Consolidation Coal Company

Plain-English summary

Consolidation Coal was cited at the Humphrey No. 7 and Osage No. 3 mines for roof support, ladder access, and other conditions. Judge Avram Weisberger found that missing cribs violated the roof control plan but was not significant and substantial because the area would have been cribbed before advancing mining created a roof-fall hazard. He found no violation of the weekly examination standard based on unsecured ladders across overcasts, because the standard did not expressly require safe travel across overcasts or specify how ladders must be used. The order modified two citations, vacated one ladder citation, approved settlements, and set a total civil penalty of $1,933.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.220, 75.305, 75.1704-1(c)(2), and 77.206
• Outcome: The missing-crib violation was found non-S&S, the ladder citation was vacated, other citations were modified through settlement, and a $1,933 civil penalty was ordered.
• Key point: The Judge assessed S&S status against the actual timing and conditions of the expected hazard, and declined to infer a ladder-access duty not stated in the cited standard.

Full text (FMSHRC public release)

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 91-178
PETITIONER A.C. No. 46-01453-03946

      v.                             Humphrey No. 7 Mine

CONSOLIDATION COAL COMPANY, Docket No. WEVA 91-193
RESPONDENT A.C. No. 46-01455-03821

                                     Osage No. 3 Mine

                          DECISION

Appearances: Charles M. Jackson, Esq., Caryl Casden, Esq.,
and Tana Adde, Esq., U.S. Department of
Labor, Arlington, Virginia for Petitioner;
Walter J. Scheller, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania for
Respondent.

Before: Judge Weisberger

                   Statement of the Case

 These cases are before me upon petitions for assessment of

civil penalty filed by the Secretary of Labor (Petitioner).
Subsequent to notice, the cases were heard in Morgantown, West
Virginia on July 31, 1991. George H. Phillips, Merven Knotts,
Dale R. Dinning, and John R. Cox, testified for Petitioner.
Samuel O. Statler, and Joseph Frank Mlinarchik, Jr., testified
for Respondent. On September 23, 1991, the parties each filed
proposed findings of fact and a brief.

              Findings of Fact and Discussion

I. Docket No. WEVA 91-193;
A. Citation No. 3308030
1. Alleged Violation

 On October 16, 1990, Respondent was engaged in the

extraction of coal in the No. 5 Butt section by a longwall mining
system. According to Respondent's roof control plan, upon
completion of mining in the No. 5 Butt section, a longwall mining
would commence in the adjacent No. 6 Butt section. The roof

~1812
control plan provides, in essence, that as the No. 5 panel is
being mined, cribs should be maintained in the headgate (neutral)
entry, which will become the tailgate entry once mining commences
in the adjacent No. 6 section.

 Respondent does not contest the observations of MSHA

Inspector George A. Phillips that, on October 16, 1990, cribs had
not been placed in an approximately 100 foot long section in the
future a longwall tailgate entry (i.e. the tailgate entry of the
No. 6 Butt section) in violation of the roof control plan.
Accordingly I find that Respondent did violate its roof control
plan, and hence did violate 30 C.F.R. 75.220 as alleged in the
citation issued by Phillips.

   2. Significant and Substantial

 Petitioner alleges that the violation herein is significant

and substantial. For the reasons that follows I conclude that the
record fails to establish that the violation was significant and
substantial.

  Phillips noted that in the area in question, at Spad 9223,

the roof was good and he was not concerned about any danger.
According to Phillips the No. 5 Butt is bolted and supported
properly. In the same fashion, Mervin Knotts an MSHA Geologist
testified that there was no danger of a roof fall in the cited
area. Essentially, the record does not establish that, in the
normal mining cycle of the No. 5 Butt section, there was created
any hazard of a roof fall in the cited area. However, according
to Phillips, once mining has been completed in the No. 5 Butt
section and mining has commenced in the No. 6 Butt section,
abutement pressure increases as the face advances. According to
Mervin Knotts a geologist who works in an MSHA roof control
section, abutement pressures have been measured 1,000 outby the
face.

