Somerset Mining Company

Plain-English summary

Somerset Mining operated the Sanborn Creek underground coal mine in Colorado and contested a citation alleging that its roof-control plan did not comply with 30 C.F.R. § 75.220(a)(1). The dispute concerned whether Somerset could use double splitting of certain pillars during retreat mining in the B seam after coal outbursts raised safety concerns. Judge August F. Cetti found that the parties had negotiated in good faith and that the Secretary had not proved the double-splitting method was unsuitable for the mine's geological conditions. He vacated Citation No. 3584806 and granted Somerset's contest.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220(a)(1)
• Outcome: Citation No. 3584806 was vacated and Somerset's contest was granted.
• Key point: In a disputed roof-control-plan provision, the Secretary had to prove that the challenged method was unsuitable for the mine.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

                       January 17, 1996

SOMERSET MINING COMPANY, : CONTEST PROCEEDING
Contestant :
: Docket No. WEST 95-267-R
v. : Citation 3584806; 3/16/95
:
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Sanborn Creek Mine
ADMINISTRATION (MSHA), : Mine ID 05-04452
Respondent :

                            DECISION

Appearances: Charles W. Newcom, Esq., Sherman & Howard,
Denver, Colorado,
for Contestant;
Robert Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent.

Before: Judge Cetti

 This case is before me pursuant to section 105(d) of the

Federal Mine Safety & Health Act of 1977, 30 U.S.C. § 801, et
seq., the "Mine Act". Somerset Mining Company (Somerset) chal-
lenges a citation issued to it by the Secretary of Labor Secre-
tary) for an alleged violation of 30 C.F.R. § 75.220(a)(1). The
cited standard requires a mine operator to develop and follow a
suitable roof control plan, approved by the MSHA District
Manager.1

 1
     Section 75.220(a)(1) provides:

   Each mine operator shall develop and follow a roof control

plan, approved by the District Manager, that is suitable to the
prevailing geological condition, 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

 The Sanborn Creek Mine is an underground mine located near

Somerset, Colorado. The surface topography is mountainous. An
advance and retreat panel and pillar method is used for mining
the underground coal in the "B" seam of the mine. From April
1994 to January 1995 Somerset mined under an MSHA approved mine
plan which provided, on retreat mining, for the double splitting
of pillars which have between 1,500 and 2,000 feet of ground
cover (overburden).

 In January 1995 an "outburst" or "bounce" of coal along the

down-dip side of the barrier pillar resulted in an injury to a
section foreman. The injury was immediately reported to MSHA and
in due course MSHA was made aware that in August 1994 there had
been a prior bounce (a non-reportable one) not involving any
injury. That first bounce was also located on the down-dip side
of the barrier pillar. As a result of these two bounces or out-
bursts the operator, as well as MSHA, had safety concerns. MSHA
withdrew its approval of the pillar splitting provisions of the
mine's roof control plan in January 1995 and issued a citation
concerning the adequacy of the roof control plan to protect min-
ers and equipment from coal bursts. (Tr. 94-95). After some
discussions and negotiations between MSHA and Somerset, that
citation was withdrawn. It was agreed that the operator would
hire an outside consultant to "study things further" rather than
litigate the citation at that time. As a result of this agree-
ment, Somerset asked Dr. John Abel, an expert mining consultant
and Professor Emeritus at the Colorado School of Mines, to study
the coal "outburst" problem and the suitability of resuming dou-
ble splitting of the pillars in question in the "B" seam of the
mine.

                           II

 It is undisputed that "coal outburst" was the specific

safety hazard that MSHA was concerned with (Secretary's brief,
page 5). Dr. Abel visited the mine and prepared a comprehensive
report based upon his analysis of the mine and the testing of
coal samples taken from the Sanborn Creek Mine. Dr. Abel's
solution for the coal outburst problem was to drive a series of
short stub rooms, 10 feet long and 20 feet wide, into the down-
dip barrier pillars at every crosscut or stub rooms 10 feet long
and at least 14 feet wide on 50-foot centers. In his March 10,
1995, comprehensive twenty-five page report Dr. Abel recommended
the following:

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        Softening of the down-dip barrier pillar
      ribside is recommended to alleviate bounces
      in the down-dip entry. This can probably be
      accomplished by mining a short, at least 10-
      foot long, 20-foot wide, stub room into the
      down-dip barrier pillar at each breakthrough
      (crosscut) during panel advance. Alterna-
      tively, a series of short, at least 10-foot
      long and at least 14-foot wide, stub rooms
      driven down-dip on 50-foot centers into the
      down-dip barrier pillar ribside should alle-
      viate the bounce problem. Either of the
      recommended stub room configurations will
      move the shear stress concentration from the
      edge of the approximately 1720-foot long
      straight-sided barrier pillar ribside to a
      position back into the barrier pillar.
      Either of the recommended modifications of
      the panel retreat mining method should elim-
      inate bounces in the down-dip entry, without
      inducing a roof failure. If down-dip bounces
      continue to develop after the modification,
      the bounces should be located at the face of
      the unused stub rooms.

