; S. Br. at 8.

    The old plan provided:

             Where the roof is strong and competent, the faces of the entries,
             rooms, plus crosscuts, can be advanced 120 feet prior to installing
             permanent roof supports.

Gov’t Ex. 2, at 5, Item 3. CW customarily advanced 120 feet before roof bolting where top coal
was sufficient, in its view, to provide temporary roof support. On review of the old plan, MSHA
took the position that roof support and control required roof bolting every 20 feet. Gov’t Ex.
35A at 6; 15 FMSHRC at 1561. The 20-foot benchmark was based on the maximum distance
CW’s continuous mining machines are able to cut with the operator of the machine still under
supported roof. Id. at 1562, 1569. Under MSHA’s approach, CW could no longer rely on top
coal as temporary roof support.

    In addition, the old plan provided that, when recovering coal by pillar extraction, CW

could split the pillar without roof bolting when adequate top coal was present. Gov’t Ex. 2 at 23;
Gov’t Ex. 32; Tr. 1005-06.3 Splitting the pillar was the first step in the sequence of cuts and
divided the pillar into two blocks. Gov’t Ex. 2, at 23; Gov’t Ex. 32. The blocks were then mined
as follows: CW would take a cut or “lift”4 in the middle of the block that was nearer the gob
(cutting perpendicular to the split); then it would cut the inby part of that block; next it would cut
the outby part of that block. Id. A similar pattern of cuts would take place on the other block.
Id. Under the new plan, MSHA took the position that splitting the pillar would be done in 20
foot cuts followed by roof bolting after each cut. Gov’t Ex. 33; Tr. 339-40, 593-94. The
sequence of cuts into the blocks began inby and continued outby. Gov’t Exs. 33, 35A at 16.

    3
     To “split” the pillar means to mine through it, dividing it in half. Tr. 32-33, 418. See

also Bureau of Mines, U.S. Department of the Interior, Dictionary of Mining, Minerals and
Related Terms (“DMMRT”) at 1056 (1968) (“To divide a pillar . . . by driving through it”).
4
A “lift” is “[a] slice taken off a pillar . . . . The extraction of a coal pillar in lifts or
slices.” DMMRT at 640.

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Page 3

   B.       History of Discussions of the Plan Provisions

    On June 29, 1991, CW sent the MSHA District Manager its roof control plan (the “old”

plan) for review. 15 FMSHRC at 1562. The plan had last been approved March 5, 1990. Id.
CW stated that it did not feel any changes were needed. Id.

    On August 9, MSHA responded by letter that the plan was inadequate. Id. The letter

listed 30 “necessary” changes in the pillar section of the roof control plan and 10 “necessary”
changes in the plan’s development section. Id. MSHA indicated that the old plan provisions
concerning roof bolting during roof development did not comply with 30 C.F.R. § 75.202(a) and
“[m]ust be revised.”5 Gov’t Ex. 3, at 4. As to pillar removal, MSHA stated that mining an inby
block after taking a lift out of the middle of the pillar was a faulty practice and that it was
necessary to use a conventional support plan or otherwise develop full overhead support. Gov’t
Ex. 3, at 4, Items 28, 29, citing Item 6, at 2. MSHA requested CW to submit a new plan by
August 26, 1991, addressing MSHA’s concerns. 15 FMSHRC at 1562-63.

    On August 22, CW sent a letter to MSHA stating that the roof control systems set forth in

the plan submitted for review had been used at the mine for 30 years and there had been no
uncontrolled roof falls during that time. Id. at 1563. CW asked that the plan be approved with no
change and did not otherwise respond to MSHA’s 40 concerns. Id.

    By letter dated September 9, MSHA requested that CW respond to and comply with

MSHA’s August 9 letter. Id. The letter informed CW that, if an acceptable plan was not received
by the due date, September 30, 1991, the existing plan “may be rescinded” and any further mining
under that plan would result in a citation charging a violation of section 75.220. Id.

     On September 24, a meeting between representatives of CW and MSHA was held in

Price, Utah. Id. Among those attending the meeting were MSHA District 9 Roof Control
Supervisor William Ponceroff6 and CW President Bill Stoddard. Id. At the meeting, the
participants discussed the need for full roof bolting and the other changes in MSHA’s September
9 letter. Id.

   5
       Section 75.202(a) states:

            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.
   6
     Ponceroff was responsible for reviewing roof control plans for all mines in the district

and for advising the district manager, who had the ultimate authority to approve plans. Tr. 24.