 According Phillips and Knotts, if the area in question is

not cribbed, assuming the continuation of the normal mining
process, a point would be reached in the No. 6 Butt section where
the advancing face would create sufficient pressure on the area
in question to cause a roof fall. Further, according to Phillips
and Knotts, such an event is reasonably likely to occur given the
normal mining cycle of the advancing face in the No. 6 Butt
section. According to Phillips, it becomes "critical" (Tr. 65,
83) to support the cited area, when the longwall panel approaches
within 200 feet. Knotts testified that the face would have to be
within 25 feet of the cited area for there to be a reasonable
likelihood of a roof fall occasioned by frontal abutment
pressures. Due to Knotts' expertise I accept his testimony.

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Phillips opined that should a roof fall occur, it would be
reasonably likely for miners to be seriously injured if they
would be in the area of the roof fall. Also, according to
Phillips, in the event of a mine fire, which he indicated was
always a possibility, miners might have to use the entry in
question as an emergency escapeway, should the two regular
escapeways not be passable. Phillips opined that in such an
event, miners could be seriously injured should there be a roof
fall of such a nature as to block or impede ventilation in the
entry in question.

 In analyzing whether the facts herein establish whether the

violation is significant and substantial, I take note of the
recent decision of the Commission in Southern Ohio Coal Company,
13 FMSHRC 912, (1991), wherein the Commission reiterated the
elements required to establish a significant and substantial
violation as follows:

      We also affirm the judge's conclusion that the
      violation was of a significant and substantial nature.
      A violation is properly designated as significant and
      substantial "if, based on 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 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,
      3-4 (January 1984), the Commission explained:

           In order to establish that a violation of a
           mandatory standard is significant and substantial
           under National Gypsum the Secretary 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.

      See also Austin Power Co. v. Secretary, 861 F.2d 99,
      103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021
      (December 1987) (approving Mathies criteria). the third
      element of the Mathies 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., 6 FMSHRC
      1834, 1836 (August 1984)), and also that the likelihood
      of injury be evaluated in terms of continued normal
      mining operations (U.S. Steel Mining Co., Inc. 6 FMSHRC

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1573, 1574 (July 1984); see also Halfway, Inc., 8 FMSHRC 8, 12
(January 1986)." (Southern Ohio, supra at 916-917)

 In the instant case the first element set forth in Mathies,

supra has been met, in that it has been established that
Respondent herein did violate a mandatory standard. Also, the
evidence establishes that the lack of the cribs in the cited area
did contribute to the hazard of a fall occurring at a future date
when the No. 6 Butt section would be developed to the point where
the face would advance close enough to the area in question to
create sufficient pressure so as to create a hazard of a roof
fall. The key element for resolution is thus whether it has been
established that there was a reasonable likelihood that the
hazard of an unsupported roof, contributed to by the lack of
cribs in the future tail gate return entry will result in a roof
fall causing an injury (See U.S. Steel Mining Co., supra, 1836).

 Phillips indicated on cross-examination that it would take

approximately 13 months from the date the citation herein was
issued, (October 16, 1990) for the face in the No. 6 Butt section
to advance to the point where the roof conditions in the cited
area would be critical. In this connection, Samuel O. Statler,
Respondent's longwall coordinator, whose responsibilities include
maintaining the longwall panel and setting up the next panel,
testified that, at the date of the hearing, 15 months subsequent
to the date of the citation was issued, the longwall face in the
No. 6 Butt section had not yet advanced to within 200 feet of the
cited area.

 According to Statler, cribs to build blocks were placed in

the neutral entry of the No. 5 Butt section (the future tailgate
return entry for the No. 6 Butt section) the weekend prior to the
issuance of the citation on Tuesday, October 16. Statler
indicated that Respondent commenced to install cribs. That
weekend it was subsequently noted that there were insufficient
crib blocks to fill in the approximately 100 foot void that was
subsequently cited by Phillips on October 16. Statler testified
that, on Saturday, cribs were brought up the No. 2 entry (intake)
to the crosscut near spad 9224, in order to fill in the void.
According to Statler, it was intended to build cribs as soon as
there would be down time, which he thought was going to occur
within the next week. Statler stated specifically that he would
not have allowed the No. 5 Butt section to be mined out and
retreated beyond the area of the void in the cribbing, without
having first placed cribs in that area.

