Secretary of Labor v. Marfork Coal Company, Inc.

Plain-English summary

A partially fallen kettle bottom in the Horse Creek Eagle Mine roof had one metal strap installed below and off center from the opening. Judge Margaret A. Miller credited the inspector's conclusion that the strap would not catch the remaining dense rock when it fell, so the mine failed to provide the adequate supplemental support required by its roof-control plan. Because miners regularly traveled on foot and in equipment through the area, the roof-fall hazard was reasonably likely to cause serious or fatal injury. The judge affirmed the violation as S&S with moderate negligence and assessed $5,080. Marfork also withdrew its contest of a second $2,901 citation, producing a total penalty of $7,981.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.220(a)(1)
• Outcome: Citation No. 7169624 was affirmed as S&S with moderate negligence and a $5,080 penalty; Citation No. 7169668 was accepted as issued for $2,901.
• Key point: A roof-control plan allows straps only when their placement adequately supports the specific adverse roof condition, not merely because a strap is present.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

January 7, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION, (MSHA),

Petitioner,

v.

MARFORK COAL COMPANY, INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2014-269

A.C. No. 46-09091-336022

Mine: Horse Creek Eagle

DECISION

Appearances:               Emily O. Roberts, U.S.
Department of Labor, Office of the Solicitor, Nashville, Tennessee for
Petitioner;

Melissa M. Robinson,
Jackson Kelly, PLLC, Charleston, West Virginia for Respondent.

Before:                                    Judge Miller

This case is before me on a petition
for assessment of civil penalty filed by the Secretary of Labor, Mine Safety
and Health Administration (“MSHA”), against Marfork Coal Company, pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §§ 815 and 820. This docket involves two 104(a) citations, with a total
proposed penalty of $7,981.00. Prior to hearing, Respondent filed a Motion to
Withdraw Contest of Citation No. 7169668, in which the mine agreed to accept
the citation and pay the penalty as assessed. As a result, only one citation is
left for decision here. The parties presented testimony and evidence at a
hearing held on November 5, 2014 in Charleston, West Virginia.

I.  FINDINGS OF
FACT AND CONCLUSIONS OF LAW

The Horse Creek Eagle mine is an underground
coal mine located in Raleigh County, West Virginia. The mine is owned and
operated by Marfork Coal Company, Inc. Stip. 1. The parties stipulated at
hearing that Marfork is a large operator, there are no issues of jurisdiction
and the penalty as proposed will not hinder the mine’s ability to continue in
business. Stip. 2-6, 10. The mine operates three shifts per day, two of which
are production shifts.

Inspector Clarence Short issued Citation
No. 7169624 on April 24, 2013 pursuant to section 104(a) of the Act for an
alleged violation of 30 C.F.R. § 75.220(a)(1) at the Horse Creek Eagle mine. The
citation alleges that the mine violated its approved roof control plan by
failing to adequately support a 17 inch by 21 inch wide kettle bottom in #2
entry. Short determined that the condition was reasonably likely to result in
an injury that was reasonably expected to be fatal, that the alleged violation
was S&S, that one miner was affected, and that the level of negligence

was moderate. The Secretary has proposed a civil penalty
in the amount of $5,080.00 for this alleged violation.

The Violation

Mine Inspector Clarence Short worked as an
underground coal miner for 14 years prior to joining MSHA. He has been a mine
inspector for six years, and had inspected the Horse Creek Eagle mine prior to
the inspection discussed here. On April 24, 2013 Short was at the mine to
conduct a regular inspection and planned to begin the inspection by looking at
equipment. Rocky Sexton, an employee in the mine’s safety department,
accompanied Short during the inspection. Both men offered testimony at hearing that,
after inspecting a forklift, the two traveled by way of the scoop road to the
next destination. While doing so, Short observed a kettle bottom that, in the
inspector’s opinion, was not adequately supported. Short measured the kettle
bottom to be 17 inches by 21 inches wide and 97 inches above the mine floor. Short
and Sexton observed that a portion of the kettle bottom had fallen out, and
additional support, in the form of a metal strap, had been installed across the
opening. Short believed that, because the strap did not touch the kettle
bottom, and was not positioned in a manner that would prevent the kettle bottom
from falling completely out of the roof, the strap support was not adequate. Sexton
believed that Short should have observed the kettle bottom from a different
angle and that the strap was adequate under the circumstances. The citation was
terminated by setting a post under the kettle bottom as additional support. Based
upon his observations, Short issued Citation No. 7169624 to the mine for its alleged
failure to follow the approved roof control plan.

