Secretary of Labor (MSHA) v. Westmoreland Coal Company (ALJ decision, June 25, 1981)

Plain-English summary

The case arose from a roof fall at Westmoreland Coal Company's Hampton No. 3 Mine that killed a section foreman and an assistant mine foreman. MSHA charged the company over its pillaring practices and failure to set roof supports required by its approved plan. Judge Joseph B. Kennedy found the partial pillaring charge doubtful, but said the failure to install supports before pulling a stump caused the roof fall. He considered a lack of clarity in the roof control plan and management changes made afterward. The parties agreed to reduce the proposed $13,000 assessment to $4,000, and the judge approved the settlement, allocating $1,000 to the first charge and $3,000 to the second.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.201-2(d), partial pillaring, with § 75.201-2(e) discussed; the second charge concerned the approved roof control plan.
• Outcome: Settlement approved for $4,000, subject to payment by July 15, 1981.
• Key point: The judge found the first charge doubtful and the roof control plan charge clearly established when approving the reduced settlement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041 JUN 25 1981

SECRETARY OF LABOR,
: Civil Penalty Proceeding
MINE SAFETY AND HEALTH
:
ADMINISTRATION (MSHA),
: Docket No. WEVA 80-614
Petitioner
: A.O. No. 46-01283-03043F
:
V. : Hampton No. 3 Mine
:
WESTMORELAND COAL COMPANY,
:
:

Respondent
:

DECISION AND ORDER

On June 24, 1981, this matter came on for a hearing on the parties' motion to approve settlement of charges that the operator's faulty pillaring practices in the No. 9 Right Section of the Hampton No. 3 Mine resulted in the deaths of a section foreman and an assistant mine foreman. The settlement proposed is a reduction in the amount initially assessed from $13,000 to $4,000.

The parties' prehearing submissions and the information adduced at the settlement hearing showed that:

A. The charge that the operator had engaged in partial pillaring practices in violation of 30 C.F.R. 75.201-2(d) was of doubtful validity because (1) the adverse roof conditions and falls of roof in the 4th and 5th pillars in the third pillar line may have justified leaving substantial portions of the outby wings (30 C.F.R.
75.201-2(e)), and because of (2) the inconclusive nature of the testimony as to the size of the partial pillars, if any, left in the challenged pillar line.

B. The charge that the operator violated its approved roof control plan by failing to set trisets or cribs before pulling the pushout stump in the No. 5 pillar in the fourth pillar line (the scene of the accident) was clearly established as the proximate cause of the roof fall that killed the two foremen and endangered the lives of three other miners. In mitigation, the operator showed (1) a disturbing lack of clarity (now corrected) in the roof control plan, a deficiency for which MSHA shares respon- sibility, and (2) the institution of management controls that will effectively preclude the exercise of bad judg- ment that led the foremen to risk their lives and those of the contract miners.

In the light of the foregoing, the parties proposed to amend their motion so as to allocate $1,000 to the first violation and $3,000 to the second violation. Based on an independent evaluation and de novo review of the circumstances the trial judge concurred and directed that the motion to approve settlement be granted.

Accordingly, it is ORDERED that the motion to approve settlement, as amended, be and hereby is GRANTED. It is FURTHER ORDERED that the operator pay the amount of the settlement agreed upon, $4,000, on or before Wednesday, July 15, 1981 and that subject to payment the captioned matter be DISMISSED.

Joseph B. Kennedy
Administrative Law Judge

Distribution:

David Street, Esq., U.S. Department of Labor, Office of the Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified Mail)

Robert Steinberg, Esq., Crowell & Moring, 1100 Connecticut Ave., NW, Washington, DC 20036 (Certified Mail)