 In rebuttal, Phillips testified that it would take about 6

or 7 bundles of cribs to fill the uncribbed cited area. He said
that each bundle is ". . . at least 4 feet by probably four feet
three, 3 1/2 feet high" (Tr. 144-145), and accordingly, the
bundles should have been seen by him on October 16, if they were

~1815
in the area. He testified on cross-examination that he does not
have any image of seeing these bundles, and does not remember
having seen them.

 I find Statler's testimony more persuasive, and conclude

that the testimony of Phillips on rebuttal is not sufficient to
have impeached it. Hence, based on the testimony of Statler, I
conclude that, had the void (i.e. the uncribbed area) not been
cited by Phillips, it would have been filled in with cribbing
within a week or so. Further, there was no hazard to miners when
the area was cited. Any hazard would have occurred only if the
area would have remained unsupported by cribs, at the time when
the face had approached within 200 feet as testified to by
Phillips, or 25 feet as testified to by Knotts. It was estimated
by Phillips that it would have taken approximately 13 months
subsequent to October 16, for the face to have reached that
point. I find, that had the area not been cited, the void would
have filled in by Respondent long before there would have been
any hazard of a roof fall due to the advancing of the face.

 Accordingly, for all the above reasons I find that it has

not been established that the violation herein was significant
and substantial.

 Although Respondent was aware of the violation I find the

degree of its negligence to have been low, inasmuch as it
intended to have the situation cured as soon as it was feasible,
and long before the creation of a hazard of a roof fall.
Considering the remaining statutory factors set forth in Section
110(i) of the Act, I find that a penalty of $100 is appropriate
for the violation found herein.

 B. Citation Nos. 3307218, 3308021, 3308022, 3308037, and

3307804

 Subsequent to the hearing, on October 4, 1991, Petitioner

filed a motion to approve a settlement agreement with regard to
Citation Nos. 3307218, 3308021, 3308022, 3308037, and 3307804. A
reduction in penalty from $1,124 to $774 is proposed. I have
considered the representations and documentation submitted in
this Motion, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section 110(i) of the
Act. Accordingly the motion for approval of settlement is
granted.

II. Docket No. WEVA 91-178

A. Citation No. 3314318

   1. Alleged Violation

 On October 4, 1990, Dale Dinning an MSHA

~1816
inspector, inspected Respondent's Humphrey No. 7 mine. He noted
that in the 13 east main return, at 4 overcasts a ladder was
placed leaning up against the sides of the overcast, to enable a
person to climb up to the overcast, cross over, and then climb
down. None of these ladders were secured to the overcast. He
issued a citation alleging a violation of 30 C.F.R. 75.305. In
that "a safe means of travel across the 4 overcasts in the main
return to Kirby shaft just outby 13 East Regulator is not being
provided".

 It is Petitioner's position that, in essence, there is an

"implied duty to provide safe passage" under section 75.305
supra.1 In essence, according to Petitioner this duty is
breached where the means of conducting an examination pursuant to
section 75.305, supra, is hazardous, i.e., the hazardous
conditions of the 8 ladders in issue which were placed on each
side of the 4 overcasts in the main return.2 I do not find
merit in Petitioner's argument for the reasons that follow.

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2. Discussion

             a. Condition of the ladders

 According to Joseph Frank Mlinarchik, Jr., Respondent's

safety inspector the ladders were purchased from a carpenter who
made them, and they are of substantial construction. The ladders
are 10 feet high, 24 inches wide. They were leaning against the
overcast and resting between two metal rails approximately 36
inches apart. The rails protruded horizontally from the tops of
the overcast between 6 to 8 inches.