The mine’s roof control plan requires that when
adverse roof conditions, such as kettle bottoms, are encountered, supplemental
support must be installed to adequately support the roof. Sec’y Ex. G-6, p. 4, ¶
4.[1] The mine
routinely used straps and bolts as additional support. While Short agreed that
straps can be an effective way to shore up a bad roof, he explained that, in
this instance, the single strap, which was off-center, was not adequate. The
strap observed by Short was 10 to 12 inches below the kettle bottom, and did
not adequately cover the area to prevent the kettle bottom from falling. Short
testified that he took a photograph of the strap and kettle bottom which demonstrated
the location of the strap across the kettle bottom. Sec’y Ex. G-4. At hearing, Short
and Sexton agreed that a portion of the kettle bottom had fallen before their
arrival, most likely during the mining cycle. They further agreed that the T-35
channel strap was four feet in length, six inches wide, and was near to the
center across the kettle bottom. However, Short explained that the strap was
not located in a position to hold the kettle bottom when it inevitably fell. Specifically,
he explained that, while the kettle bottom may hit the strap when it falls, the
width of the hole will allow it to fall to the mine floor.  Sexton, on the
other hand, testified that the strap was close to the center, was strong, and would
hold the kettle bottom when it fell. Both suggested that kettle bottoms are unpredictable,
and can fall at any time.

Short has extensive experience with kettle
bottoms, having seen hundreds of them in his career. He explained that a kettle
bottom is a petrified tree trunk, of large size, that can fall at any time. Moreover,
it cannot be determined how far up into the roof a tree extends. The petrified
stumps are dense, weigh about 140 pounds per cubic foot, do not adhere to the
surrounding roof, and, once exposed, must be supported. Short has had training
regarding kettle bottoms and the need for immediate and adequate support. While
it is difficult to know exactly what will happen, Short explained that the kettle
bottom will eventually fall and the strap, if left in the condition he observed,
will not catch or hold the falling material. Sexton also testified generally
about kettle bottoms and added that the kettle shape in the roof is formed by
the petrified tree, which is hard and slick, and it is not unusual for only the
root portion to fall out, leaving a void in the roof.

Sexton, who is currently the manager at
another Marfork property, believed that the strap was installed after the
initial partial fall of the petrified area. He took two photos of the area to illustrate
the strap from a different angle. Marfork Exs. F, G. Sexton testified that the
roof probably fell during the mining cycle and he assumed it was properly supported
after it partially fell out. According to Sexton, the roof was adequately
supported, it had resin bolts as required, and the strap provided additional
support for this area. He explained that the plates were up against the roof
and the strap across the kettle bottom met the requirements of the roof control
plan.

The Dictionary of Mining defines
a “kettle bottom,” in pertinent part, as “[a] smooth rounded piece of rock,
cylindrical in shape, which may drop out of the roof of a mine without warning,
sometimes causing serious injuries to miners . . . . The origin of the feature
is the remains of the stump of a tree that has been replaced by sediments so
that the original form has been rather well preserved.” Dictionary of
Mining, Mineral, and Related Terms 297 (2nd ed. 1997). The Commission and
its judges have relied on the same, or similar, definitions when describing
kettle bottoms and acknowledging the hazard presented by them. IO Coal Co.,
31 FMSHRC 1346, 1347 n. 4 (Dec. 2009); Eagle Energy, 23 FMSHRC 1107
(Oct. 2001); Big Ridge Inc., 34 FMSHRC 2668, 2700 (Oct. 2012) (ALJ)
(“Kettle bottoms are typically round or spherically shaped rock formations that
are not incorporated into the layered shale roof.”); Mountain Edge Mining,
33 FMSHRC 1290, 1292 n. 2 (May 2011) (ALJ) (“‘Kettlebottoms’[sic] are basically
coal-encrusted petrified tree stumps.”).  The court finds, and the parties
agree, that the area cited was a kettle bottom and was subject to the
provisions of the mine’s roof control plan.