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Page 4

   In a letter dated October 4, MSHA recapped the meeting discussion and noted that

Stoddard agreed to submit an acceptable plan within two weeks and that the deadline for
submission was extended to October 11. Id. at 1563-64. The letter also stated that CW must
make the necessary revisions or “the currently approved roof control plan will be rescinded.” Id.
at 1564.

    On October 12, CW submitted a “new revised” roof control plan. Id. The plan did not

provide for a permanent roof support mining cycle. See Gov’t Ex. 12. The “typical pillar
extraction sequence” was also similar to that of the old plan. See Gov’t Ex. 12, Fig. 7; Gov’t Ex.
2, Fig. 10.

     On October 22, MSHA faxed to CW 16 deficiencies in the “new revised” roof control

plan. 15 FMSHRC at 1564. MSHA indicated that the plan must include a provision for “Full
Roof Bolting” as the primary roof support. Gov’t Ex. 13, at 1, citing Gov’t Ex. 12, at 1, 5.
MSHA further stated that “roof bolts will be drilled at 20 feet intervals.” Id., citing Gov’t Ex. 12,
at 7, Item 2. MSHA also indicated that the “Typical Pillar Extraction Sequence” was unaccept-
able and that pillar lifts were taken out of sequence. Id., citing Gov’t Ex. 12, at 9, Item 3 & Fig.

7. The hard copy concluded:

          Since all negotiations concerning the development of an acceptable
          roof control plan, in accordance with 30 C.F.R. 75.220, remain at
          an impasse, the currently approved roof control plan is rescinded.
          Any further mining activities without an approved plan is a violation
          of 30 C.F.R. 75.220.
   

15 FMSHRC at 1564-65.

   Effective October 23, MSHA revoked the old roof control plan. Id. at 1565. Later that

same day, MSHA Inspector Ted Farmer issued CW a citation alleging violation of section
75.220(a)(1) for operating without an approved roof control plan, and set a termination date of
October 26. Id.; Gov’t Ex. 15. On October 26, Farmer extended the termination date to October

28. Gov’t Ex. 15.

    On October 28, MSHA received a proposed roof control plan from CW providing that the
    

    primary method of roof support would be roof bolting. Gov’t Ex. 16. With regard to the pillar
    extraction sequence, CW adopted the sequence of cuts requested by MSHA. Compare Gov’t Ex.
    16, Fig. 7 with Gov’t Ex. 33, Fig. 7. CW indicated that it was filing the proposed plan under
    protest as “dictated” by MSHA. Gov’t Ex. 16.

    On October 29, MSHA Inspector Robert Baker extended the citation’s termination date
    

    to November 1. Gov’t Ex. 15. After a telephone conversation between representatives of CW
    and MSHA, CW further revised the plan’s pillar extraction procedure by providing for installation

                                              4
    

Page 5

of breaker posts, temporary supports and roof bolting in accordance with MSHA’s request. 15
FMSHRC at 1565-66; Gov’t Ex. 17.

   On October 30, MSHA informed CW that the submitted roof control plan remained

unacceptable in six respects. 15 FMSHRC at 1566. In response, that same day, CW faxed the
requested revisions. Id. On November 4, the MSHA district manager approved CW’s revised
plan. Id.7 The approved plan included the 20-foot roof bolting cycle and the new pillar extraction
procedure and cut sequence. Id.

    Before the judge, CW argued that the mine’s old roof control plan was improperly

revoked; that MSHA did not consult over the requested changes in good faith; and that the mine’s
old roof control plan was adequate, more suitable and a safer roof control plan than the new plan.
Id. at 1559. The judge concluded that CW violated section 75.220 by operating a coal mine
without an approved roof control plan. Id. at 1572. The judge found that the Secretary and CW
had “negotiated in good faith and for a reasonable period of time” over the terms of the roof
control plan, but were unable to reach an agreement on the roof bolting cycle and the pillar
extraction procedure. Id. at 1561, 1567. The judge determined that the new plan was “suitable
for the mine in question and . . . mine specific.” Id. at 1571, 1572. For similar reasons, the judge
found that the old roof plan was no longer suitable to the conditions at the mine. Id. at 1572.
The judge relied upon the testimony of MSHA’s roof control experts about changing roof
conditions at the mine and specifically credited MSHA’s expert witnesses over CW’s witnesses.
Id. at 1570-72.

                                              II.