 Dinning described the hazard posed by the unsecured ladders

as follows:

       Without these ladders being secured and with the
       equipment you got to carry over top of them, you always
       have a chance of this ladder sliding along the wall.
       You're going down the other side, the ladder could kick
       out on the bottom and cause you to fall." [sic] (Tr.
       29)

 In the same fashion, John Cox, a walkaround who accompanied

Dinning, described the hazard as follows:

       The hazard is that the person can go ahead and lose
       their balance. And the ladder gives you the sense, if
       the ladder's secured, if you lose your balance you grab
       something secured it's going to at least protect you
       from your fall or curtail you from a free fall. [sic]
       (Tr. 58)

 Cox also indicated that the unsecured ladders ". . . may

rock back or slip when an individual would be climbing up or down
the ladders because of them being able to get hurt or an accident
to occur." [sic] (Tr.44)

 Essentially, according to Dinning and Cox, the hazard posed

by the unsecured ladders is contributed to by the use of
metatarsal boots, metacarpal gloves, and various equipment worn
by a miner. Also according to Petitioner's witnesses, the lack of
hand rails on the ladders, and the fact that the area in question
is illuminated only by cap lights contribute to the hazard.

 According to Cox when he climbed the ladder at the first

overcast and reached the top it was "wobbly" (Tr.57). He said
that in climbing down he had to swivel around, and reach out with
his leg to go around a protruding rail. He indicated that he then
had to bend down to hold on to the ladder, inasmuch as it
protruded over the top of the overcast only 6 to 8 inches. He
testified that some of the rails protruded from the overcast up

~1818
to 18 inches, which would make it more difficult swivel around
from the top of the overcast to reach the ladder to climb down.

 According to Dinning, the base of the ladders were not as

far away from the bottom of the overcasts, as they should have
been, and he indicated that the ladders were positioned "pretty
well straight up and down" (Tr.20). Cox testified that the
ladders were two to three feet back from the base of the
overcasts, and extended 6 to 8 inches over the top of the first 2
overcasts that were approximately 8 feet high. However, neither
Dinning nor Cox measured the horizontal distance between the
bottoms of the ladders and the bottom of the overcasts. In
contrast, Mlinarchik measured that distance and indicated that
the bottom of one ladder was 4 feet in a horizontal distance from
the base of an overcasts that was 8 feet high, and that the
horizontal distance of a ladder from the bottom of a 6 foot high
overcast was 3 feet. I accept Mlinarchik's testimony with regard
to the distance the base of the ladders extended from the
overcasts inasmuch as it was based upon actual measurement.

 Dinning was asked to describe "the ground conditions

surrounding the overcast" (Tr.20), and he responded as follows:
"Well, in any underground coal mine you have uneven pavement or
bottom. You're going to have coal sluffage, rock, other debris
laying around. So, it's uneven bottom." (Tr. 20-21) He did not
specifically describe the ground conditions in the areas at
issue.

 Cox indicated on direct examination that, in essence, there

were old cement blocks around and under the ladders, and "there
were several large rocks at the bottom" (Tr.51). However on
cross-examination, it was elicited from Cox that the walkways
were clear, and that the blocks that he referred to on direct
examination were at the base of the overcasts, and the ladders
were not set on blocks and crushed wood.

 Cox on rebuttal testified that only the edge points of the

bases of the ladders were dug in the ground, and that the ground
was not smooth. However, earlier he was asked by me whether, in
his opinion the surfaces that the ladders rested on were even,
and he said "I believe so" (Tr.63).

 Mlinarchik, indicated that he climbed all the ladders in

question. He testified that he weighs "probably 250 pounds"
(Tr.77), and that he did not detect any motion in the ladders,
and that the bases of the ladders were even, and on solid ground.
He opined that if a ladder would slide, the protruding rails
would prevent it from sliding further.

 I accept Milanarchiks testimony with regard to the stability

by the ladders, as Cox indicated that the ground was even, a fact
not rebutted by Dinning. Also there is no evidence that the

~1819
surface that the ladders rested on was not flat, or that it
contained objects the would upset the balance of the ladders.
Further, neither Dinning nor Cox, indicated that the ladders were
not sturdy. Nor did they indicate there were any defects in the
construction of the ladders.

      b. Applicability of Section 75.205 supra

      Section 75.305 supra provides as follows:

      In addition to the preshift and daily examinations
      required by this subpart D, examinations for hazardous
      conditions, including tests for methane, and for
      compliance with the mandatory health or safety
      standards, shall be made at least once each week by a
      certified person designated by the operator in the
      return of each split of air where it enters the main
      return, on pillar falls, at seals, in the main return,
      at least one entry of each intake and return aircourse
      in its entity, idle workings, and, insofar as safety
      considerations permit, abandoned areas. Such weekly
      examinations shall be made before any other miner
      returns to the mine. The person making such
      examinations and tests need not be made during any week
      in which the mine is idle for the entire week, except
      that such examination shall place his initials and the
      date and time at the places examined, and if any
      hazardous condition is found, such condition shall be
      reported to the operator promptly. Any hazardous
      condition shall be corrected immediately. If such
      condition creates an imminent danger, the operator
      shall withdraw all persons from the area affected by
      such condition to a safe area, except those persons
      referred to in section 104(d) of the Act, until such
      danger is abated. A record of these examinations,
      tests, and actions taken shall be recorded in ink or
      indelible pencil in a book approved by the Secretary
      kept for such purpose in an area on the surface of the
      mine chosen by the mine operator to minimize the danger
      of destruction by fire or other hazard, and the record
      shall be open for inspection by interested persons.

 A plain reading of the words of Section 75.305 supra.

reveals that there is no explicit provision for safe travel
across overcasts. Nor does Section 75.305 supra contain any
language mandating the manner in which ladders are to be used.
Such a requirement, which goes beyond the scope of the explicit
plain language of Section 75.305, may accordingly not be imposed
based only on an implied duty to provide safe access (see,
Consolidation Coal Co., 2 FMSHRC 1809, 1817 (1980) (ALJ Merlin);
Riverside Cement Co., 1 FMSHRC 2057, 2059 (1979) (ALJ Merlin).
Further there is nothing in the legislative history of the

~1820
statutory provisions of Section 303(f) of the Federal Mine Safety
and Health Act of 1977,3 and the parallel language in the
1969 Act (Public Law 91-173) indicative of a legislative intent
that this section shall encompass a duty to provide safe access.

 Hence, for all the above reasons, I conclude that it has not

been established that Respondent violated Section 75.305, supra.

 B. Citations 3307246, 3307836, 3307837, 3307251 and 3307255.

 At the hearing Petitioner indicated that the parties had

reached a settlement with regard to Citation Nos. 3307246,
3307836, 3307837, 3307251 and 3307255. On October 2, 1991,
Petitioner filed a Motion to Approve a settlement agreement with
regard to this Citations and proposed a reduction and in penalty
from $1,295 to $1,059. I have considered the representations and
documentation submitted in the motion, and I conclude that the
proffered settlement is appropriate under the criteria set forth
in section 110(i) of the Act. Therefore, the Motion to Approve
Settlement is granted.

                         ORDER

 It is ORDERED that: (1) Citation Nos. 3307804, and 3307836

be modified to allege a violation that is not significant and
substantial; (2) Citation No. 3314318 be vacated, and (3)
Respondent pay within 30 days of this decision $1,933 as a civil
penalty.

                               Avram Weisberger
                               Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE

 1. In its brief the Petitioner cites 30 C.F.R.

75.1704-1(c)(2) (which requires ladders in underground mine
escapeways to be anchored securely) and 30 C.F.R. 77.206,
(which requires that in surface mines ladders shall be anchored
securely), for the proposition that the "Mine Act recognizes that
unsecured ladders are hazardous." However the issue presented
herein is not whether ladders that are unsecured are hazardous
per se, but rather whether the condition of the ladders herein
violated section 75.305 supra for which Respondent was cited. As
such, the other standards cited by Petitioner are not relevant in
disposing of the issues herein presented.

 2. Respondent has not contradicted or impeached the

testimony of Dinning that at least once a week an examiner would
be in the area in question. Neither did it contradict or impeach
the testimony of John Cox a union walkaround who, when asked who
is required to cross the ladders, answered as follows:

      A. Anybody that would be walking that area. We have a

--- it has to be traveled at least once a week. And any work that
would be done in that area, people would have to travel across
them in order to go and do the work. (Tr. 53)

      However no evidence in the record sets out in any

detail any facts which tend to establish that, in making an
examination pursuant to section 75.305 supra it is necessary to
traverse the overcasts in the main return.

 3. Section 75.305, supra repeats the language of Section

303(f), supra