In order for the Secretary to
prove a violation of section 75.220(a)(1) he must, first, establish that the
provision allegedly violated is part of the approved and adopted plan, and,
second, that the condition cited violated the plan provision. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1281 (Dec. 1998) (citing Jim Walter
Resources, Inc., 9 FMSHRC 903, 907 (May 1987)). Here, the roof control
plan, requires that kettle bottoms have additional, adequate support. There is
no question that the area cited was a kettle bottom and that the roof control plan
required additional support. Further, there is no dispute that there was a
strap in place across the kettle bottom and the use of such a strap is one of
the ways allowed by the plan to provide additional support.  The difficulty
comes in determining whether this particular strap, positioned as it was in
this instance, provided adequate support for this kettle bottom. I find
that the strap did not provide adequate support and, therefore, the mine failed
to comply with its roof control plan and violated section 220(a)(1).

The Commission has explained that roof control plan
provisions are enforceable as mandatory standards. Martin County Coal Corp.,
28 FMSHRC 247, 254 (Mar. 2011) (ALJ) (citing UMWA v. Dole, 870 F.2d 662,
671 (D.C. Cir. 1989); Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409
(D.C. Cir. 1976); Energy West Mining Co., 17 FMSHRC 1313, 1317 (Aug.
1995); Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987) (“JWR”). When
interpreting a plan provision a judge should apply the same law which governs
the interpretation of regulatory standards. Id. (citing Energy West,
17 FMSHRC at 1317). Accordingly, when the language of the plan provision is
clear, the provision should be enforced as written “unless the regulator
clearly intended the words to have a different meaning or unless such a meaning
would lead to absurd results.” Id. (citing Utah Power & Light Co.,
11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC
1555, 1557 (Aug. 1993)).

I find that the plan provision
is clear. Marfork argues that the provision is not ambiguous, and that the mine
may support adverse roof conditions with the type of strap used in this
instance. Marfork Br. 8,10. I agree with Marfork that the plan language is
unambiguous, and that straps may be used to support kettle bottoms. However,
Marfork fails to account for the plan’s requirement that the additional support
“adequately support the roof.” Sec’y Ex. G-6, p. 4, ¶ 4. “In the absence of a
statutory or regulatory definition of a term, the Commission applies the
ordinary meaning of that term.” Twentymile Coal Co., 30 FMSHRC 736, 750
(Aug. 2008). The dictionary defines “adequate,” the adjective form of the
adverb at issue, as “sufficient for a specific requirement[.]” Webster’s New
Collegiate Dictionary 14 (1979).  The Secretary, in his brief, does not directly
address whether the language of the plan is ambiguous, and instead only
advances a dictionary definition of the term “adequate.” Sec’y Br. 3. He argues
that the dictionary definition of the term, in the context of mine roof
control, requires “support that would prevent roof material from falling on a
miner. Support that would not prevent such an occurrence is inadequate.” Id.
While I agree with the Secretary’s analysis, I base my analysis on the dictionary
definition supplied here.

In the context of the roof
control plan provision at issue, the additional support provided by the strap
must be sufficient to satisfy the specific requirement of preventing roof falls.
In this case, and as more fully discussed below, the cited strap, while an
approved supplemental support device, was not positioned to provide adequate
support. If the condition were left uncorrected, kettle bottom material would
fall out of the openings on the side of the strap, or hit the strap, then fall.
In either case, the support was inadequate and material would fall into an area
where miners traveled.

Commission judges have found
violations under similar circumstances where kettle bottoms were determined to
be inadequately supported. In Big Ridge Inc., 34 FMSHRC 2668, 2700 (Oct.
2012) (ALJ), Judge Zielinski found that the presence of multiple unsupported,
or only partially supported, kettle bottoms, ranging in size from approximately
14 to 20 inches in diameter to smaller, violated section 75.202(a). While some
kettle bottoms had support, the judge found that it was not adequate because
the support would not prevent the entire area from falling. Moreover, in IO
Coal Co., 30 FMSHRC 847 (Aug. 2008) (ALJ)[2], Judge Barbour affirmed a
violation of section 75.220(a)(1) where a mine operator failed to comply with a
roof control plan provision that required kettle bottoms to be addressed with
supplemental support in addition to the primary support already required. There,
the judge credited the testimony of an experienced inspector that he saw
multiple unsupported kettle bottoms. Id. at 865-866.

There is no dispute that the roof control
plan in place at the time required additional support in the area of this
kettle bottom. The mine attempted to meet the requirements of the plan by
installing the strap across the area. The violation occurred, however, because
this single strap was not enough to adequately support the area. I credit the
testimony of Short that the strap was off-center and the remaining petrified stump
would have fallen out through the area that was not strapped, or would have hit
the strap and then fallen. While I agree with Marfork that its roof control
plan does not require the strap to be centered, here, I credit the inspector’s
testimony that the position of this strap did not adequately support this
particular kettle bottom. While a different “off center” strap may provide
adequate support for a different kettle bottom under other circumstances, my
finding in this case is based on the credible testimony of the inspector that
this strap, positioned as it was, did not provide adequate support for the kettle
bottom. In any event, I find that the Secretary has demonstrated that the
kettle bottom was not adequately supported and a violation of the roof control
plan occurred as cited. 