                                         Disposition

    On review, CW argues that the judge erred in finding that the Secretary properly revoked

the old roof control plan as unsuitable. PDR at 2-35. CW submits that the Secretary followed
neither the letter nor the spirit of his regulations, criteria, and program policy in revoking the old
plan. Id. at 2-3, 6-7, 17, 28. CW also contends that each roof control plan must be unique and
structured to meet the specific conditions of the mine. Id. at 4-5, 7. CW submits that no
consideration was given to prevailing geological conditions, the mining system, the accident and
injury history, or any of the other unique factors at its mine. Id. at 16-17. CW argues that the
Secretary did not consult in good faith over the requested changes, did not provide reasons in
writing for rejecting CW’s plan, and simply adopted by fiat, the changes imposed. Id. at 14, 17-

19. CW also argues that the old roof bolting development cycle was suitable, and that the new
    plan's pillar extraction method is not suitable. Id. at 4, 7-17, 19-35.

    7
    On November 25, 1991, MSHA corrected an inadvertent error in the approved plan’s
    pillar extraction sequence and reissued a new copy of the approved plan. 15 FMSHRC at 1566.

                                               5
    

Page 6

    The Secretary responds that substantial evidence supports the judge’s decision. S. Br. at

7. He argues that MSHA consulted in good faith and properly revoked CW’s roof control plan.
   Id. at 8-16. He further submits that changes in the plan were necessary due to significant changes
   in the mine’s roof conditions and that the requested changes were mine-specific. Id. at 15-16 n.8,
   22-23& n.13. According to the Secretary, there was a history of roof fall accidents and citations
   for violative roof conditions at the mine. Id. at 23. The Secretary contends that substantial
   evidence supports the judge’s findings that the old provisions were no longer suitable and that the
   new provisions are suitable. Id. at 18, 20-27.

   A. Revocation of the Old Roof Control Plan

    We reject CW’s contention, PDR at 6-7, that the Secretary’s revocation of its old plan
   

   was improper because nothing in the regulations prohibit the old roof control provisions. Roof
   control plan provisions are not limited to implementing the substantive provisions of the Secre-
   tary's regulations and criteria; they may provide for protection in addition to those standards.
   Section 75.220(a)(1) states that “[a]dditional measures shall be taken to protect persons if unusual
   hazards are encountered.” See also 30 C.F.R. § 75.222(a) (“Additional measures may be required
   in plans by the District Manager.”); 30 C.F.R. § 75.207 (“Pillar recovery shall be conducted in the
   following manner, unless otherwise specified in the roof control plan . . . .”); 30 C.F.R. §
   75.223(a)(1) (“Revisions of the roof control plan shall be proposed . . . [w]hen conditions indicate
   that the plan is not suitable for controlling the roof . . . .”). Thus, while plan provisions may
   implement the substantive provisions of the Secretary’s standards, they may also supplement
   MSHA’s regulations in the interest of better protecting miners’safety.

   We also reject CW’s argument that the Secretary’s revocation or approval of roof control
   

   provisions must be based on conditions that are “unique” to the mine. See PDR at 4-5, 7.
   Neither section 75.220(a) nor its statutory source limit roof control plans to unique conditions of
   the mine. Section 75.220(a) stipulates only that the plan provisions be “suitable to the prevailing
   geological conditions, and the mining system to be used at the mine.” Section 75.220(a) is based
   on Section 302(a) of the Mine Act, which requires each operator to adopt “[a] roof control plan
   and revisions thereof suitable to the roof conditions and mining system of each coal mine and
   approved by the Secretary.” 30 U.S.C. § 862(a). The Commission considered and rejected the
   uniqueness argument in Peabody Coal Co., 15 FMSHRC 381 (March 1993) (“Peabody I”).
   There, the Commission stated:

          [R]oof control plan provisions must address the specific conditions
          of a particular mine. Such conditions, however, need not be unique
          to the mine. Indeed, a general plan provision addressing conditions
          that exist at a number of mines may be permissible providing those
          conditions are present at the mine in question.
   

Id. at 386 (emphasis added). Accordingly, the Secretary need show only that the provisions in
question address specific conditions of the mine; those conditions need not be unique.

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    CW also attacks the Secretary’s revocation of the old plan on factual grounds, arguing

that the Secretary failed to give consideration to prevailing geological conditions, the mining
system, accident and injury history, or any other factors required to be considered on a mine-by-
mine basis. PDR at 16-17. We think substantial evidence supports the judge’s findings that CW
was encountering changing and increasingly adverse roof conditions, and that the new plan
provisions were mine-specific. See 15 FMSHRC at 1571, 1572. There is considerable testimony
that CW was encountering changing adverse roof conditions in the development and pillar
sections of the mine. See, e.g., Tr. 32, 99-106, 284-85; Gov’t Ex. 21. Because of the adverse
roof conditions, CW had limited itself to a 20-foot cycle in its development sections. Tr. 41-42,
275-77. The new plan provisions were specifically aimed at those changing adverse roof
conditions. Tr. 29-30, 32, 125-30.