        Robbing of panel pillars upon retreat is
      essential to the safe application of room and
      pillar mining method used at depths of about
      1500 to 2500 feet in the Sanborn Creek Mine.
      Pillar robbing on the retreat results in
      yielding of the stump pillars remaining after
      splitting the advance coal pillars, prevent-
      ing roof or floor pillar failure. The three
      30-foot wide by 80-foot long by 7-foot high
      panel advance pillars in the 170-foot side,
      four entry, advance panel are graded to a
      height of 12 feet before being robbed on the
      retreat. The panel width is increased to 270
      feet by driving 100-foot long rooms on 50-
      foot centers in the up-dip barrier pillar
      during the retreat. The up-dip rooms perform
      the same function of pushing the abutment
      stresses back into the barrier pillar that is
      proposed for the down-dip stub rooms recom-
      mended for the down-dip barrier pillar.

 It is clear from Dr. Abel's report and testimony at the

hearing that Dr. Abel's solution to the coal outburst problem was
a series of stub rooms into the barrier pillar. This recommenda-

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tion was approved and adopted. It is undisputed in the record
before me that there were no more outbursts of coal after the
series of stub rooms recommended by Dr. Abel were driven into the
barrier pillar.

 Dr. Abel, in his analysis, also determined that on retreat

mining, double splitting of pillars located between 1,500 and
2,000 feet of cover in the "B" seam was safer than single
splitting because the double split pillars yield at a safer more
controlled rate than single split pillars. Dr. Abel opined that
double splitting of pillars in the "B" seam located between 1,500
and 2,000 feet of cover was safer and more suitable for the San-
born Creek Mine than single splitting.

 Dr. Abel's report dated March 10, 1995, along with Somer-

set's request to resume double splitting, was sent to MSHA before
a March 1995 meeting between MSHA and Somerset. The report was
submitted to MSHA mining engineer Ted Hansen who believed that
the double splitting of pillars caused the bounces. Mr. Hansen
disagreed with Dr. Abel's conclusion that double splitting was
safe and suitable for the mine. Hansen and his supervisors pre-
pared their own reports, recommending that Somerset not be per-
mitted to resume double splitting of the pillars in question.
(Gov't. Ex. 5-7).

 The March 1995 meeting between MSHA and the operator did not

result in an agreement to permit double splitting of the pillars
in question. Dr. Abel attended this meeting and following the
meeting prepared a follow-up report on the single versus double
splitting of the pillars in question. (Resp. Ex. 3). In order
to obtain Commission jurisdiction to resolve the dispute, Somer-
set mine manager Walt Wright signed a letter (which had been
drafted by MSHA) advising MSHA that Somerset would not adopt the
revised roof control plan and that it intended to double split
pillars. (Tr. 121-122; Gov't. Ex. 3 at p. 1). MSHA responded by
issuing the present contested Citation No. 3584806, alleging a
104(a) violation of 30 C.F.R. § 75.220(a)(1), which requires
operators to develop and follow an approved roof control plan.
Thus, the citation was issued as part of an agreed plan between
the operator and MSHA so Somerset could request a hearing on the
disputed issue.

 As stated by counsel for the Secretary in his post-hearing

brief "The important facts in this case are not in dispute."
Specifically, there is no dispute between Somerset and MSHA con-
cerning the history of the mine, how the mining panels were de-
veloped, the advance and retreat room and pillar method of mining
and the fact that two above-mentioned coal outbursts occurred in

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Page 5

the down-dip side of the barrier pillar before the 5th west panel
of the "B" seam was retreated.

                           III

              Applicable Law and Discussion

 The citation alleges a violation of safety standard 30

C.F.R. § 95.220(a)(1) which, in relevant part, requires each mine
operator to "develop and follow a roof control plan, approved by
the District Manager, that is suitable to the prevailing geologi-
cal conditions, and the mining system to be used at the mine."

 Section 302(a) of the Mine Act requires each operator to

carry out on a continuing basis a program to improve the roof
control system of each mine. It reads in pertinent part as
follows:

        Sec. 302. (a) Each operator shall under-
      take to carry out on a continuing basis a
      program to improve the roof control system of
      each coal mine and the means and measures to
      accomplish such system.