Gravity
and S&S

Short observed the size of the kettle bottom area, and
the fact that the area was traveled regularly by various miners on equipment
and on foot. He testified that, given the uncertain nature of kettle bottoms,
the fact that they fell in large pieces, and the fact that the area was
traveled on each shift, he believed that the violation was S&S.

A “significant and substantial” violation is described
in section 104(d)(1) of the Mine Act as a violation “of such nature as could
significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is
properly designated significant and substantial “if based upon the particular
facts surrounding that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature.” Cement Division, National Gypsum Co., 3 FMSHRC 822, 825
(Apr. 1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984), the Commission explained its interpretation of the term “significant and
substantial” to be:

In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature.

The difficulty with finding a violation S&S
normally comes with the third element of the Mathies formula, in which
the Secretary must establish that there is a reasonable likelihood that the
hazard will result in an injury. The Commission has explained that the third
element of the formula “requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event in which
there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836
(Aug. 1984). The Commission discussed the third element of the Mathies
test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257
(Oct. 2010) (affirming an S&S violation for using an inaccurate mine map). The
Commission clarified that the “Secretary need not prove a reasonable likelihood
that the violation itself will cause injury” but that the hazard created would
cause an injury. Id. at 1280-81. The Commission reaffirmed its position
in Cumberland River Coal, 33 FMSHRC 2357, 2365 (Oct. 2011).

Short testified that part of the kettle bottom had
already fallen out, and the remainder would eventually fall. Sexton agreed that
he did not know when the remainder would fall from the roof, but it could happen
at any time. Sexton also agreed that there could be a very heavy tree trunk
remaining in the roof and a fall of the material could strike and kill a miner.
Sexton, however, believed that the strap would catch and hold any part of the
kettle bottom that fell.  Short, on the other hand, stated that, given the
location of the single strap, the roof fall would not be stopped, leaving a
large, heavy piece of roof to fall to the ground. If any person were in the
area when that heavy piece of roof fell, it would most certainly cause a
serious injury or death. Short testified that he relied on his experience and has
observed kettle bottoms that fell and hit the floor with a great force,
crushing everything under it. He explained that a roof fall could also result
in severe lacerations or, given the weight of the falling material, crush and
kill a miner. The area was traveled regularly, thereby exposing miners to the
roof fall. The examiner was in the area daily, and the kettle bottom was near
an area were rock dust and other supplies were stored. While the scoop and
front end loader have canopies, miners were often on foot, particularly when loading
and unloading supplies. I find that, while the supplies may not be accessed
every shift, it is fair to expect daily vehicle and foot traffic in the area. I
credit the testimony of Inspector Short and find that, if the kettle bottom
were left in this condition, it would fall, resulting in a serious injury or
death.

The mine installed a post to add adequate support to
this particular area of the roof and to abate the violation. According to
Sexton, the post created an obstacle to maneuver around and made it difficult
for equipment traveling in the area. However, Short explained that the post was
needed to sufficiently support this area of the roof.

Roof, face and rib falls are one
of the leading causes of injuries and death in underground coal mines. Safety
Standards for Roof, Face and Rib Support, Final Rule, 53 Fed. Reg. 2354, 2354,
2369 (Jan. 27, 1998). To combat these hazards, Congress directed that mine
operators develop and follow roof control plans tailored to the roof conditions
and mining system of each mine. See 30 U.S.C. § 862(a) (setting forth
general requirements for plans “to protect persons from falls of the roof or
ribs.”). The Commission, in echoing the concerns of Congress and the Secretary,
has stated that the intent of the roof control provision is to provide broad
protection against roof falls, which are the leading cause of injury and death
in underground coal mines. Elk Run Coal Co., 27 FMSHRC 899, 904 (Dec.
2005).