   B.      Good Faith Consultations

    We are not persuaded by CW’s argument that “[t]he Secretary provided no reasons in

writing [for disapproval of the old plan], refused to negotiate, and simply adopted by fiat, the
changes imposed.” PDR at 18. Substantial evidence supports the judge’s finding that the
Secretary consulted in good faith with CW over the roof control plan.

     The plan approval process involves good faith discussions between MSHA and the mine

operator. United Mine Workers of America v. Dole, 870 F.2d 662, 667 (D.C. Cir. 1989) (“[t]he
specific contents of any individual mine [ventilation or roof control] plan are determined through
consultation between the mine operator and the [MSHA] district manager”). The consultation
process provides the operator with notice of MSHA’s intended action and opportunity to voice
objections and make suggestions concerning proposed plan provisions. This is not to say,
however, that the Secretary is in the same position as a private party conducting arm’s length
negotiations in a free market. Ultimately, absent bad faith or arbitrary action, the Secretary
retains the discretion to insist upon the inclusion of specific provisions as a condition of the plan’s
approval. As the court noted in Dole:

           [W]hile the mine operator had a role to play in developing plan
           contents, MSHA always retained final responsibility for deciding
           what had to be included in the plan. In 1977 Congress “caution[ed]
           that while the operator proposes a plan and is entitled, as are the
           miners and representatives of miners to further consultation with
           the Secretary over revisions, the Secretary must independently
           exercise his judgment with respect to the content of such plans in
           connection with his final approval of the plan.”

870 F.2d at 669 n.10, quoting S. Rep. No. 181, 95th Cong., 1st Sess. 25 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 613 (1978). See also
Peabody Coal Co., 18 FMSHRC 686, 692 (May 1996) (“Peabody II”) (“plan approval process

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involves an element of judgment on the part of the Secretary”); Monterey Coal Co., 5 FMSHRC
1010, 1019 (June 1983) (withdrawal of approval of water impoundment plan was not arbitrary or
capricious where MSHA’s conduct throughout the process was reasonable).

    Two key elements of good faith consultation are giving notice of a party’s position and

adequate discussion of disputed provisions. In Peabody I, the Commission reversed the judge’s
finding that the operator had failed to negotiate in good faith, noting that the operator communi-
cated its legal position to the Secretary, that “adequate discussion occurred between the parties,”
and that the operator requested and attended meetings with MSHA to discuss the ventilation
provision and proposed an alternative. 15 FMSHRC at 388. The Commission also noted that
“reliance on a cognizable legal position is not indicative of bad faith negotiation by an operator in
the plan approval process.” Id.

     Based on these principles, we affirm the judge’s finding, which is supported by substantial

evidence, that the parties engaged in good-faith consultations prior to revocation of the old plan
and approval of the new plan. After CW submitted its roof control plan to MSHA on June 29,
1991 for the required six-month review, the parties exchanged correspondence and fully explored
the changes MSHA was proposing, the rationale behind them, and CW’s objections. MSHA
notified CW of proposed changes, twice extended the deadline for CW to present an acceptable
plan, and held a face-to-face meeting with CW. MSHA District Roof Control Supervisor
Ponceroff testified that at the meeting, the participants discussed roof control plan provisions
MSHA wanted modified. Tr. 117-121. Once it became apparent that CW officials understood
the changes that MSHA desired, but simply disagreed with them, the meeting ended. Tr. 79-81,
532-33; Gov’t Ex. 7. Immediately after the meeting, Ponceroff and other MSHA officials,
including MSHA Inspectors Gibson and Ted Farmer, visited the mine to verify that the conditions
MSHA was concerned about were in fact still present. Tr. 119-21. When a further exchange of
letters failed to result in a plan acceptable to MSHA, the agency rescinded CW’s old plan and
cited the operator for failing to operate under an approved roof control plan. This bilateral
process lasted almost four months from the time CW first submitted its old plan to MSHA for
review.