 In Dole, 870 F.2d 662 at 667 the court stated "[t]he speci-

fic contents of any individual mine [roof control] plan are de-
termined through consultation between the mine operator and the
[MSHA] district manager." In Peabody Cole Company, 15 FMSHRC 389
(March 1993) the Commission held that "both the Secretary and the
operator are required to enter into good faith discussions and
consultation over mine plans." The Commission in Peabody, supra,
further explained this process and quoted their decision in
Carlson County, 7 FMSHRC 137 as follows:

        The requirement that the Secretary approve
      an operator's mine ventilation plan does not
      mean that an operator has no option but to
      acquiesce to the Secretary's desires regard-
      ing the contents of the plan. Legitimate
      disagreements as to the proper course of
      action are bound to occur. In attempting to
      resolve such differences, the Secretary and
      an operator must negotiate in good faith and
      for a reasonable period concerning a disputed
      provision. Where such good faith negotiation
      has taken place, and the operator and the
      Secretary remain at odds over a plan provi-



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      sion, review of the dispute may be obtained
      by the operator's refusal to adopt the dis-
      puted provision, thus triggering litigation
      before the Commission.

 In this case it appears from the face of the citation, as

well as the undisputed evidence, that the citation was issued
when Somerset with the assistance of MSHA staff wrote a letter
stating that Somerset intended to resume the double split partial
recovery plan without MSHA's approval. The letter was sent to
MSHA and MSHA, in response, issued the citation so Somerset could
have a hearing and Commission decision on the operator's request
that MSHA approve the provision which would allow the mine to re-
sume double splitting of the pillars in question.

 Somerset and MSHA agreed that both of the parties negotiated

in good faith over the disputed provisions of the operator's roof
control plan before an impasse was reached and the citation in
question was issued. I accept the stipulation and find that the
parties negotiated in good faith and for a reasonable period con-
cerning the disputed pillar splitting provisions.

 It is undisputed that financial gain is not motivating

Somerset's desire to double split rather than single split the
pillars in question. The undisputed evidence established that
Somerset is motivated by safety concerns. About the same amount
of coal is produced using either double or single splitting of
pillars. It is also undisputed that because of the additional
timber required for double splitting it's more expensive per ton
of coal mined than single splitting. (Tr. 106-108).

                           IV

 The Secretary's post-hearing brief lists three burden of

proof issues for decision in this case as follows:

      1. Whether the MSHA District Manager acted
      correctly in denying approval of Somerset
      roof control plan for the 5th west panel of
      the Sanborn Creek Mine.

      2. Whether the evidence established that
      double split retreat mining method for the
      5th west panel of the mine was unsuitable and
      unsafe for the mining conditions.

      3. Whether the District Manager's decision
      to deny approval to Somerset's double split


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      retreat mining method for the 5th west panel
      is entitled to be affirmed as long as the
      decision is not arbitrary, capricious or an
      abuse of discretion.

 With respect to the issue MSHA listed above as No. 1, I find

this is a non-issue. There is no allegation or contention in
this case that the District Manager did not act "correctly" in
carrying out his administrative duties. I am mindful that in the
Dole, supra, footnote 10, the court states "MSHA always retains
final responsibility for deciding what had to be included in the
plan." However, the court was surely referring only to the Dis-
trict Manager's administrative duties. The court was not ad-
dressing in any way MSHA's burden of proof when the suitability
of the mine's roof plan provisions are in litigation before the
Commission and its judges.

 The burden of proof suggested by MSHA in the issue listed

above as number "3", is rejected. The Commission in Peabody Coal
Co., 15 FMSHRC 381 at 388 (1993), clearly held, with respect to
the merits of a disputed provision in the mine plan, the Secre-
tary bears the burden of proving that the plan provision at issue
was suitable to the mine in question. See JWR, 9 FMSHRC at 907
(involving ventilation plans), and SOCCO, 14 FMSHRC at 13 (in-
volving safeguards).

                            V

             Further Discussion and Findings

 Dr. Abel in responding to MSHA's criticism of his report,

testified his report and analysis (unlike MSHA's) was based on
coal samples that were taken from the Sanborn Creek Mine. He
also responded to MSHA's criticism of his assumption that the
overburden horizontal pressure was equivalent to the vertical
pressure in the mine. Dr. Abel convincingly showed that the
assumption he used in analyzing and resolving the outburst pro-
blem was more realistic than the alternate assumption suggested
by MSHA.

 I conclude that Dr. Abel's superior qualifications, exten-

sive experience and logical analysis of the problems are entitled
to considerable weight and are persuasive.

 On the record before me I find that MSHA has not established

by a preponderance of the evidence that the double splitting of
the pillars in question is not suitable for the Sanborn Creek
Mine or that single splitting of said pillars is suitable to the

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mine's prevailing geological condition and the mining system used
at the mine.

                          ORDER

 In view of the foregoing, Citation No. 3584806 is VACATED

and Somerset's contest is GRANTED.

                            August F. Cetti
                            Administrative Law Judge

Distribution:

Charles W. Newcom, Esq., SHERMAN & HOWARD, 633 17th Street, Suite
3000, Denver, CO 80202 (Certified Mail)

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

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