The Commission and its judges have
recognized the hazardous, S&S nature of kettle bottoms. Eagle Energy,
23 FMSHRC 1107 (Oct. 2001); Big Ridge Inc., 34 FMSHRC 2668, 2700 (Oct.
2012) (ALJ); IO Coal Co., 30 FMSHRC 847 (Aug. 2008) (ALJ). In Big
Ridge Inc., 34 FMSHRC 2668, 2700 (Oct. 2012) (ALJ), the judge, in finding
that the violation was S&S, cited the discrete safety hazard presented by
an unsupported kettle bottom, being struck by a falling kettle bottom, and that
a rock 14 to 20 inches in diameter “could easily result in broken bones or lost
workdays, injuries that would be reasonably serious.” Id. at 2701. In
discussing the likelihood of an injury as it relates to the S&S analysis,
the judge relied upon evidence that the kettle bottoms were in an active
working section where miners were exposed to the condition. Id. at 2702.
Further, in IO Coal Co., 30 FMSHRC 847 (Aug. 2008) (ALJ), Judge Barbour upheld
the Secretary’s S&S designation where he found that eight miners worked and
traveled in the area of the kettle bottoms. Id at 868.

I have found that there is a
violation of a mandatory standard. I find that the violation creates a safety
hazard, that of a fall of very heavy material from the roof in an area where
miners work and travel. The hazard of a roof fall of this size will lead to a
very serious injury, and even death. Therefore, I find the violation to be
significant and substantial.

Negligence

Inspector Short found that the
violation was the result of moderate negligence. He did so based primarily on
the fact that the mine had made an attempt to correct the condition and adhere
to its roof control plan. He explained that the condition most likely existed since
the area was first mined, about 2-4 weeks prior to the citation. While the mine
installed a strap at that time, the strap did not provide adequate support. The
strap should have either been up against the kettle bottom, or better
positioned to block the fall of material. The mine could have used two or more straps
in this large of an area. Given the inspector’s testimony, I accept his
designation that the citation was the result of moderate negligence.  

II.  PENALTY

The principles governing the
authority of Commission administrative law judges to assess civil penalties de
novo for violations of the Mine Act are well established. Section 110(i) of the
Mine act delegates to the Commission and its judges “authority to assess all
civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act requires
that, in assessing civil monetary penalties, the ALJ must consider six
statutory penalty criteria which include the history of violations, the size of
the operator, the negligence, gravity, the ability to continue in business and
good faith abatement. 30 U.S.C. § 820(i). In keeping with this statutory
requirement, the Commission has held that “findings of fact on the statutory
penalty criteria must be made” by its judges. Sellersburg Stone Co., 5
FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Once
findings on the statutory criteria have been made, a judge’s penalty assessment
for a particular violation is an exercise of discretion that includes a
consideration of the penalty criteria and the deterrent purpose of the Act. Cantera
Green, 22 FMSHRC 616, 620 (May 2000).

In this case, the operator
is large, has no unusual history of these types of violations, and abated the condition
in good faith. The inspector indicated that the negligence was moderate and, given
the facts discussed above, I agree. I have discussed the gravity above and I
assess a penalty of $5,080.00 for Citation No. 7169624.

On October 27, 2014
Respondent filed a Motion to Withdraw Contest in which it sought to withdraw
its contest of Citation No. 7169668, accept the citation as issued, and pay the
originally proposed penalty of $2,901.00. The Secretary does not oppose this
motion. Accordingly, Respondent’s motion is GRANTED.

III.  ORDER

Given my findings, I assess
a total penalty of $7,981.00 for both the citation addressed at hearing,
Citation No. 7169624, and Citation No. 7169668, which Respondent has agreed to
pay as issued. The Respondent, Marfork Coal Company, is hereby ORDERED
to pay the Secretary of Labor the sum of $7,981.00 within 30 days of the date
of this decision.

/s/
Margaret A. Miller

Margaret A. Miller

Administrative Law
Judge

Distribution by certified mail:

Emily Roberts, U.S. Dept. of Labor, 211 7th
Ave. North, Suite 420, Nashville, TN 37219

Melissa Robinson, Jackson Kelly, PLLC, 1600 Laidley
Tower, P.O. Box 553, Charleston, WV 25322

[1] The cited page
number corresponds to the page number of the roof control plan approved on
October 14, 2010, and not the page number of the exhibit, which includes
numerous supplements to the originally approved roof control plan.

[2] While the
Commission granted review of this case, it only addressed the judge’s findings
regarding the mine operator’s alleged unwarrantable failure to comply with the
standard. The Commission did not address the judge’s findings regarding the
fact of violation or the S&S nature of the violation. IO Coal Co.,
31 FMSHRC 1346
(Dec. 2009).