    CW also argues that MSHA gave no reasons in writing for disapproving the old plan

provisions. PDR at 18, citing Bishop Coal Co., 1 MSHC (BNA) 1367, 1370-71 (November
1975). The statement of reasons discussed in Bishop is merely a facet of the good faith discussion
requirement and its purpose is to insure that the operator is informed why MSHA has disapproved
the plan. Here, substantial record evidence establishes that MSHA did give CW adequate notice
as to why the plan was being disapproved. In its August 9 letter, MSHA set forth in detail, by
page and item number keyed to CW’s original plan, the areas in which it thought CW’s plan
deficient. Gov’t Ex. 3. On October 22, MSHA also faxed to CW a communication identifying
16 deficiencies in CW’s revised plan. Gov’t Ex. 13; 15 FMSHRC at 1564.

    We discern in these events adequate notice and discussion by MSHA officials. Nothing in

the record suggests bad faith by MSHA, and we perceive no course of arbitrary conduct. We

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Page 9

therefore affirm the judge’s determination that the Secretary and CW engaged in sufficient good
faith consultations prior to the revocation of the old plan and the approval of the new plan.

   C.      Suitability

    The Secretary did not object to assuming the burden of proving both that the old plan was

no longer suitable to the conditions and mining system of the coal mine, and that the new plan is
suitable. See S. Br. at 23; see also Peabody II, 18 FMSHRC at 691. With respect to the roof
bolting development cycle required by MSHA, CW argues that the old plan was suitable to the
conditions of the mine, and therefore was improperly revoked by MSHA. PDR at 27. CW does
not challenge the suitability of MSHA’s new provision for roof bolting. Concerning the pillar
extraction provisions, CW maintains that the old plan was suitable, and MSHA’s provisions are
unsuitable. Id. at 19, 27-29, 33, 35. In Peabody II, the Commission defined “suitable” as
“‘matching or correspondent,’‘adapted to a use for purpose: fit,’‘appropriate from the view-
point of . . . convenience, or fitness: proper, right,’‘having the necessary qualifications: meeting
requirements.’” 18 FMSHRC at 690, quoting Webster’s Third New International Dictionary
2286 (1986). The Commission held that “the Secretary carried his burden of proving the
unsuitability of the former plan and the suitability of the new provision once he identified a
specific mine condition not addressed in the previously approved ventilation plan and addressed
by the new provision.” 18 FMSHRC at 690.

           1.      Roof Bolting Development Cycle Provision

    The old plan, although requiring full roof bolting, allowed the operator to advance 120

feet “where the roof was strong and competent” between bolting cycles. Gov’t Ex. 2, at 5, Item

3. However, “[i]n areas where subnormal roof conditions [were] encountered . . . the operator
   [was required to] provide additional support where necessary.” Gov’t Ex. 2, at 5, Item 1. In
   finding the old provision unsuitable, the judge relied on the testimony of M. Terry Hoch, a mining
   engineer, who was head of the Roof Control Division of the MSHA Safety and Health Technol-
   ogy Center in Pittsburgh, Pennsylvania; Jerry Davidson, a geologist at the MSHA Safety and
   Health Technology Center in Denver, Colorado; and mining engineer David Ropchan of the
   Denver Center. The judge concluded:

                  Based upon their superior credentials I credit the opinion of
          the Secretary's Safety and Health Technology Center experts.
          Based upon their testimony and the undisputed fact that there were
          changing adverse roof conditions in the mine that required full roof
          bolting on 20 foot cycles, I find that the old roof plan was no longer
          suitable to the conditions of the mine in question and was properly
          revoked.
   

15 FMSHRC at 1572.

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     In our view, no sufficient reason has been advanced to overturn the judge’s decision to

credit the opinion of the Secretary’s experts, and substantial evidence supports the judge’s
unsuitability finding. “[A]n ALJ has substantial latitude in choosing between conflicting expert
testimony.” In Re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819,
1844 (November 1995) (“Dust Cases”), appeal docketed sub nom. Secretary of Labor v.
Keystone Coal Mining Corp., No. 95-1619 (D.C. Cir. Dec. 28, 1995) (quoting L & J Energy Co.
v. Secretary of Labor, 57 F.3d 1086, 1088 (D.C. Cir. 1995)). Hoch, Davidson, and Ropchan all
testified the old plan provision was unsuitable. In general, their testimony rejected CW’s past
reliance on the use of top coal as adequate for purposes of temporary support. Tr. 398-402,
1103-12. Hoch testified that coal roof cannot be a sole means of support because, as a material, it
is inconsistent, jointed, cleated and, most importantly, can and will fall. Tr. 448; 15 FMSHRC at
1571. He stated that top coal can “mask” hidden roof problems such as joints and fractures. Tr.
398-99, 406; 15 FMSHRC at 1571. He also testified that coal left on the roof can increase the
absorption of humidity into the shales and sandstone above it, increasing the dangers of roof falls.
Tr. 398-99; 15 FMSHRC at 1571. Davidson testified that roof coal is not self-supporting. Tr.
345-46, 369. Ropchan testified that it is not possible to accurately predict the magnitude of
tensile forces created in a coal layer left in the roof. Tr. 1095. MSHA Inspector Gibson’s
testimony was consistent with that of the Secretary’s experts. Tr. 285-86.

    Additionally, there were adverse roof conditions in the development sections of the mine

and a declining presence of top coal. E.g., Tr. 615, 1079. CW does not appear to dispute this
point on review but, instead, states that these conditions were “temporary.” PDR at 27. To the
extent the adverse conditions were, in fact, temporary, we note that mine plan provisions are not
set in concrete and are subject to review every six months under 30 C.F.R. § 75.223(d). Indeed,
the record indicates that CW was already mining on a 20-foot cycle due to adverse conditions.
The record also indicates adverse roof conditions continued to exist after MSHA revoked the
plan. Tr. 320-23, 353, 400-05, 407-08.

   CW argues that the judge should have credited the testimony of its witnesses, including

MSHA Inspectors John Turner, Ted Farmer, and Donald Hanna, who held the view that top coal
was adequate roof support. PDR at 8-9, 16, 22-24. None of the three inspectors presented any
geological or engineering data to support the use of top coal as roof support or to otherwise
controvert the Secretary’s experts. Rather, they relied upon their past experience and general
opinion. Farmer conceded that conditions in the mine had deteriorated, changing dramatically,
and that in June 1991, CW was using a 20-foot roof bolting cycle to support the roof. Tr. 800-
01, 804-05, 842-43. Accordingly, we conclude that the inspectors’testimony presented by JWR
does not fatally undermine the Secretary’s expert witnesses, whose opinion the judge accepted.

    CW also relied on expert witness Dr. Krishna Sinha, a geological engineer, who testified

that there was no added safety benefit in requiring installation of roof bolts in 20-foot cycles. Tr.
983-84, 992. The judge rejected Sinha’s testimony. 15 FMSHRC at 1570. Sinha did not know
from which areas of the mine the roof samples that he tested had been taken. Tr. 993. Sinha
admitted he did not perform tensile or shear strength tests on the roof samples. Tr. 995. Sinha

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Page 11

also conceded that the computer program he used to analyze the roof did not consider the effect
of roof bolts on the stability of the roof. Tr. 997-98. The Secretary’s expert, Ropchan, explained
that Sinha erroneously assumed the mine roof was homogeneous, but that evidence demonstrated
that different areas of the mine had different geological formations with varying amounts of
overburden. Tr. 996-99, 1090-92. On this record, we decline to disturb the judge’s appraisal of
Sinha’s testimony. See Dust Cases, 17 FMSHRC at 1843-44.

    CW further argues that its roof fall reports show a minimum number of falls. In view of

the changing adverse roof conditions, however, CW’s past record does not strike us as com-
pelling. In sum, we conclude that the previously approved plan did not address changing adverse
roof conditions, and that substantial evidence supports the judge’s finding that the old plan
provision relating to the roof bolting development cycle was unsuitable to the present conditions
of CW’s mine.

    CW does not contest the suitability of the 20-foot roof bolting development cycle

provision approved by MSHA. CW’s letter to MSHA of October 23, 1991, simply states that the
previously approved provision was as safe as the provision advocated by MSHA. Gov’t Ex. 16.
The 20-foot cycle addresses the hazard of roof falls under adverse roof conditions because the
reach of the continuous mining machine beyond the cab operator is 20 feet. Tr. 118. Roof
bolting is the universally accepted means of supporting roof. Even Inspector Hanna, testifying as
CW’s witness, conceded that roof bolting plus top coal was a more desirable system than reliance
on top coal alone. Tr. 896-97. The provision for a 20-foot bolting cycle addresses the adverse
roof conditions continuing at the mine. Accordingly, we affirm on substantial evidence grounds
the judge’s determination that MSHA’s 20-foot roof bolting cycle is suitable to the conditions of
CW’s mine.

           2.      Pillar Extraction Provision

                   a.     Unsuitability of Old Plan Provision

    The judge found the old pillar extraction provision unsuitable based on the testimony of

Hoch, Davidson, and Ropchan, the Secretary’s expert witnesses. 15 FMSHRC at 1572. CW
asserts that the testimony of the Secretary’s witnesses should have been discounted because none
of them ever pulled a pillar, using either the old or new method, or observed pillar removal at the
mine. PDR at 28-29. CW also contends that its method of pulling pillars had been used
successfully and safely for over 25 years. Id. at 19.

    Hoch, the head of the Roof Control Division at MSHA’s Pittsburgh Center, had 20 years

of experience with the Department of Interior’s Bureau of Mines and with MSHA dealing, in part,
with the extraction of pillars. Tr. 421. Hoch indicated that during this period he visited at least
150 coal mines in every district of the United States. Id. Hoch visited CW’s mine on August 17,
1992. Tr. 424. His basic testimony was that pillar mining is dangerous, based on the possibility

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of roof falls, and that miners should not go inby unsupported roof. Tr. 427. Hoch also testified
that mining inby a cut is “poor mining practice.” Tr. 433.

     Davidson’s experience on pillar work was not noteworthy. His experience focused on

non-coal mines and he indicated that he never reviewed on-site the extraction of an entire pillar at
a coal mine. Tr. 353. When he visited CW’s mine in January and February 1992, Davidson
looked at the areas where CW was going to pull pillars and noticed their deterioration. Tr. 317,
353, 360, 361, 367-68. Davidson testified that CW’s method was not a safe way to mine pillars
because the process exposed miners to a large area of unsupported roof, and that there was
virtually no secondary ground support. Tr. 327-35, 344-45. Davidson further stated that roofs
that are not supported by “outside” means such as roof bolts and timbers are unpredictable. Tr.
346.

    Ropchan’s underground mining experience was with the Bureau of Mines in mining

research. Tr. 1098. He had an engineering degree and did graduate study at the Colorado School
of Mines and received a masters degree from Stanford University in applied mechanics. Tr. 1070.
He visited the mine twice, in August 1991 and August 1992. Tr. 1078-80. During the 1992 visit,
he examined the pillar extraction area. Tr. 1102-03. Ropchan testified that larger areas of open
ground create greater potential danger and that, under CW’s pillar extraction process, more open
ground is created than under the process advocated by the Secretary. Tr. 1097.

    Ponceroff also testified against CW’s pillar extraction process. As the roof control

supervisor for MSHA District 9, Ponceroff assisted the district manager in reviewing roof control
plans and determining whether a plan should be approved. Tr. 18, 23-24. He visited CW’s mine
various times between 1986 and October 1991. Tr. 23, 121, 141-44. Ponceroff also had
considerable actual mining experience in pulling pillars, although not in mines west of the
Mississippi. Tr. 134, 137-40. He indicated the failure to have splits bolted was faulty, and that
the purpose of bolting in the split was to protect miners as they advanced. Tr. 89, 239-40.
According to Ponceroff, the District submitted the plan to the MSHA Denver Technical Support
Division, and that Division advised that CW’s pillar extraction method was a poor mining practice
and unsafe. Tr. 130.

   On the other hand, CW argues that its witnesses, who had actual experience pulling pillars

using both methods, believed that CW’s method provided adequate support and safety. PDR at

29. These witnesses included CW personnel with extensive experience in pillaring and also
    MSHA inspectors Turner and Farmer, who were familiar with pillaring at the mine. Tr. 546-50,
    638, 662-63, 665, 669, 697, 735, 789, 806-07, 815, 1014. While CW also called MSHA
    Inspector Hanna as a witness, Hanna did not indicate whether CW’s old procedure or the new
    procedure was better. Tr. 902. CW again relies upon the testimony of its expert, Dr. Sinha,
    whose testimony the judge found unpersuasive. 15 FMSHRC at 1570.

    We conclude that CW has failed to show that the judge’s credibility resolutions should be
    overturned. Even if the pillaring testimony of the relatively less experienced Davidson is given

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less weight, both Hoch and Ropchan were qualified experts and provided corroborative testimony
that the previously approved plan failed to adequately address adverse roof conditions in the pillar
sections by not requiring bolting in the pillar splits, and by mandating the taking of lifts in a
sequence that resulted in mining inby a cut, thereby creating larger areas of open ground.
Although the relevant testimony is, in part, conflicting, we cannot say that the evidence support-
ing the judge’s finding is insubstantial. Accordingly, we affirm as supported by substantial
evidence the judge’s determination that the prior plan provision on pillar extraction was unsuitable
to the adverse roof conditions in CW’s mine.

                   b.     Suitability of the New Pillar Extraction Provision

     For similar reasons, we decline to overturn the judge’s decision to credit the opinions of

the Secretary’s experts, Hoch, Davidson, and Ropchan, in making his determination that the new
pillar extraction provision is suitable. 15 FMSHRC at 1571. Both Hoch and Ropchan testified
roof bolting in the pillar split helps keep the layers of roof together, protects miners from roof
failure and prevents debris falling from the roof and injuring miners. Tr. 415-16, 1087-88.
Davidson indicated two reasons why the new provision was safer than the old one: (1) bolts
provide secondary ground support installed where miners would be working; and (2) the size of
the area most inby where miners may be working is reduced. Tr. 338-44, Gov’t Ex. 32, at 7.
Davidson emphasized that without roof support, miners are exposed to what could very quickly
become a cave line. Tr. 345. Ropchan testified that miners would be more exposed under the old
plan than under the new plan, especially with regard to mining inby. Tr. 1095-97; compare Gov’t
Exs. 40-A and 40-B.

     CW takes the position that the Secretary’s provision is hazardous and therefore not

suitable. PDR at 27-29, 33, 35. MSHA Inspector Turner indicated CW had difficulty in pulling
pillars under the new plan. Tr. 698-99. He testified that roof bolting in the pillars transfers the
weight from pillar to pillar causing increased pressure on the roof bolts in the split and the ribs,
and results in little warning of roof failure or rib deterioration. Tr. 699-704. In Turner’s view,
the provision advocated by the Secretary was neither effective nor safe. Tr. 722-23, 735. Turner
emphasized that, in pulling pillars, timeliness is a necessity. Tr. 723. According to Turner, roof
bolting the pillar splits conflicts with the principle of removing the coal and getting the cave
quickly. Tr. 724. MSHA Inspector Farmer also expressed doubts about the suitability of the new
plan provision. Tr. 811-12. Farmer felt that the roof bolter was in a fairly hazardous position
when doing the pillar split bolting. Tr. 813. He was also concerned that pressure would “ride
over” the roof bolts. Tr. 809-10. MSHA Inspector Hanna agreed that the longer pillars stand
after cutting, the more pressure they take; he also suggested that roof bolting takes time. Tr. 901.
Hanna, however, conceded that both CW’s old procedure and the procedure advocated by the
Secretary have been successful and could not say which one would be better. Tr. 902. But see
Tr. 896 (suggesting Secretary’s procedure better). CW’s management uniformly testified against
the new provision, generally along the lines of Turner and Farmer. Tr. 546-49, 550, 640-42, 669.
CW’s expert, Sinha, indicated only that he did not see any safety advantage in the Secretary's
provision. Tr. 991-92.

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    Hoch and Ropchan disagreed with Turner’s view that roof bolting would transfer weight

to the pillars. Tr. 413-15, 1087, 1097. In their view, bolting the roof does nothing more than
keep the layers together so they do not fall. Tr. 338-48, 1085-88. Hoch generally disagreed with
Turner’s views on pillar pulling. Tr. 444. Ropchan indicated that the purpose of roof bolting was
to prevent any possible failure of the roof. Tr. 1108.

    As to the effect of roof bolting, the record establishes that its purpose is to keep the layers

of roof together so they do not fall. While the contrary view of CW’s witnesses may be plausible,
the judge did not abuse his discretion in deciding to credit the Secretary’s witnesses, who testified
that bolting increases safety in the pillaring operation. The Commission does not lightly overturn
a judge’s evaluation of expert witness testimony. Dust Cases, 17 FMSHRC at 1843-44. This
same principle leads us to uphold the judge’s crediting of the Secretary’s witnesses who opined
that the Secretary’s provision reduces the need for miners working inby unbolted roof and is
therefore safer than the old plan provision. Also supporting the judge’s suitability determinations
is the evidence of changing adverse roof conditions in the pillar section of the mine. In sum, we
conclude that the new plan provisions address the adverse roof conditions in the pillar section of
CW’s mine.

    Accordingly, we affirm on substantial evidence grounds the judge’s determinations that

the old plan provisions were unsuitable to the conditions in CW’s mine, and the new plan
provisions are suitable.

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                                    III.

                                Conclusion

For the foregoing reasons, we affirm the judge’s decision.

                                 ________________________________
                                 Mary Lu Jordan, Chairman




                                 ________________________________
                                 Marc Lincoln Marks, Commissioner




                                 ________________________________
                                 James C. Riley, Commissioner




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